Medical Education in India

Right to education includes: Right to safety: SC

2009-04-24T07:22:00.000-07:00

Avinash Mehrotra a public sprit activist, demanding enforcement of children’s fundamental right education in a safe and secure environment by filing a Writ Petition (Civil) No.483 of 2004, decided on April 13, 2009. The verdict came from a bench headed by Justice Dalveer Bhandari and his companion Judge Lokeshwar Singh Panta.

The Hon’ble Supreme Court on April 13, 2009 a day before Fire Safety Day i.e. on 14^th April, ordered the installation of fire-extinguishin equipment and implementation of building safety measures in all government and private schools across India to check the recurrence of any mishap like the July 2004 school fire in Kumbakonam, Tamil Nadu, that claimed the lives of 93 children.

In view of what has happened in Lord Krishna Middle School in District Kumbakonam and other incidents which have been enumerated, it has become imperative that each school must follow the bare minimum safety standards, in addition to the compliance of the National Building Code of India, 2005, in particular Part IV - Fire & Life Safety and the Code of Practice of Fire Safety in Educational Institutions (IS 14435:1997) of the Bureau of Indian Standards. The said safety standards are enumerated herein below:

3.1 Fire Safety Measures in Schools:

· Provision of adequate capacity and numbers of fire extinguishers of ISI marks to be provided in eye-catching spots in each block of the school.

· First Aid kits and necessary medicines should be readily available in the school.

· Provision of water tank and separate piping from the tank with hose reel to the ground floor and first floor.

· Fire fighting training to all teachers and students from X to XII standards.

· Fire Task Force in every school comprising of Head of the institution, two teachers / staff members and one member from the Fire and Rescue Department should be constituted. The Fire & Rescue Department member shall monitor and make fire safety plan and conduct inspections once in every three months.

· Display of emergency telephone numbers and list of persons to be contacted on the notice board and other prominent places.

· Mock drills to be conducted regularly. Fire alarm to be provided in each floor and for rural schools separate long bell arrangement in case of emergency.

· All old electrical wiring and equipment shall be replaced with ISI mark equipments and routine maintenance conducted by the School Management in consultation with the Fire and Rescue Department.

· No High Tension lines should run inside or in close proximity to the school. Steps must be taken to shift them if they are already there.

· The Fire and Rescue Department shall frame guidelines with “DOS and DON'Ts” for schools and issue a fitness certificate, which shall be renewed periodically.

3.2 Training of School Teachers & Other Staff:

· The teachers along with other staff shall be trained to handle safety equipment, initiate emergency evacuations and protect their students in the event of fire and other emergencies by the Fire and Rescue Department.

· They shall also be trained in providing emergency first-aid treatment.

· There shall be a School Safety Advisory Committee and an Emergency Response Plan drafted by the Committee in approval and consultation with the concerned Fire & Rescue Department.

· Emergency Response Drills conducted at regular intervals to train the students as well as the school staff.

· All schools to observe Fire Safety Day on 14th of April every year with awareness programs and fire safety drills in collaboration with the Fire and Rescue Department.

3.3 School Building Specifications:

· The school buildings shall preferably be a `A' Class construction with brick / stone masonry walls with RCC roofing. Where it is not possible to provide RCC roofing only non-combustible fireproof heat resistance materials should be used.

· The nursery and elementary schools should be housed in single storied buildings and the maximum number of floors in school buildings shall be restricted to three including the ground floor.

· The School building shall be free from inflammable and toxic materials, which if necessary, should be stored away from the school building.

· The staircases, which act as exits or escape routes, shall adhere to provisions specified in the National Building Code of India 2005 to ensure quick evacuation of children.

· The orientation of the buildings shall be in such a way that proper air circulation and lighting is available with open space all round the building as far as possible.

· Existing school buildings shall be provided with additional doors in the main entrances as well as the class rooms if required. The size of the main exit and classroom doors shall be enlarged if found inadequate.

· School buildings have to be insured against fire and natural calamities with Group Insurance of school pupils.

· Kitchen and other activities involving use of fire shall be carried out in a secure and safe location away from the main school building.

· All schools shall have water storage tanks.

3.4 Clearances & Certificates:

· Every School shall have a mandatory fire safety inspection by the Fire and Rescue Services Department followed by issuance of a ‘no objection certificate’ to the School as a mandatory requirement for granting permission for establishing or continuation of a School.

· An Inspection Team consisting of experts like a Civil Engineer, a Health Officer, a Revenue Officer, a Psychologist, a Fire Officer, a local body officer and a development officer besides the educational authorities shall carry inspection and assessment of infrastructural facilities before the commencement of each academic year. The Team shall submit its Inspection Report to the concerned district Chief Educational Officer.

· The building plans for schools shall be prepared only by a Government certified engineer and the PWD Executive Engineer concerned should inspect the building and award a structural stability certificate. Stability Certificates shall be issued by the State or Central Government Engineers only and shall be mandatory for granting permission for establishing or continuation of a School.

· In every district, one Recognition Committee headed by a retired judge shall be constituted. Officials from Revenue Department, Public Works Department, Fire Service, Electricity Board, Health and Education Department, a reputed NGO shall be members. They shall visit the schools periodically or at least the erring institutions as listed by the Chief Education Officer.

· Conditional recognition / approval shall never by resorted to for any school.

Hon’ble Apex Court concluded that “In the end, we should need to do little but enforce existing laws and encourage States in their own well-intentioned safety programmes. However, in the years since the fire at the Lord Krishna Middle School, some States have moved slowly and safety standards have varied in quality across States. These delays and variations have subjected millions more school children to danger from fire, earthquakes and other causes, when simple enhancements could offer much greater protection. Articles 21 and 21-A of the Constitution requires that India's school children receive education in safe schools. In order to give effect to the provisions of the Constitution, we must ensure that India's schools adhere to basic safety standards without further delay.

It is the fundamental right of each and every child to receive education free from fear of security and safety. The children cannot be compelled to receive education from an unsound and unsafe building.

In view of what happened in Lord Krishna Middle School in District Kumbakonam where 93 children were burnt alive and several similar incidences had happened in the past, therefore, it has become imperative to direct that safety measures as prescribed by the National Building Code of India, 2005 be implemented by all government and private schools functioning in our country. Court directed that:

· Before granting recognition or affiliation, the concerned State Governments and Union Territories are directed to ensure that the buildings are safe and secured from every angle and they are constructed according to the safety norms incorporated in the National Building Code of India.

· All existing government and private schools shall install fire extinguishing equipments within a period of six months.

· The school buildings be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely.

· Evaluation of structural aspect of the school may be carried out periodically. We direct that the concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction in duty must attract immediate disciplinary action against the concerned officials.

· Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments.

In view of the importance of Article 21A, it is imperative that the education which is provided to children in the primary schools should be in the environment of safety.

The court ordered implementation of various safety measures against fire and addressing other security concerns of schools within six months. The Education Secretaries of each State and Union Territories are directed to file an affidavit of compliance of this order within one month after installation of fire extinguishing equipments. Matter is listed on December 07, 2009 to ensure compliance of this order.

Constitutional obligations of the State: Quality of Education

2009-04-24T07:10:00.000-07:00

Constitutional obligations of the State: Quality of Education

History in India:

Education occupies an important place in our Constitution and culture. There has been emphasis on free and compulsory education for children in this country for a long time. There is a very strong historical perspective. The Hunter Commission in 1882-83, almost 125 years ago, recommended Universal Education in India. It proposed to make education compulsory for the children. [Para 20]

The Government of India Act, 1935 provided that "education should be made free and compulsory for both boys and girls." While debating in a bill in Imperial Legislation Council in 1911, Shri Gopal Krishna Gokhale strongly advocated that elementary education should be both compulsory and free. [Para 21]

Our original Framers of the Constitution placed free and compulsory education in the Directive Principles. The un-amended Article 45 provided that:

"The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." [Para 22]

The Kothari Commission on Education set up by the Government of India in 1966 strongly recommended free and compulsory education for children up to 14 years. The Commission observed that there is no other way for the poor to climb their way out of this predicament. [Para 23]

Education occupies a sacred place within our Constitution and culture. Article 21A of the Constitution, adopted in 2002, codified this Court's holding in Unni Krishnan, J.P. & Others v. State of Andhra Pradesh & Ors. (1993) 1 SCC 645, in which we established a right to education. Parliament did not merely affirm that right; the Amending Act placed the right to education within the Constitution's set of Fundamental Rights, the most cherished principles of our society. [Para 24]

As the Court observed in Unni Krishnan (supra), Para 8:

"The immortal Poet Valluvar whose Tirukkural will surpass all ages and transcend all religious said of education:

"Learning is excellence of wealth that none destroy;

To man naught else affords reality of joy." [Para 24]

Education today remains liberation - a tool for the betterment of our civil institutions, the protection of our civil liberties, and the path to an informed and questioning citizenry. [Para 25]

Then as now, we recognize education's "transcendental importance" in the lives of individuals and in the very survival of our Constitution and Republic. In the years since the inclusion of Article 21A, we have clarified that the right to education attaches to the individual as an inalienable human right. [Para 25]

We have traced the broad scope of this right in R. D. Upadhyay v. State of A.P. & Ors. AIR 2006 SC 1946, holding that the State must provide education to all children in all places, even in prisons, to the children of prisoners. We have also affirmed the inviolability of the right to education. [Para 26]

In Election Commission of India v. St. Mary's School & Ors. (2008) 2 SCC 390, we refused to allow the State to take teachers from the classroom to work in polling places. While the democratic State has a mandate to conduct elections, the mundane demands of instruction superseded the State's need to staff polling places. Indeed, the democratic State may never reach its greatest potential without a citizenry sufficiently educated to understand civil rights and social duties, Bandhua Mukti Morcha v. Union of India & Ors., (1997) 10 SCC 549. These conclusions all follow from our opinion in Unni Krishnan. Education remains essential to the life of the individual, as much as health and dignity, and the State must provide it, comprehensively and completely, in order to satisfy its highest duty to citizens. [Para 26]

Unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent or guardian of every child, and on the child herself. Article 21A, which reads as follows, places one obligation primarily on the State:

"The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." [Para 27]

By contrast, Article 51A (k), which reads as follows, places burden squarely on the parents:

"Fundamental duties - it shall be the duty of every citizen of India who is the parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years." [Para 28]

The Constitution directs both burdens to achieve one end: the compulsory education of children, free from the fetters of cost, parental obstruction, or State inaction. The two articles also balance the relative burdens on parents and the State. Parents sacrifice for the education of their children, by sending them to school for hours of the day, but only with a commensurate sacrifice of the State's resources. The right to education, then, is more than a human or fundamental right. It is a reciprocal agreement between the State and the family, and it places an affirmative burden on all participants in our civil society. [Para 29]

This Court has routinely held that another fundamental right to life encompasses more than a breath and a heartbeat. In reflecting on the meaning of "personal liberty" in Articles 19 and 21, we have held that "that `personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to makeup the `personal liberties' of man." Kharak Singh v. State of U.P. & Ors. AIR 1963 SC 1295, para 16. [Para 30]

Similarly, we must hold that educating a child requires more than a teacher and a blackboard, or a classroom and a book. The right to education requires that a child study in a quality school, and a quality school certainly should pose no threat to a child's safety. We reached a similar conclusion, on the comprehensive guarantees implicit in the right to education, only recently in our opinion in Ashoka Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1. [Para 30]

The Constitution likewise provides meaning to the word "education" beyond its dictionary meaning. Parents should not be compelled to send their children to dangerous schools, nor should children suffer compulsory education in unsound buildings. Likewise, the State's reciprocal duty to parents begins with the provision of a free education, and it extends to the State's regulatory power. No matter where a family seeks to educate its children, the State must ensure that children suffer no harm in exercising their fundamental right and civic duty. States thus bear the additional burden of regulation, ensuring that schools provide safe facilities as part of a compulsory education. [Para 31]

In the instant case, we have no need to sketch all the contours of the Constitution's guarantees, so we do not. We merely hold that the right to education incorporates the provision of safe schools. [Para 32]

This Court in Ashoka Kumar Thakur's case (supra) observed as under:

"It has become necessary that the Government set a realistic target within which it must fully implement Article 21A regarding free and compulsory education for the entire country. The Government should suitably revise budget allocations for education. The priorities have to be set correctly.

The most important fundamental right may be Article 21A, which, in the larger interest of the nation, must be fully implemented. Without Article 21A, the other fundamental rights are effectively rendered meaningless. Education stands above other rights, as one's ability to enforce one's fundamental rights flows from one's education. This is ultimately why the judiciary must oversee Government spending on free and compulsory education." [Para 33]

In view of the importance of Article 21A, it is imperative that the education which is provided to children in the primary schools should be in the environment of safety. [Para 34]

Duty of State:

The State is duty bound to protect and secure lives of students across the country by ensuring the minimum safety standards. The State is liable to promulgate policies, which ensure the implementation of the safety laws and procedures laid down. The State must ensure that the government-certified engineer visits each and every school at least once in two years and issued a ‘stability certificate’. If the building is found to be in good condition and all safety precautions are met. [Para 11]

There should be strict supervision on those engineers who can issue these kinds of certificates.

Current scenario:

It is alleged that most of the Indian private schools in district towns are dull, claustrophobic, cramped and often have derelict structures with no fire safety systems, playgrounds or libraries. Most of these private schools in the district towns are located in a warren of congested lanes and school authorities often lock the gates when classes are on to keep children from slipping out of the school. Most of the schools in the villages and small towns are still made of thatched roofs made from coconut leaves or other cheap and easily available materials to avoid the cost of construction in flagrant violation of the building laws. [Para 11]

Prayer:

It is prayed in the petition that a committee of jurists, legal experts and lawyers be constituted to formulate a comprehensive report in a time bound plan for carrying out reforms in the safety standards as prescribed in the schools and to direct all the schools to implement the plan, alternately to come forward with their own plan for providing safety measures in the schools. [Para 12]

Fundamental Rights violations:

It is further prayed that this Court should evolve model safety standards as a part of Article 21 and for free and fair exercise of fundamental rights under Articles 14, 15 and 19 of the Constitution of India. [Para 12]

Accountability:

In this petition, we are called upon to determine what, if any, safety standards schools should have and how, if at all, schools have not met those standards. [Para 13]

Standards for quality:

The National Building Code of India, 2005, promulgated by the Bureau of Indian Standards, provides detailed instructions on how to construct fire-safe buildings. Tables and drawings set standard for schools particularly, including number and type of fire extinguishers, quantity of water necessary for a proper fire suppression system, and many more, providing an engineer-tested, nationally applicable set of standards that our schools could follow. In the introductory materials for the Code, the Bureau of Indian Standards affirms the petitioner's claim in this case:

"The hazards of fire in educational building can be considerably lowered by adoption of certain predetermined fire safety measures with regard to proper planning of buildings, choice of proper materials and components, electrical equipments and making suitable provisions for fire detection and suppression system." [Para 14]

Respondents: who are duty bound?

This Court issued notice to the Union of India, State Governments and the Union Territories. Replies and counter affidavits have been received from almost all the State Governments and the Union Territories and also the Union of India. This Court appointed Mr. Colin Gonsalves, learned Senior Advocate as Amicus Curiae. He also suggested some guidelines which need to be followed by all schools in the country. [Para 15]

27 States and Territories have filed affidavits in this Court detailing the current safety of their schools and plans for improvement The States admit that many schools do not meet self-determined safety standards, let alone the more rigorous standards of the National Building Code. The affidavits generally focus on plans for improvement, rather than schools' current conditions, because much work remains. [Para 16]

Where States have provided detailed counts of schools and installed safety features, it emerges that thousands of schools lack any fire suppression equipment. Thousands more schools do not have adequate emergency egress or non-inflammable roofs. Unfortunately, most States failed to provide any quantitative data in their affidavits. [Para 16]

Instead these States filed vague plans for future renovations and piecemeal schemes to improve schools safety. Little technical advice informs some of the plans, and few have any admitted force of law or fail-safe or follow-up mechanism from the State Government. [Para 16]

While we applaud States' efforts to improve schools, we find that States have done too little, too late. With the guidance of the National Building Code and affidavits in this case, we view Mr. Gonsalves's brief as crystallizing a minimum set of safety standards for schools. By their own admission, States have not met these standards and they have welcomed this Court's guidance in achieving improvement. We will consider in more detail the exact standards required and relief sought later in this view. It is clearly borne out from the affidavits filed by the respondents that even the basic fire extinguishing equipments have not been installed in most of the schools. Majority of the schools do not have emergency exits. The schools must realize and properly comprehend the importance of the fire safety equipments, but unfortunately most of the schools do not have fire extinguishing equipments and consequently, the schools are not following the minimum safety standards prescribed by the Building Code, the Bureau of Indian Standards. [Para 17]

Despite best intentions and frequent agreements, these codes and safety standards rarely bind builders in law or practice. State or local governments must enact Building Codes before any may have the force of law. Some Building Codes exist in law, but few states or municipalities have enacted a standard as rigorous as the National Building Code. [Para 18]

Weak enforcement often then moots the enacted code's effectiveness, no matter the Code's intent, whether fire safety officials, routinely speak to the need for meaningful standards with real enforcement. [Para 18]

In the petition, the petitioner does not seek damages or court's finding on culpability. The main intention of filing this petition is to protect against similar future tragedies by improving the conditions of the schools in our country. [Para 19]

Article published on youthejournalist.com

2009-04-11T21:07:00.000-07:00

Medical Education in India: Totally a bad scenario
( MUKESH YADAV )
( Saturday, August 30, 2008 )
The rapid privatization of medical education in India and mushrooming of private medical colleges confirms the claim of many middle-class Indian - the main sufferer – that this trend creates two classes of patient i.e. rich patients and poor patients.
Lifestyle
How long should we wait for Justice?
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( Wednesday, September 03, 2008 )
This article is related to the problem of unrecognised medical degrees (MD/MS/Diplomas)awarded by the many Government Medical Colleges across India.
Other
Exploitation of Medical Teachers in India
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( Saturday, September 13, 2008 )
This article is about the exploitation of medical teaching faculty by the management of private medical college. Medical Council of India has to introspect about its intention and objectives of the Medical Council of India Act, 1965.
Other
Acute shortage of faculty in Govt. Medical Colleges
( MUKESH YADAV )
( Saturday, September 27, 2008 )
In this article is presenting grim picture of acute shortage of medical faculty in Govt. Medical Colleges in U.P., supposed to be models for Private Medical College.
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Quality of medical education in Delhi on decline
( MUKESH YADAV )
( Monday, October 20, 2008 )
This article is related to the quality of medical education in government medical college of India's Capital i.e. Delhi, exposing the insensitivty of the government authorities.
Lifestyle
Landmark judgment of SC to improve quality of education
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( Tuesday, February 17, 2009 )
Hon'ble Apex Court of India, delivered a landmark judgement on February 13, 2009, related to educational institution falling under the ambit of Consumer Protection Act. These observations will help improve the quality of education in India.
Other
Privatization of medical education showing its ugly face
( MUKESH YADAV )
( Wednesday, April 01, 2009 )
Privatization of medical education in India has started showing its ugly face. This article is an attempt to show the current deplorable scenario in MP, India.

Privatization of medical education showing its ugly face

2009-04-11T21:04:00.000-07:00

Privatization of medical education showing its ugly face

Posted : Wednesday, April 01, 2009 By : MUKESH YADAV
Mushrooming of private medical colleges in India and acute shortage of medical faculty along with huge profit motive on the part of private management leads to ruin quality of medical education in India. Recently Hon’ble M.P. High Court (Jabalpur Bench) came to rescue operation by giving direction to MCI in its order dated December 19TH 2008, in a PIL (Arvind Kumar Mishra Vs. Union of India & Ors. in WP No. 10263/2008).
The Hon’ble HC Observed:
“……..The petitioner has alleged in this writ petition that the private Medical and Dental Colleges in the State of Madhya Pradesh do not have the required faculty members on their permanent rolls. We direct that the Medical Council of India, the respondent No.1 and the Dental Council of India, the respondent No. 3 will carry out the inspection of all the private medical and dental Colleges in the State of Madhya Pradesh and report this Court whether the teaching staff has been permanently employed by the private Medical and Dental Colleges in the State of Madhya Pradesh, or such teaching staff has only been shown in the rolls of these Colleges for purposes of permission or recognition. Court has given directions for the inspection to be carried out by the MCI and report be submitted by 05.01.2009”.
To verify the teaching faculty, residents and clinical material - Pursuant to order of Hon'ble M.P. High Court MCI conducted Inspection on 2nd January, 2009, of four private medical colleges viz.: People’s College of Medical Sciences & Research, Bhanpur, Bhopal, Index Medical College Hospital & Research Centre, Indore, Sri Aurobindo Institute of Medical Sciences, Indore, Ruxmaniben Deepchand Gardi Medical College, Ujjain.
To the utter surprise for all of us the shortage of teaching faculty was 61.2% (i.e. 79 out of 129) and that of Residents were 65% (i.e. 49 out of 76) at Index Medical College Hospital & Research Centre, Indore.
Clinical material was grossly inadequate as reported by the MCI inspectors. On the day of Inspection: O.P.D. attendance was 129 in place of average 800 per day and Bed occupancy was 26.7% as against 80% as per MCI norms Minimum Requirements.
Other interesting observations of MCI Inspectors were:
On actual verification and as per ward census, bed occupancy was found to be 26.7% on the day of inspection.
There were no patients in casualty, Paediatrics ICU & NICU on the day of inspection.
There was no delivery/LSCS on the day of inspection.
The admission/discharge registers were found to be incomplete.
There were no entries in Surgery admission register after 29.12.2008, in Ortho register after 30.12.08, in Peadiatrics register after 2.1.09 and the Medicine registers were not available.
In most of the wards, approximately 50% of the admissions were done on the day of inspection.
In all major departments, patients who were admitted did not warrant hospitalization.
In most of the case sheets, there were no OPD slips, no IPD registration number and history sheets were not written. Only treatment notes were found to be written.
Fake faculty:
It was found that the 4 doctors presented as Tutors in Pharmacology were not doctors. However, they signed the declaration certificate that they were working full time in Index hospital. On questioning, they also certified that they are not doctors. However, the Dean did not submit the declaration forms and refused to countersign on the aforesaid declaration certificate. It was signed by the other two Inspectors who were also present at the time of head count. Their names are: Mr. Jeetendra Tiwari, Mr.Pradeep Solanki, Mr.Om Prakash Prajapati, Mr.Sandeep Thakur.
Dr.Kolpe Dayanand Vasant Rao, had presented himself as Asstt. Prof., Forensic Medicine. However, on questioning, he failed to give satisfactory reply pertaining to his qualifications. On further questioning, he admitted that he is not a doctor who had signed the declaration form and was countersigned by the Dean and three Inspectors. Thus he has submitted a false declaration form with relevant enclosures which is countersigned by the Dean.
Recently, The Tribune, a leading news paper from Punjab in its editorial dated March 7, 2009 has reported “the shocking revelation that some Punjab government doctors have been engaging in scandalous moonlighting in private medical institutes deserves severe condemnation. A Tribune investigation lists half-a-dozen government doctors simultaneously figuring on the rolls of private medical colleges in southern India which they have been visiting for monetary benefit during mandatory head count inspections by the Medical Council of India, an apex body entrusted with maintaining uniform standards of medical education in the country”.
The Editorial further added that “the figure of six doctors is more likely to be suggestive of many more doctors engaged in a similar exercise from just not only Punjab but perhaps from other states as well. This corruption by manipulation and moonlighting is the latest by government doctors, many of whom are since long known to engage in unethical activities of private practice and of taking commissions from private diagnostic laboratories and private clinics for referrals”.
Regarding the stand of MCI it mentioned that “Even more strange is the display of indifference by the MCI, which has ruled out any action saying that they accept at face value a written list of doctors submitted by the medical colleges who are privy to the racket. The MCI seems to overlook the fact that only last year they had threatened to de-recognise the three government medical colleges in Punjab partly because of similar manipulation of manpower after 23 faculty members from Amritsar and Fardikot were detected of being posted to the Government Rajindra Hospital in Patiala on the date of inspection and then reverted to their parent institutions when they faced similar inspection a month later”.
If timely actions by all concerned authorities including common man and parents of students studying in these medical colleges are not taken right to quality of heath care in India may be a distant dream for all of us. Many cases related to infrastructural deficiencies are pending in the various high courts of the country and even in the Apex Court of India, waiting for their fate of fighting for a right cause till date.
We have only hope from the higher judiciary, to come forward for these public sprit health rights activist to protect most cherished fundamental right i.e. Right to life and quality of health care. Media one of the important pillars of democracy can also play its much awaited leading role in exposing these illegal and unethical practices on the part of doctors and private management.

Unrecognized Medical Degree / Diploma; Employment, Promotion

2009-04-11T21:01:00.000-07:00

Unrecognized Medical Degree / Diploma; Employment, Promotion
A Review of Indian Court’s Judgments
Dr. Mukesh Yadav, B. Sc., M.B.B.S., M.D., LL.B., PGDHR
Prof. & HOD, Forensic Medicine
Muzaffarnagar Medical College, Muzaffarnagar, U.P.
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, Court.
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 is a developing economy many problems are bound to arise. This problem is prevailing in many States of India like Jammu & Kashmir, Himanchal Pradesh, Punjab, Haryana, U.P., Bihar, Tamil Nadu, Delhi etc.
Author himself had received an interview call from the PGIMER, Chandigarh, for the post of Assistant Professor scheduled to be held on 06-12-2005, and concerned authority has asked for certificate from MCI in this regard as a condition to appear before the interview board. Similar is the position with the Union Public Service Commission (UPSC), New Delhi, which asks for letter of recognition of degree issued by the MCI before they allow appearing for the interview.
In a very interesting case in which a doctor holder of M.D. (Pathology) awarded by M.L.B. Medical College, which is not recognized by the MCI. He was given appointment as Senior Lecturer at 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. But unfortunately his candidature was rejected by the UPSC, after allowing him to appear for the interview.
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, Rohtak. In this behalf, it is pointed out, that the qualification of M.D. (Forensic Medicine) awarded by the Maharishi Dayanand University, Rohtak, has not been recognized by the Medical Council of India. It is, therefore, asserted that the petitioner does not even fulfil the basic qualifications for the post of Dean (Medical). [Page No. 21-23]
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 as far back as on 1-06-1981. at the aforesaid juncture, the qualification possessed by the petitioner, was considered to be sufficient for appointment to the post of Professor. It is not open to the respondent at this juncture to assert, that the same postgraduate qualification, which was accepted to determine the eligibility of the petitioner for appointment to the post of Professor, is not acceptable for determining his eligibility for promotion to the post of Dean (Medical). Secondly, while Appendix ‘B’ of the 1988 Rules expressly indicates, that the basic University qualification possessed by an incumbent must be one of the qualifications included in the schedule to the Indian Medical Council Act, 1956, there is no such prescription / requirement in so far as the M.D. / M.S. qualification is concerned. It is, therefore, misconceived for the respondents to assert, that only such M.D. / M.S. qualifications are to be considered as valid for the purposes of eligibility as have been recognized by the Medical Council of India. Thirdly, the petitioner acquired the qualification of M.D. (Forensic Medicine) from the Medical College, Rohtak i.e. the very institute, wherein he is claiming appointment by promotion to the post of Dean (Medical). It is difficult to accept, that the respondent would not accept the postgraduate qualification acquired from the institute itself, as a valid postgraduate qualification for appointment to the post of Dean (Medical). In fact, it would be pertinent to mention, that the official respondents in the instant writ petition did not dispute the eligibility of the petitioner for appointment by promotion to the post of Dean (Medical). The instant objection was raised only at the hands of respondent No. 3. In view of the deliberations recorded above, it is not possible for us to accept even the fourth contention (advanced by the learned counsel representing respondent No. 3) [Page No. 23]
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 for purposes of recruitment to services under the State Government.
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, Medical & Public Health Department in accordance with the Rules. [Para 5]
The appellant had, by then, obtained the M.D. degree in Forensic Medicine from the University of Bihar, Muzaffarpur in1970 and had been functioning as Lecturer in Forensic Medicine in one of the Government Medical Colleges in Rajasthan on a temporary and adhoc basis from December 31, 1970 onwards. [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, which is a qualification entered in the First Schedule to the Indian Medical Council Act. It is also not in dispute that he is duly registered under the Medical Registration Act. The sole ground on which the appellant was treated by the Commission as ineligible for consideration was that the post-graduate degree in Forensic Medicine possessed by the appellant is not one awarded by the University of Rajasthan and the said degree has also not been recognized by the University of Rajasthan as an equivalent qualification. [Para 10]
The University of Bihar at Muzzafarpur is one duly established by statute and is fully competent to conduct examinations and award degrees. The degree of Doctor of Medicine (Forensic Medicine) M.D. (Forensic Medicine) of The University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognized by the Indian Medical Council which is the parmount professional body set up by statute with authority to recognize the medical qualifications granted by any University or Medical Institution in India. [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 accepted this position. We are not concerned in this case about the value of such degree for places outside State of Bihar, but so far the present case is concerned which relates to the post of Assistant Professor in Patna Medical College and Hospital, Patna which post is under the Bihar Government, no such objection can be maintained by the Resondent No. 5. [R-8]
“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, Arts. 226, 254 – Education – Admission – Medical College – Admission Capacity – Fixation – can be done only by Medical Council – State Government and Universities cannot increase admission capacity.
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. The main substance of the writ petition is that the Post Graduate courses of the said Medical College have been substantially de-recognized by the Medical Council of India but this fact notwithstanding, admissions are going on in these Colleges and the Post Graduate Medical Courses even now. We are informed from the Bar that counseling is on from this day, i.e. today with regard to such Post Graduate Medical Courses.
Some other Colleges are also named in the petition like Maharani Laxmi Bai Medical College, Jhansi and S.N. Medical College Agra. As for as we have been able to gather today, these colleges are not legal personalities and are not Bodies Corporate, these are basically State instrumentalities. The State also appears to have issued directives to at least the B.R.D. medical College, Gorakhpur, not to admit students and not to recognize students to Post Graduate Courses.
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. Whether an institution is fit to admit students for the purpose of study ultimately with the aim of receiving medical degrees from that institution, is a matter, which is in the sole decision of Medical Council. If the Medical Council de-recognizes institutions, courses or seats, then and in that event it means that those institutions, those courses or those seats, as the case might be, are not fit for producing qualified doctors of that level or that mentality, specialty.
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 concerned by impleading those through their Principal; the present incumbent in office to be served in that regard but the impleading to be made by the office itself.
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 & Others, Civil Writ Petition No. 8561 of 2003; Date of Decision 09-02-2005 (P & H).
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 and Others, AIR 1998 Supreme Court 2423. Civil Appeal Nos. 3275 with 3576-77 of 1998 (arising out of S.L.P. ( C) Nos. 14839 of 1997 with 20035 of 1997 and 547 of 1998), D/-16-07-1998. W.A. No. 8413 of 1996, dated 16-07-1997 (Kant.) GP/GP/S100261/98/VVG/CSL.
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 & Others, A.I.R. 1991 S.C. 1514; J.T. (1991) 2 S.C. 352.
R-9-Dr. Harish Bajaj v. R.D.V. Vidyalaya, Jabalpur, AIR 2003 MP 114.

Problem of Unrecognized Medical Degrees awarded by the Government Medical Colleges:

2009-04-11T20:57:00.000-07:00

Problem of Unrecognized Medical Degrees awarded by the Government Medical Colleges:
A Critical Case review from State of Madhya Pradesh, India
Dr. Mukesh Yadav, B.Sc., M.B.B.S., M.D., LL.B., PGDHR
Prof. & HOD, Forensic Medicine & Toxicology
Muzaffarnagar Medical College, Muzaffarnagar, U.P.
Abstract
Problem of recognition of medical degrees / diplomas awarded by the Government Medical Colleges is still persisting through out the India and drawing the attention not only of the Hon’ble Apex Court of India but also of the various High Courts. The present case report deals with the problem of the Government Medical Colleges of Madhya Pradesh. Dr. S.K. Neema, who completed his M.S. (Orthopedics) from G.R. Medical College, Gwalior, which is not recognised by the Medical Council of India, whose appointment for the post of Assistant Professor, Orthopedics was challenged by Dr. Omprakash Lakhwani on the ground that the course i.e. M.S. (Orthopedics) is not recognised by the Medical Council of India in G.R. Medical College, Gwalior from where Dr. S.K. Neema has obtained M.S.(Orthopedics) degree, hence, he is not eligible for appointment to the said post.
Hon’ble High Court has gone into the depth of the problem, their consequential effects on the medical student’s community, role of the various authorities, and directions to solve the problem. [Para 9] [1]
This paper deals with critical review of the problem based on recent six pages judgment delivered by the Justice, Subhash Samvatsar, at Jabalpur Bench, Gwalior, High Court of Judicature of Madhya Pradesh on May 13, 2008, in Writ Petition No. 2943 of 2004 in case of Dr. Omprakash Lakhwani v. State of Madhya Pradesh and Others.
Key Words: Recognition of Degree, High Court, Apex Court, Supreme Court, State Medical Council, University, State Government of M.P.
Brief facts of the case:
That said course M.S. (Ortho) is being run by G.R. Medical College, Gwalior for more than 25 years and the students who clear the said examination are being appointed by the State Government. [Para 6] [1]
Various government authorities like: the State of Madhya Pradesh, Medical Council of India, Madhya Pradesh Medical Council and G.R. Medical College, Gwalior have admitted that the course of MS (Orthopedics) is run in G.R. Medical College, Gwalior for large number of years. It was also contended that for recognition of the said course, the Medical Council of India had conducted inspections of the College whereby the Medical Council of India had recommended for recognition of the course of MS (Orthopedics) in G.R. Medical College, Gwalior. But till today, no recognition is granted by the Medical Council of India. [Para 10] [1]
However, the question before the Hon’ble High Court was what is its effect? Hon’ble High Court has gone into the depth of the problem, their consequential effects on the medical student’s community, role of the various authorities, and directions to solve the problem. [Para 9] [1]
This writ petition is filed by the petitioner (Dr. Omprakash Lakhwani) challenging the contractual appointment of respondent No.6 (Dr. S.K. Neema) to the post of Assistant Professor in the Department of Orthopedics in G.R. Medical College, Gwalior on the ground that his appointment is contrary to the rules framed by the Medical Council of India. [Para 1] [1]
Dr. Omprakash Lakhwani had obtained his MBBS degree from Jiwaji University, Gwalior in the year 1994. He had successfully completed three years post graduate course in Orthopedics from M.G.M. College, Indore in the year 2003. After completing his MS course in the year 2003, he applied for the post of Assistant Professor on contractual basis in pursuance of an advertisement issued by the Directorate of Medical Education, Madhya Pradesh. This advertisement was issued on July 22, 2004 inviting applications for various posts. Dr. Omprakash Lakhwani as well as Dr. S.K. Neema applied for the said post. After facing selection process, the selection committee found Dr. S.K. Neema to be more meritorious and appointed him as Assistant Professor in G.R. Medical College at Gwalior.
Although Dr. Omprakash Lakhwani was also selected in the said selection, but he was placed lower in merit than Dr. S.K. Neema hence he was posted at Rewa Medical College. [Para 2] [1]
Contention of the learned counsel for Dr. Omprakash Lakhwani is that the course i.e. M.S. (Orthopedics) is not recognised by the Medical Council of India in G.R. Medical College, Gwalior from where Dr. S.K. Neema has obtained M.S.(Orthopedics) degree, hence, he is not eligible for appointment to the said post. [Para 3] [1]
Counsel for Dr. Omprakash Lakhwani has invited attention of the Hon’ble High Court to clause 6 of the advertisement according to which, it is necessary that a candidate must have a degree in the subject from the institution recognised by Medical Council of India. Thus, according to the advertisement, it is necessary that the candidate must have got a degree from the institution where the course is recognised by Medical Council of India. [Para 4] [1]
Counsel for Dr. Omprakash Lakhwani also invited attention of the Hon’ble High Court to the document which is a list issued by Madhya Pradesh Medical Council, Bhopal of various courses in various colleges in the State of Madhya Pradesh which are not recognised. As per the list, M.S. (Orth.) is not recognised in G.R. Medical College, Gwalior. Learned counsel has also invited attention of this Court to the schedule appended to the Indian Medical Council Act, 1956 to demonstrate that the subject of Orthopedics is not recognised in G.R. Medical College, Gwalior. [Para 8] [1]
Said course, is however, recognised in M.G.M. Medical College, Indore from where Dr. Omprakash Lakhwani obtained his degree in MS (Orthopedics). Thus, as per, Dr. Omprakash Lakhwani, Dr. S.K. Neema is not eligible to be appointed as Assistant Professor. [Para 5] [1]
After perusal of records it is virtually an admitted position that MS (Orthopedics) is not recognised in G.R. Medical College, Gwalior, still Dr. S.K. Neema is appointed against the post of Assistant Professor in the Department of Orthopedics. Parties, at the time of arguments, have admitted that said course is being run by G.R. Medical College, Gwalior for more than 25 years and the students who clear the said examination are being appointed by the State Government.
It was further contended by Shri R.D.Jain, learned Senior Advocate appearing on behalf of Dr. Omprakash Lakhwani that the illegality which is committed by the Authorities for long years cannot be permitted to be perpetuated. Hence, appointment of Dr. S.K. Neema be cancelled. [Para 7] [1]
Hon’ble High Court observed that there is no dispute to the fact, in the present case, that the course of MS (Orthopedics) is not recognised in G.R. Medical College, Gwalior. What is the effect of running courses and awarding unrecognized medical degrees / diplomas by the Government Medical Colleges?
Learned counsel appearing for the State of Madhya Pradesh, Medical Council of India, Madhya Pradesh Medical Council and G.R. Medical College, Gwalior have admitted that the course of MS (Orthopedics) is run in G.R. Medical College, Gwalior for large number of years. It is also contended that for recognition of the said course, the Medical Council of India had conducted inspections of the College whereby the Medical Council of India had recommended for recognition of the course of MS (Orthopedics) in G.R. Medical College, Gwalior. But till today, no recognition is granted by the Medical Council of India. [Para 10] [1]
Insensitivity of the Government:
Mayhem and chaos ruled the day in Government Hospitals of Madhya Pradesh as Junior Doctors went on strike following the Medical Council of India’s recommendations to derecognize 154 medical Post Graduate seats in the State. On Monday Junior Doctors of Bhopal, Jabalpur, Gwalior and Rewa went on strike. Junior Doctors in Indore are joined the strike on Tuesday. Patients queued up out side of the emergency ward of Government Hospitals while nurses assumed charge and major operations were postponed. The Government remained silent while patient waited for hours hoping for doctor to attend to them. [5]
Last year (2007) the MCI inspected Medical Colleges in MP and found the Institutions unsuitable to churn out quality doctors. Since 1996 MCI has been repeatedly observing that the basic infrastructure of Medical Colleges in the State did not match standard set by the Council. In March this year (2007), MCI recommended that 154 Post Graduate seats be derecognized. MP has five Government Medical Colleges. The MCI also asked the Centre to direct the colleges not admit fresher for 2007-2008 academic session, unless the State Government introduced the necessary infrastructural changes. Junior Doctors claim that doctors seeking jobs outside MP were facing discrimination as the validity of their degrees was being questioned. [5]
In fact, if State Government did make adequate changes in the existing Medical Colleges as per standard prescribed by MCI, their degree were valueless. “If the Medical Colleges are derecognized, then we are ‘fargy’ (fraud) doctors. It will not be right for fraud doctors to treat patients,” –Junior Doctor’s Association, President, Jeevan Singh Meena, argued. [5]
“We are not the ones to be blamed,” -Meena justified. “We had informed the Government 48 hours in advance. For the last nine years, the Government has been inactive. The State has not assured us that it will bring the Medical Colleges to the standard set by the MCI. If our degrees are not recognised who will give us job? Even this Government not employs us any longer.” [5]
On its part, State Medical Education Department has argued that the strike is unjustified because neither the MCI nor the Union Government has informed MP Government about derecognition. Principal Secretary, Medical Education, M. M. Upadhyay told reporters “we have spoken to the Union Government on this and have been assured to that as per rules the State Government will be consulted before the Centre takes any action on the MCI recommendations.” [5]
The department claimed that after the MCI’s recommendation in March, 2007 the State has recruited Assistant Professors in the faculties, considering construction of buildings and purchasing medical equipments and instruments. A budget of 73.73 crore has been allotted for the up gradation of Medical Colleges. [5]
Hon’ble High Court’s important observations:
In the present case, an advertisement was issued by the State for contractual appointment to the post of Assistant Professor and both – Dr. Omprakash Lakhwani and Dr. S.K. Neema– had applied. There is no dispute that the essential qualification for appointment to the post of Assistant Professor is having MS degree from an institution in the course recognised by the Medical Council of India. [Para 11] [1]
Hon’ble High Court after having heard learned counsel for the parties and observed that “I find that the Apex Court in the case of Dr.Arun Kumar Agrawal vs. the State of Bihar, AIR 1991 SC 1514 [4] has considered the similar situation. In that case also, Patna Medical College and Hospital, Patna had issued advertisement and selection committed had made appointments after considering the merits of the candidates.
It was argued that the candidate who is selected did not fulfill criterion of passing post graduate degree from an institution where the said course was recognised and the Apex Court has held that whether the post graduate course is started by the University with the consent of Medical Council of India and where the State has recognised the said degree imparted by the University, plea raised that the candidate has obtained decree in such course which was not recognised in the institution has no value and dismissed the petition”. [Para 14] [1]
Hon’ble Court further observed that the Contention of Shri R.D. Jain, learned Senior Advocate for Dr. Omprakash Lakhwani is that, in that case, there was consent by the State Government and the Medical Council of India which is not present in the present case. Hence, the facts of the aforesaid case are quite distinguishable. [Para 15] [1]
On the question of Consent of the State Government and Medical Council of India:
Hon’ble High Court observed that in the present case, I find that Dr. S.K. Neema was a candidate from All India Quotas. He was allotted a seat in MS (Orthopedics) by Director of Medical Education on the basis of his merits. At the time of allotment of seat, the Director of Medical Education must have knowledge that said course is not recognized by Medical Council of India. Thus, the State Government had consented to the admission of Dr. S.K. Neema in G.R. Medical College, Gwalior. [Para 16] [1]
Hon’ble Court further added that apart from that, at the time of admission of Dr. S.K. Neema, the State Authorities were fully conscious of the fact that said course was not recognised and still Dr. S.K. Neema was appointed by the State. This clearly shows that there was implied consent by the State Government, firstly at the time of admission and secondly at the time of appointment in service. Now it cannot be said that the State Government had not consented to this fact. [Para 17, Page No.5] [1]
It is an admitted position that the course of MS (Orthopedics) is run for the last more than 25 years in G.R. Medical College and candidates who have cleared the said post graduate courses are being appointed by the State Government from time to time. Thus, in the present case, objection about not having consent of the State Government cannot be maintained. [Para 17] [1]
Comments about role of Madhya Pradesh Medical Council:
Hon’ble High Court made comments about the role of M.P. State Medical Council in the words that so far as Madhya Pradesh Medical Council is concerned, it cannot be presumed that they are not aware of this illegality. It is true that illegality cannot be permitted to be perpetuated, all the same, it is the Respondents Authorities which are indulging in continuing such illegality and the innocent students who come from outside the State and getting admission are made to suffer without any fault on their part. [Para 18] [1]
Hon’ble High Court concluded that considering this aspect of the matter, I find that the judgment of the Apex Court in the case of Dr.Arun Kumar Agrawal [4] is fully applicable in the present case and there is no illegality in the appointment of Dr. S.K Neema. At the most, it can be said that there is some irregularity in his appointment for which Dr. S.K Neema cannot be held to be responsible. [Para 19] [1]
Perusal of Schedules to the Indian Medical Council Act, 1956 clearly indicates that the medical qualifications which are recognized by the Universities and Medical Institutions in India have been mentioned. According to the First Schedule qualification Doctor of Medicine in Pathology in abbreviation from M.D. (Path.) has been recognized in the Rani Durgavati Vishwa Vidhyalya, Jabalpur. Thus, it was incumbent upon the respondent No. 1 University to have awarded only that degree which is recognized one and to amend the degree from that of M.D. (Pathology and Microbiology) to M.D. (Pathology) as this is the only change in nomenclature of the degree. For the fault of University, the students cannot be made to suffer. Since they have acquired qualifications, degrees 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). The petitioner and such other similar students are being deprived of their right to education and other fundamental rights enshrined under Articles 14, and 21 of the Constitution of India which make it clear that the petitioner and such other students cannot be dealt with in such an arbitrary manner. [Para 8] [6]
The respondents are bound to act within the purview of Medical Council Act, 1956. I find no rhyme or reason in the explanation offered by the Rani Durgavati Vishwa Vidyalya in not amending nomenclature of the degree of M.D. (Pathology and Microbiology). If the degree is not amended, it may be detrimental to the students who have passed out the examination by making hard efforts to obtaining the degree and their qualification would go in waste. In such circumstances, the decision was taken by Devi Ahilya Vishwa Vidyalya, Indore and by notification Annexure A-8; the said University has recalled its order and amended the degree. Therefore, same action ought to have been taken by the respondent No. 1 University to amend the degree of the students who have been taken by the University to amend the degree of the student who have passed prior to 1997 when it has decided to amend it prospectively. Though the University realized the situation and its mistake and they have passed the resolutions in this respect in 1997 the student of 1990 to 1996 are being still awarded by the degree with nomenclature on the basis of same course as M.D. (Pathology and Microbiology). The action taken is discriminatory. Right to Education is a fundamental right. Under Article 21 of the Constitution of India no one can be deprived of fruits of his hard labour in pursuit of degree in question by prescribing a wrong nomenclature. Medical Council had indicated it’s willing to treat degree as one in M.D. in Pathology as same course which should have been enough for University to amend it and act like Devi Ahilya University, India. [Para 8] [6]
Summary and Conclusions:
It is not disputed that there are number of courses which are not recognised by the Medical Council of India. Students are admitted to such courses as per the allotment made by the Director of Medical Education in spite of the fact that the Director of Medical Education is fully aware of the fact that said courses are not recognised by the Medical Council of India. Medical Council of India and the Madhya Pradesh Medical Council are also watching this illegality for number of years as silent spectators and thus, all these Authorities are playing with the career of the students which cannot be permitted to be done. If the Medical Council of India and Madhya Pradesh Medical Council permitted to watch the game as silent spectators and continue the illegality in admissions, then the very purpose of establishing these Authorities will be frustrated. In such a situation, it is for the aforesaid Authorities to see that in future, no candidate is allotted seat in post graduate degree course in the Institutions which are not recognised. Therefore, they are directed not to admit any student in future against any course which is not recognised by the Medical Council of India in a particular Institution. [Para 20, Page No.5, 6] [1]
In the result, Hon’ble High Court dismissed the said petition with the directions issued to be followed in future. [Para 21, Page No. 6] [1]
Reference:
Dr. Omprakash Lakhwani v. State of Madhya Pradesh and others, Writ Petition No.2943 of 2004, High Court of Judicature of Madhya Pradesh: Jabalpur Bench at Gwalior, Date of disposal: May 13, 2008.
The Indian Medical Council Act, 1956, Schedules.
The Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998.
Dr.Arun Kumar Agrawal vs. the State of Bihar, AIR 1991 SC 1514.
‘Jr doctors stop work in MP’, The Times of India, December 15, 2007.
Dr. Harish Bajaj v. Rani Durgavati Vishwa Vidyalaya, Jabalpur and Others, AIR 2003 Madhya Pradesh 114-117, Writ Petition No. 30 of 2002, dated 10-05-2002.
Dr. B.L. Asawa v. State of Rajasthan and Others, Rajasthan High Court in D.B. Civil Appeal No. 247 of 1974), decided on March 5, 1982.
Om Prakash and Others v. State of U.P. and Others, Writ Petition No. 1563 (M/B) of 2005, Order dated April 22, 2005 of Lucknow Bench, Allahabad High Court.
Dr. Mukesh Yadav & Others v. Union of India & Others, Writ No.124 of 2008, Supreme Court of India.
Dr. Ms. Swapnil Sandhya & Others v. Union of India & Others, W.P. (Civil) 3065/2002, Disposed on March 12, 2008 in the High Court of Delhi at New Delhi.
Medical Council of India v. State of Karnataka and Others, AIR 1998 SC 2423.

Problem of unrecognised Degrees: A Case Report

2008-07-25T06:25:00.000-07:00

Problem of Unrecognized Medical Degrees awarded by the Government Medical Colleges:
A Critical Case review from State of Madhya Pradesh, India
Dr. Mukesh Yadav, B.Sc., M.B.B.S., M.D., LL.B., PGDHR
Prof. & HOD, Forensic Medicine & Toxicology
Muzaffarnagar Medical College, Muzaffarnagar, U.P.
Abstract
Problem of recognition of medical degrees / diplomas awarded by the Government Medical Colleges is still persisting through out the India and drawing the attention not only of the Hon’ble Apex Court of India but also of the various High Courts. The present case report deals with the problem of the Government Medical Colleges of Madhya Pradesh. Dr. S.K. Neema, who completed his M.S. (Orthopedics) from G.R. Medical College, Gwalior, which is not recognised by the Medical Council of India, whose appointment for the post of Assistant Professor, Orthopedics was challenged by Dr. Omprakash Lakhwani on the ground that the course i.e. M.S. (Orthopedics) is not recognised by the Medical Council of India in G.R. Medical College, Gwalior from where Dr. S.K. Neema has obtained M.S.(Orthopedics) degree, hence, he is not eligible for appointment to the said post.
Hon’ble High Court has gone into the depth of the problem, their consequential effects on the medical student’s community, role of the various authorities, and directions to solve the problem. [Para 9] [1]
This paper deals with critical review of the problem based on recent six pages judgment delivered by the Justice, Subhash Samvatsar, at Jabalpur Bench, Gwalior, High Court of Judicature of Madhya Pradesh on May 13, 2008, in Writ Petition No. 2943 of 2004 in case of Dr. Omprakash Lakhwani v. State of Madhya Pradesh and Others.
Key Words: Recognition of Degree, High Court, Apex Court, Supreme Court, State Medical Council, University, State Government of M.P.
Brief facts of the case:
That said course M.S. (Ortho) is being run by G.R. Medical College, Gwalior for more than 25 years and the students who clear the said examination are being appointed by the State Government. [Para 6] [1]
Various government authorities like: the State of Madhya Pradesh, Medical Council of India, Madhya Pradesh Medical Council and G.R. Medical College, Gwalior have admitted that the course of MS (Orthopedics) is run in G.R. Medical College, Gwalior for large number of years. It was also contended that for recognition of the said course, the Medical Council of India had conducted inspections of the College whereby the Medical Council of India had recommended for recognition of the course of MS (Orthopedics) in G.R. Medical College, Gwalior. But till today, no recognition is granted by the Medical Council of India. [Para 10] [1]
However, the question before the Hon’ble High Court was what is its effect? Hon’ble High Court has gone into the depth of the problem, their consequential effects on the medical student’s community, role of the various authorities, and directions to solve the problem. [Para 9] [1]
This writ petition is filed by the petitioner (Dr. Omprakash Lakhwani) challenging the contractual appointment of respondent No.6 (Dr. S.K. Neema) to the post of Assistant Professor in the Department of Orthopedics in G.R. Medical College, Gwalior on the ground that his appointment is contrary to the rules framed by the Medical Council of India. [Para 1] [1]
Dr. Omprakash Lakhwani had obtained his MBBS degree from Jiwaji University, Gwalior in the year 1994. He had successfully completed three years post graduate course in Orthopedics from M.G.M. College, Indore in the year 2003. After completing his MS course in the year 2003, he applied for the post of Assistant Professor on contractual basis in pursuance of an advertisement issued by the Directorate of Medical Education, Madhya Pradesh. This advertisement was issued on July 22, 2004 inviting applications for various posts. Dr. Omprakash Lakhwani as well as Dr. S.K. Neema applied for the said post. After facing selection process, the selection committee found Dr. S.K. Neema to be more meritorious and appointed him as Assistant Professor in G.R. Medical College at Gwalior.
Although Dr. Omprakash Lakhwani was also selected in the said selection, but he was placed lower in merit than Dr. S.K. Neema hence he was posted at Rewa Medical College. [Para 2] [1]
Contention of the learned counsel for Dr. Omprakash Lakhwani is that the course i.e. M.S. (Orthopedics) is not recognised by the Medical Council of India in G.R. Medical College, Gwalior from where Dr. S.K. Neema has obtained M.S.(Orthopedics) degree, hence, he is not eligible for appointment to the said post. [Para 3] [1]
Counsel for Dr. Omprakash Lakhwani has invited attention of the Hon’ble High Court to clause 6 of the advertisement according to which, it is necessary that a candidate must have a degree in the subject from the institution recognised by Medical Council of India. Thus, according to the advertisement, it is necessary that the candidate must have got a degree from the institution where the course is recognised by Medical Council of India. [Para 4] [1]
Counsel for Dr. Omprakash Lakhwani also invited attention of the Hon’ble High Court to the document which is a list issued by Madhya Pradesh Medical Council, Bhopal of various courses in various colleges in the State of Madhya Pradesh which are not recognised. As per the list, M.S. (Orth.) is not recognised in G.R. Medical College, Gwalior. Learned counsel has also invited attention of this Court to the schedule appended to the Indian Medical Council Act, 1956 to demonstrate that the subject of Orthopedics is not recognised in G.R. Medical College, Gwalior. [Para 8] [1]
Said course, is however, recognised in M.G.M. Medical College, Indore from where Dr. Omprakash Lakhwani obtained his degree in MS (Orthopedics). Thus, as per, Dr. Omprakash Lakhwani, Dr. S.K. Neema is not eligible to be appointed as Assistant Professor. [Para 5] [1]
After perusal of records it is virtually an admitted position that MS (Orthopedics) is not recognised in G.R. Medical College, Gwalior, still Dr. S.K. Neema is appointed against the post of Assistant Professor in the Department of Orthopedics. Parties, at the time of arguments, have admitted that said course is being run by G.R. Medical College, Gwalior for more than 25 years and the students who clear the said examination are being appointed by the State Government.
It was further contended by Shri R.D.Jain, learned Senior Advocate appearing on behalf of Dr. Omprakash Lakhwani that the illegality which is committed by the Authorities for long years cannot be permitted to be perpetuated. Hence, appointment of Dr. S.K. Neema be cancelled. [Para 7] [1]
Hon’ble High Court observed that there is no dispute to the fact, in the present case, that the course of MS (Orthopedics) is not recognised in G.R. Medical College, Gwalior. What is the effect of running courses and awarding unrecognized medical degrees / diplomas by the Government Medical Colleges?
Learned counsel appearing for the State of Madhya Pradesh, Medical Council of India, Madhya Pradesh Medical Council and G.R. Medical College, Gwalior have admitted that the course of MS (Orthopedics) is run in G.R. Medical College, Gwalior for large number of years. It is also contended that for recognition of the said course, the Medical Council of India had conducted inspections of the College whereby the Medical Council of India had recommended for recognition of the course of MS (Orthopedics) in G.R. Medical College, Gwalior. But till today, no recognition is granted by the Medical Council of India. [Para 10] [1]
Insensitivity of the Government:
Mayhem and chaos ruled the day in Government Hospitals of Madhya Pradesh as Junior Doctors went on strike following the Medical Council of India’s recommendations to derecognize 154 medical Post Graduate seats in the State. On Monday Junior Doctors of Bhopal, Jabalpur, Gwalior and Rewa went on strike. Junior Doctors in Indore are joined the strike on Tuesday. Patients queued up out side of the emergency ward of Government Hospitals while nurses assumed charge and major operations were postponed. The Government remained silent while patient waited for hours hoping for doctor to attend to them. [5]
Last year (2007) the MCI inspected Medical Colleges in MP and found the Institutions unsuitable to churn out quality doctors. Since 1996 MCI has been repeatedly observing that the basic infrastructure of Medical Colleges in the State did not match standard set by the Council. In March this year (2007), MCI recommended that 154 Post Graduate seats be derecognized. MP has five Government Medical Colleges. The MCI also asked the Centre to direct the colleges not admit fresher for 2007-2008 academic session, unless the State Government introduced the necessary infrastructural changes. Junior Doctors claim that doctors seeking jobs outside MP were facing discrimination as the validity of their degrees was being questioned. [5]
In fact, if State Government did make adequate changes in the existing Medical Colleges as per standard prescribed by MCI, their degree were valueless. “If the Medical Colleges are derecognized, then we are ‘fargy’ (fraud) doctors. It will not be right for fraud doctors to treat patients,” –Junior Doctor’s Association, President, Jeevan Singh Meena, argued. [5]
“We are not the ones to be blamed,” -Meena justified. “We had informed the Government 48 hours in advance. For the last nine years, the Government has been inactive. The State has not assured us that it will bring the Medical Colleges to the standard set by the MCI. If our degrees are not recognised who will give us job? Even this Government not employs us any longer.” [5]
On its part, State Medical Education Department has argued that the strike is unjustified because neither the MCI nor the Union Government has informed MP Government about derecognition. Principal Secretary, Medical Education, M. M. Upadhyay told reporters “we have spoken to the Union Government on this and have been assured to that as per rules the State Government will be consulted before the Centre takes any action on the MCI recommendations.” [5]
The department claimed that after the MCI’s recommendation in March, 2007 the State has recruited Assistant Professors in the faculties, considering construction of buildings and purchasing medical equipments and instruments. A budget of 73.73 crore has been allotted for the up gradation of Medical Colleges. [5]
Hon’ble High Court’s important observations:
In the present case, an advertisement was issued by the State for contractual appointment to the post of Assistant Professor and both – Dr. Omprakash Lakhwani and Dr. S.K. Neema– had applied. There is no dispute that the essential qualification for appointment to the post of Assistant Professor is having MS degree from an institution in the course recognised by the Medical Council of India. [Para 11] [1]
Hon’ble High Court after having heard learned counsel for the parties and observed that “I find that the Apex Court in the case of Dr.Arun Kumar Agrawal vs. the State of Bihar, AIR 1991 SC 1514 [4] has considered the similar situation. In that case also, Patna Medical College and Hospital, Patna had issued advertisement and selection committed had made appointments after considering the merits of the candidates.
It was argued that the candidate who is selected did not fulfill criterion of passing post graduate degree from an institution where the said course was recognised and the Apex Court has held that whether the post graduate course is started by the University with the consent of Medical Council of India and where the State has recognised the said degree imparted by the University, plea raised that the candidate has obtained decree in such course which was not recognised in the institution has no value and dismissed the petition”. [Para 14] [1]
Hon’ble Court further observed that the Contention of Shri R.D. Jain, learned Senior Advocate for Dr. Omprakash Lakhwani is that, in that case, there was consent by the State Government and the Medical Council of India which is not present in the present case. Hence, the facts of the aforesaid case are quite distinguishable. [Para 15] [1]
On the question of Consent of the State Government and Medical Council of India:
Hon’ble High Court observed that in the present case, I find that Dr. S.K. Neema was a candidate from All India Quotas. He was allotted a seat in MS (Orthopedics) by Director of Medical Education on the basis of his merits. At the time of allotment of seat, the Director of Medical Education must have knowledge that said course is not recognized by Medical Council of India. Thus, the State Government had consented to the admission of Dr. S.K. Neema in G.R. Medical College, Gwalior. [Para 16] [1]
Hon’ble Court further added that apart from that, at the time of admission of Dr. S.K. Neema, the State Authorities were fully conscious of the fact that said course was not recognised and still Dr. S.K. Neema was appointed by the State. This clearly shows that there was implied consent by the State Government, firstly at the time of admission and secondly at the time of appointment in service. Now it cannot be said that the State Government had not consented to this fact. [Para 17, Page No.5] [1]
It is an admitted position that the course of MS (Orthopedics) is run for the last more than 25 years in G.R. Medical College and candidates who have cleared the said post graduate courses are being appointed by the State Government from time to time. Thus, in the present case, objection about not having consent of the State Government cannot be maintained. [Para 17] [1]
Comments about role of Madhya Pradesh Medical Council:
Hon’ble High Court made comments about the role of M.P. State Medical Council in the words that so far as Madhya Pradesh Medical Council is concerned, it cannot be presumed that they are not aware of this illegality. It is true that illegality cannot be permitted to be perpetuated, all the same, it is the Respondents Authorities which are indulging in continuing such illegality and the innocent students who come from outside the State and getting admission are made to suffer without any fault on their part. [Para 18] [1]
Hon’ble High Court concluded that considering this aspect of the matter, I find that the judgment of the Apex Court in the case of Dr.Arun Kumar Agrawal [4] is fully applicable in the present case and there is no illegality in the appointment of Dr. S.K Neema. At the most, it can be said that there is some irregularity in his appointment for which Dr. S.K Neema cannot be held to be responsible. [Para 19] [1]
Perusal of Schedules to the Indian Medical Council Act, 1956 clearly indicates that the medical qualifications which are recognized by the Universities and Medical Institutions in India have been mentioned. According to the First Schedule qualification Doctor of Medicine in Pathology in abbreviation from M.D. (Path.) has been recognized in the Rani Durgavati Vishwa Vidhyalya, Jabalpur. Thus, it was incumbent upon the respondent No. 1 University to have awarded only that degree which is recognized one and to amend the degree from that of M.D. (Pathology and Microbiology) to M.D. (Pathology) as this is the only change in nomenclature of the degree. For the fault of University, the students cannot be made to suffer. Since they have acquired qualifications, degrees 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). The petitioner and such other similar students are being deprived of their right to education and other fundamental rights enshrined under Articles 14, and 21 of the Constitution of India which make it clear that the petitioner and such other students cannot be dealt with in such an arbitrary manner. [Para 8] [6]
The respondents are bound to act within the purview of Medical Council Act, 1956. I find no rhyme or reason in the explanation offered by the Rani Durgavati Vishwa Vidyalya in not amending nomenclature of the degree of M.D. (Pathology and Microbiology). If the degree is not amended, it may be detrimental to the students who have passed out the examination by making hard efforts to obtaining the degree and their qualification would go in waste. In such circumstances, the decision was taken by Devi Ahilya Vishwa Vidyalya, Indore and by notification Annexure A-8; the said University has recalled its order and amended the degree. Therefore, same action ought to have been taken by the respondent No. 1 University to amend the degree of the students who have been taken by the University to amend the degree of the student who have passed prior to 1997 when it has decided to amend it prospectively. Though the University realized the situation and its mistake and they have passed the resolutions in this respect in 1997 the student of 1990 to 1996 are being still awarded by the degree with nomenclature on the basis of same course as M.D. (Pathology and Microbiology). The action taken is discriminatory. Right to Education is a fundamental right. Under Article 21 of the Constitution of India no one can be deprived of fruits of his hard labour in pursuit of degree in question by prescribing a wrong nomenclature. Medical Council had indicated it’s willing to treat degree as one in M.D. in Pathology as same course which should have been enough for University to amend it and act like Devi Ahilya University, India. [Para 8] [6]
Summary and Conclusions:
It is not disputed that there are number of courses which are not recognised by the Medical Council of India. Students are admitted to such courses as per the allotment made by the Director of Medical Education in spite of the fact that the Director of Medical Education is fully aware of the fact that said courses are not recognised by the Medical Council of India. Medical Council of India and the Madhya Pradesh Medical Council are also watching this illegality for number of years as silent spectators and thus, all these Authorities are playing with the career of the students which cannot be permitted to be done. If the Medical Council of India and Madhya Pradesh Medical Council permitted to watch the game as silent spectators and continue the illegality in admissions, then the very purpose of establishing these Authorities will be frustrated. In such a situation, it is for the aforesaid Authorities to see that in future, no candidate is allotted seat in post graduate degree course in the Institutions which are not recognised. Therefore, they are directed not to admit any student in future against any course which is not recognised by the Medical Council of India in a particular Institution. [Para 20, Page No.5, 6] [1]
In the result, Hon’ble High Court dismissed the said petition with the directions issued to be followed in future. [Para 21, Page No. 6] [1]
Reference:
Dr. Omprakash Lakhwani v. State of Madhya Pradesh and others, Writ Petition No.2943 of 2004, High Court of Judicature of Madhya Pradesh: Jabalpur Bench at Gwalior, Date of disposal: May 13, 2008.
The Indian Medical Council Act, 1956, Schedules.
The Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998.
Dr.Arun Kumar Agrawal vs. the State of Bihar, AIR 1991 SC 1514.
‘Jr doctors stop work in MP’, The Times of India, December 15, 2007.
Dr. Harish Bajaj v. Rani Durgavati Vishwa Vidyalaya, Jabalpur and Others, AIR 2003 Madhya Pradesh 114-117, Writ Petition No. 30 of 2002, dated 10-05-2002.
Dr. B.L. Asawa v. State of Rajasthan and Others, Rajasthan High Court in D.B. Civil Appeal No. 247 of 1974), decided on March 5, 1982.
Om Prakash and Others v. State of U.P. and Others, Writ Petition No. 1563 (M/B) of 2005, Order dated April 22, 2005 of Lucknow Bench, Allahabad High Court.
Dr. Mukesh Yadav & Others v. Union of India & Others, Writ No.124 of 2008, Supreme Court of India.
Dr. Ms. Swapnil Sandhya & Others v. Union of India & Others, W.P. (Civil) 3065/2002, Disposed on March 12, 2008 in the High Court of Delhi at New Delhi.
Medical Council of India v. State of Karnataka and Others, AIR 1998 SC 2423.

What do you mean by Education?

2008-07-06T09:10:00.000-07:00

Education meaning and interpretations by the Court
The Apex Court in P.A. Inamdar case [R] in Part V under the heading “A few concepts” observed that “There are a few concepts which should be very clear in our minds at the very outset, as these are the concepts which flow as undercurrents in the sea of issues surfacing for resolution in all educational cases. These concepts are referable to:
(i) What is 'education'?
(ii) What is the inter-relationship of Articles 19(1) (g), 29 and 30 of the Constitution?
(iii) In the context of minority educational institutions, what difference does it make if they are aided or unaided or if they seek recognition or affiliation or do not do so?
(iv) Would it make any difference if the instructions imparted in such educational institutions relate to professional or non-professional courses of study?
Education:
'Education' according to Chambers Dictionary is “bringing up or training; strengthening of the powers of body or mind; culture”.
In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edition, 2005, Vol.2) [1] 'education' is defined in very wide terms. It is stated: “Education is the bringing up; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with 'learning'." [1]
In The Sole Trustee, Lok Shikshana Trust v. C.I.T., (1976) 1 SCC 254 [2], the term 'education' was held to mean: "the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. What education connotes is the process of training and developing the knowledge, skill, mind and character of students by formal schooling”. [2]
In 'India Vision 2020' published by Planning Commission of India, it is stated (at p.250) [3]: "Education is an important input both for the growth of the society as well as for the individual. Properly planned educational input can contribute to increase in the Gross National Products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of the governance. Education opens new horizons for an individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in an individual a critical outlook on social and political realities and sharpens the ability to self-examination, self-monitoring and self-criticism”. [3]
“…Education is more than just reading the science and reading bio-technology or specializing on particular spheres. I think, the primary goal of our education has to be the development of the human being to be a better human being. All our aims, whether they are technological or scientific, must be towards the same end. When we are able to achieve and move towards this target, we shall really see a betterment coming about in India….” –Sh. Rajiv Gandhi’s speech at Ferguson College, Pune, on 01-06-1985.
'Knowledge Society', 'Information Society' and 'Learning Society':
"The term 'Knowledge Society', 'Information Society' and 'Learning Society' have now become familiar expressions in the educational parlance, communicating emerging global trends with far-reaching implications for growth and development of any society. These are not to be seen as mere clichi or fads but words that are pregnant with unimaginable potentialities.
Information revolution, information technologies and knowledge industries, constitute important dimensions of an information society and contribute effectively to the growth of a knowledge society”. (p.246)[3]
Shifting Foundations of Indian Economy:
"Alvin Toffler (1980) has advanced the idea that power at the dawn of civilization resided in the 'muscle'. Power then got associated with money and in 20th century it shifted its focus to 'mind'. Thus, the shift from physical power to wealth power to mind power is an evolution in the shifting foundations of economy. This shift supports the observation of Francis Bacon who said 'knowledge itself is power'; stressing the same point and upholding the supremacy of mind power, in his characteristic expression, Winston Churchill said, "the Empires of the future shall be empires of the mind". Thus, he corroborated Bacon and professed the emergence of the knowledge society”. (ibid, p.247) [3]
Role of Education:
"Education plays a cardinal role in transforming a society into a civilized nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others"- Quadri, J. in his opinion in Pai Foundation (Para 287). [4]
According to Dr. Zakir Hussain, a great statesman with democratic credentials, a secularist and an educationist, a true democracy is one where each and every citizen is involved in the democratic process and this end cannot be achieved unless we remove the prevailing large-scale illiteracy in our country. Unless universal education is achieved which allows every citizen to participate actively in the processes of democracy, we can never claim to be a true democracy. Dr. Zakir Hussain sought to ensure that the seeds of knowledge were germinated in the minds of as many citizens as possible, with a view to enabling them to perform their assigned roles on the stage of democracy. [5] [Dr. Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then Chief Justice of India, (1996) 2 SCC (J) 1, at 2-3.]
Right to Education under Indian Constitution:
Under Article 41 of the Constitution, right to education, amongst others, is obligated to be secured by the State by making effective provision there for.
Fundamental duties recognized by Article 51A include, amongst others, (i) to develop the scientific temper, humanism and the spirit of inquiry and reform; and (ii) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
None can be achieved or ensured except by means of education.
Relation between Preamble Goals in Indian Constitution and education:
It is well accepted by the thinkers, philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out in the Preamble to the Constitution of India are to be achieved, the Indian polity has to be educated and educated with excellence.
Role of education in time of globalization:
Education is a national wealth which must be distributed equally and widely, as far as possible, in the interest of creating an egalitarian society, to enable the country to rise high and face global competition. 'Tireless striving stretching its arms towards perfection' (to borrow the expression from Rabindranath Tagore) would not be successful unless strengthened by education.
Education is "continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain”. [6]
“We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one's own feet." "The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under control and become fruitful is called education”. (Swami Vivekanand as quoted in ibid, at p.20) [6]
Education as ‘Occupation’, ‘service to Society’:
Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to the society. And even though an occupation, it cannot be equated to a trade or a business. In short, education is national wealth essential for the nation's progress and prosperity. [7][P.A. Inamdar case, 2005]
Education as ‘Industry’:
The Supreme Court, while interpreting an industry as defined under Section 2 (j) of the Industrial Dispute Act, 1947 has held that the educational institutions will also come with in the purview of ‘industry’. [S.C. in Bangalore Water Supply and Sewerage Board vs. A. Rajappa, AIR 1978 SC 548: 1978 LIC 467: 36 FLR 266. H.L. Kumar. “Law Relating to Leave Holidays & Absenteeism in Industries” Pg. 197.]

Inter-relationship between Articles 19(1) (g), 29(2) and 30(1):
The right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1) (g). Notwithstanding the fact that the right of a minority to establish and administer an educational institution would be protected by Article 19(1) (g) yet the Founding Fathers of the Constitution felt the need of enacting Article 30. The reasons are too obvious to require elaboration.
Article 30(1) is intended to instill confidence in minorities against any executive or legislative encroachment on their right to establish and administer educational institution of their choice. Article 30(1) though styled as a right, is more in the nature of protection for minorities. But for Article 30, an educational institution, even though based on religion or language, could have been controlled or regulated by law enacted under Clause (6) of Article 19, and so, Article 30 was enacted as a guarantee to the minorities that so far as the religious or linguistic minorities are concerned, educational institutions of their choice will enjoy protection from such legislation.
However, such institutions cannot be discriminated against by the State solely on account of their being minority institutions. The minorities being numerically less qua non-minorities, may not be able to protect their religion or language and such cultural values and their educational institutions will be protected under Article 30, at the stage of law making.
However, merely because Article 30(1) has been enacted, minority educational institutions do not become immune from the operation of regulatory measure because the right to administer does not include the right to mal-administer.
To what extent the State regulation can go, is the issue?
The real purpose sought to be achieved by Article 30 is to give minorities some additional protection. Once aided, the autonomy conferred by the protection of Article 30(1) on the minority educational institution is diluted as provisions of Article 29(2) will be attracted. Certain conditions in the nature of regulations can legitimately accompany the State aid.
Right to impart education is a fundamental right:
As an occupation, right to impart education is a fundamental right under Article 19(1) (g) and, therefore, subject to control by clause (6) of Article 19. This right is available to all citizens without drawing a distinction between minority and non-minority. Such a right is, generally speaking, subject to laws imposing reasonable restrictions in the interest of the general public. In particular, laws may be enacted on the following subjects:
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business;
(ii) The carrying on by the State or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise.
Care is taken of minorities, religious or linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30. To some extent, what may be permissible by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which Article 30(1) grants to the minorities.
'Right to establish and administer' and 'educational institution of their choice':
The employment of expressions 'right to establish and administer' and 'educational institution of their choice' in Article 30(1) gives the right very wide amplitude. Therefore, a minority educational institution has a right to admit students of its own choice, it can, as a matter of its own freewill, admit students of non-minority community. However, non-minority students cannot be forced upon it. The only restriction on the freewill of the minority educational institution admitting students belonging to non-minority community is, as spelt out by Article 30 itself, that the manner and number of such admissions should not be violative of the minority character of the institution.
Aid and affiliation or recognition, both by State, brings in some amount of regulation as a condition of receiving grant or recognition.
Scope of regulations:
The scope of such regulations, as spelt out by 6-Judge Bench decision [8] and 9-Judge Bench case in St. Xavier's [9] must satisfy the following tests:
The regulation is reasonable and rational;
It is regulative of the essential character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it;
It is directed towards maintaining excellence of the education and efficiency of administration so as to prevent it from falling in standards.
National Interest and individual rights:
These tests have met the approval of Pai Foundation.[4] However, Re v. Sidhrajbhai's case [8] and St. Xavier's [9] go on to say that no regulation can be cast in 'the interest of the nation' if it does not serve the interest of the minority as well. This proposition (except when it is read in the light of the opinion of Quadri, J.) stands overruled in Pai Foundation where Kirpal, CJ, speaking for majority has ruled (vide Para 107): "any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf". (Also see, Paras 117 to 123 and Para 138 of Pai Foundation where Kirpal, CJ has dealt with St. Xavier's in details). No right can be absolute. Whether a minority or a non-minority, no community can claim its interest to be above the national interest.
'Minority' and 'Non-Minority Educational Institutions:
'The term 'minority' is not defined in the Constitution. Chief Justice Kirpal, speaking for the majority in Pai Foundation, took clue from the provisions of the State Reorganisation Act and held that in view of India having been divided into different linguistic States, carved out on the basis of the language of the majority of persons of that region, it is the State, and not the whole of India, that shall have to be taken as the unit for determining linguistic minority viz-a-viz Article 30. Inasmuch as Article 30(1) places on par religions and languages, he held that the minority status, whether by reference to language or by reference to religion, shall have to be determined by treating the State as unit. The principle would remain the same whether it is a Central legislation or a State legislation dealing with linguistic or religious minority. Khare, J. (as His Lordship then was), Quadri, J. and Variava & Bhan, JJ. in their separate concurring opinions agreed with Kirpal, CJ. According to Khare, J., take the population of any State as a unit, find out its demography and calculate if the persons speaking a particular language or following a particular religion are less than 50% of the population, then give them the status of linguistic or religious minority. The population of the entire country is irrelevant for the purpose of determining such status. Quadri, J. opined that the word 'minority' literally means 'a non-dominant' group. Ruma Pal, J. defined the word 'minority' to mean 'numerically less'. However, she refused to take the State as a unit for the purpose of determining minority status as, in her opinion, the question of minority status must be determined with reference to the country as a whole. She assigned reasons for the purpose. Needless to say, her opinion is a lone voice. Thus, with the dictum of Pai Foundation, it cannot be doubted that minority, whether linguistic or religious, is determinable only by reference to the demography of a State and not by taking into consideration the population of the country as a whole.
Such definition of minority resolves one issue but gives rise to many a question when it comes to defining 'minority educational institution'. Whether a minority educational institution, though established by a minority, can cater to the needs of that minority only? Can there be an enquiry to identify the person or persons who have really established the institution? Can a minority institution provide cross-border or inter-State educational facilities and yet retain the character of minority educational institution?
In Kerala Education Bill, the scope and ambit of right conferred by Article 30(1) came up for consideration. Article 30(1) does not require that minorities based on religion should establish educational institutions for teaching religion only or that linguistic minority should establish educational institution for teaching its language only. The object underlying Article 30(1) is to see the desire of minorities being fulfilled that their children should be brought up properly and efficiently and acquire eligibility for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering public services, educational institutions imparting higher instructions including general secular education. Thus, the twin objects sought to be achieved by Article 30(1) in the interest of minorities are: (i) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good general education to the children belonging to such minority. So long as the institution retains its minority character by achieving and continuing to achieve the above said two objectives, the institution would remain a minority institution.
The learned Judges in Kerala Education Bill were posed with the issue projected by Article 29(2). What will happen if the institution was receiving aid out of State funds? The apparent conflict was resolved by the Judges employing a beautiful expression. They said, Article 29(2) and 30(1), read together, clearly contemplate a minority institution with a 'sprinkling of outsiders' admitted in it. By admitting a member of non-minority into the minority institution, it does not shed its character and cease to be a minority institution. The learned Judges went on to observe that such 'sprinkling' would enable the distinct language, script and culture of a minority being propagated amongst non-members of a particular minority community and that would indeed better serve the object of conserving the language, religion and culture of that minority.
Chief Justice Hidayatullah, speaking for the Constitution Bench in State of Kerala, Etc. v. Very Rev. Mother Provincial, Etc., (1970) 2 SCC 417, has not used the expression 'sprinkling' but has explained the reason why that was necessary. He said: "It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection". (para 8)
Much of controversy can be avoided if only the nature of the right conferred by Articles 29 and 30 is clearly understood. The nature and content of these articles stands more than clarified and reconciled inter se as also with other articles if only we understand that these two articles are intended to confer protection on minorities rather than a right as such. In St. Stephen's, their Lordships clearly held (vide para 28) that Article 30(1) is "a protective measure only" and further said (vide para 59) that Article 30(1) implied certain 'privilege'. Articles 29 and 30 can be better understood and utilized if read as a protection and/or a privilege of minority rather than an abstract right.
In this background arises the complex question of trans-border operation of Article 30(1). Pai Foundation has clearly ruled in favour of the State (or a province) being the unit for the purpose of deciding minority. By this declaration of law, certain consequences follow. First, every community in India becomes a minority because in one or the other State of the country it will be in minority ___ linguistic or religious. What would happen if a minority belonging to a particular State establishes an educational institution in that State and administers it but for the benefit of members belonging to that minority domiciled in the neighbouring State where that community is in majority? Would it not be a fraud on the Constitution? In St. Stephen's, their Lordships had ruled that Article 31 is a protective measure only for the benefit of religious and linguistic minorities and "no illfit or camouflaged institution should get away with the constitutional protection" (para 28). The question need not detain us for long as it stands answered in no uncertain terms in Pai Foundation. Emphasising the need for preserving its minority character so as to enjoy the privilege of protection under Article 30(1), it is necessary that the objective of establishing the institution was not defeated. "If so, such an institution is under an obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the State in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that State is concerned. In other words, the predominance of linguistic students hailing from the State in which the minority educational institution is established should be present. The management bodies of such institutions cannot resort to the device of admitting the linguistic students of the adjoining State in which they are in a majority, under the fagade of the protection given under Article 30(1)." (para 153). The same principle applies to religious minority. If any other view was to be taken, the very objective of conferring the preferential right of admission by harmoniously constructing Articles 30(1) and 29(2), may be distorted.It necessarily follows from the law laid down in Pai Foundation that to establish a minority institution the institution must primarily cater to the requirements of that minority of that State else its character of minority institution is lost. However, to borrow the words of Chief Justice S.R. Das (in Kerala Education Bill) a 'sprinkling' of that minority from other State on the same footing as a sprinkling of non-minority students, would be permissible and would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit.Minority educational institutions: classifiable in three
To establish an educational institution is a Fundamental Right. Several educational institutions have come up. In Kerala Education Bill, 'minority educational institutions' came to be classified into three categories, namely,
(i) those which do not seek either aid or recognition from the State;
(ii) those which want aid; and
(iii) Those which want only recognition but not aid.
It was held that the first category protected by Article 30(1) can "exercise that right to their hearts' content" unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid.
So is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition.
This Court clarified in Kerala Educational Bill that 'the right to establish and administer educational institutions' conferred by Article 30(1) does not include the right to mal-administer, and that is very obvious. Merely because an educational institution belongs to minority it cannot ask for aid or recognition though running in unhealthy surroundings, without any competent teachers and which does not maintain even a fair standard of teaching or which teaches matters subversive to the welfare of the scholars.
Therefore, the State may prescribe reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognized. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on. The dividing line is that in the name of laying down conditions for aid or recognition the State cannot directly or indirectly defeat the very protection conferred by Article 30(1) on the minority to establish and administer educational institutions. Dealing with the third category of institutions, which seek only recognition but not aid, their Lordships held that 'the right to establish and administer educational institutions of their choice' must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. The dividing line between how far the regulation would remain within the constitutional limits and when the regulations would cross the limits and be vulnerable is fine yet perceptible and has been demonstrated in several judicial pronouncements which can be cited as illustrations. They have been dealt with meticulous precision coupled with brevity by S.B. Sinha, J. in his opinion in Islamic Academy. The considerations for granting recognition to a minority educational institution and casting accompanying regulation would be similar as applicable to a non-minority institution subject to two overriding considerations:
(i) The recognition is not denied solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution of its minority status.
Article 30(1) speaks of 'educational institutions' generally and so does Article 29(2). These Articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of constitutional provisions, the professional educational institutions constitute a class by themselves as distinguished from the educational institutions imparting non-professional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to non-professional education, yet at that level and due to the nature of education which is more general, merit and excellence do not stand in need of that degree thereof, as is called for in the context of professional education.

Difference between professional and non-professional education institutions:
Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on one side and the institutions of higher education, in particular, those imparting professional education on the other side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation. But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof. (See Para 161, Answer to Q.4, in Pai Foundation). The source of this distinction between two types of educational institutions referred to hereinabove is to be found in the principle that right to administer does not include a right to mal-administer.
S.B. Sinha, J. has, in his separate opinion in Islamic Academy, described (in Para 199) the situation as a pyramid like situation and suggested the right of minority to be read along with fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and lesser say for minority.
Educational institutions imparting higher education, i.e. graduate level and above and in particular specialized education such as technical or professional, constitutes a separate class. While embarking upon resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep in view the spirit of the Constitution, as spelt out by its entire scheme.
Education aimed at imparting professional or technical qualifications stand on a different footing from other educational instructions. Apart from other provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51A. Education up to undergraduate level aims at imparting knowledge just to enrich mind and shape the personality of a student.
Graduate level study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant. This is in national interest and strengthening the national wealth, education included. Education up to undergraduate level on one hand and education at graduate and post-graduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after Pai Foundation. A number of legislations occupying the field of education whose constitutional validity has been tested and accepted suggest that while recognition or affiliation may not be a must for education up to undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a must and subject to rigorous scrutiny when it comes to educational institutions awarding degrees, graduate or post-graduate, post-graduate diplomas and degrees in technical or professional disciplines. Some such legislations are found referred in Paras 81 and 82 of S.B. Sinha, J's opinion in Islamic Academy.
Having so stated and clarified these principles which would be germane to answering the four questions posed before us, now we take up each of the four questions seriatim and answer the same.
And yet, before we do so, let us quote and reproduce paragraphs 68, 69 and 70 from Pai Foundation to enable easy reference thereto as the core of controversy touching the four questions which we are dealing with seems to have originated there from.
These paragraphs read as under:
"68. (I) It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods.
(II) For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes.
69. In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers.
70. It is well established all over the world that those who seek professional education must pay for it. The number of seats available in government and government-aided colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges. All those eligible and deserving candidates who could not be accommodated in government colleges would stand deprived of professional education. This void in the field of medical and technical education has been filled by institutions that are established in different places with the aid of donations and the active part taken by public-minded individuals. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the educational authority or the body that conducts the school-leaving examination. It is only on the basis of that examination that a school-leaving certificate is granted, which enables a student to seek admission in further courses of study after school. A college or a professional educational institution has to get recognition from the university concerned, which normally requires certain conditions to be fulfilled before recognition. It has been held that conditions of affiliation or recognition, which pertain to the academic and educational character of the institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition should not be such as may lead to governmental control of the administration of the private educational institutions.
In Islamic Academy the majority has (vide Para 12) paraphrased the contents of Para 68 by dividing it into seven parts. S.B. Sinha, J. has read the same Para 68 by paraphrasing it in five parts (vide Para 172 of his opinion). However, we have reproduced Para 68 by dividing it into two parts. A reading of the majority judgment in Pai Foundation in its entirety supports the conclusion that while the first part of Para 68 is law laid down by the majority, the second part is only by way of illustration, Tantamounting to just a suggestion or observation, as to how the State may devise a possible mechanism so as to take care of poor and backward sections of the society. The second part of Para 68 cannot be read as law laid down by the Bench. It is only an observation in passing or an illustrative situation which may be reached by consent or agreement or persuasion.
References:
P. Ramanatha Aiyar. Advanced Law Lexicon, 3rd Edition, 2005, Vol.2.
The Sole Trustee, Lok Shikshana Trust v. C.I.T., (1976) 1 SCC 254.
'India Vision 2020' published by Planning Commission of India, p. 246, 247, 250.
pai foundation, p. 287.
Dr. Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then Chief Justice of India, (1996) 2 SCC (J) 1, at 2-3.
Eternal Values for a Changing Society, Vol. III Education for Human Excellence, published by Bharatiya Vidya Bhavan, Bombay, p. 19.
P.A. Inamdar & Ots.
6-Judge Bench decision in Re v. Sidhrajbhai case AIR 1963 SC 540.
9-Judge Bench case in St. Xavier's.

Is this Justice?

2008-07-06T08:58:00.000-07:00

Is this called justice?
Unrecognized medical degrees (M.S./M.D./Diploma): A critical review case report
Dr. Mukesh Yadav, B.Sc., M.B.B.S., M.D., LL.B., PGDHR
Prof. & HOD, Forensic Medicine & Toxicology
Muzaffarnagar Medical College, Muzaffarnagar, U.P.
Abstract
The thing which should be done in about three years in ordinary course of time has been done in about six years (course started in year 1979, first batch passed out in year 1981 diploma cases, 1982, 1983 degree cases, writ filed in the year 2002, first hearing on August 16, 2002, finally disposed off on March 12, 2008) that to with the intervention of the Hon’ble High Court, Delhi. Is this called justice? Answer lies in famous proverb which reads: justice delayed means justice denied. Justice should not only be done but it should appear to be done. Is it not violation of fundamental right to speedy trial enshrined in Indian Constitution?
Hon’ble High Court of Delhi went on to the extent of issuing non-bailable warrant against some of the insensitive and irresponsible government authorities in addition to their appearance in person for not responding to the important public interest issue.
This paper deals with critical review of various court cases dealing with the problem of unrecognized P.G. Degrees and diplomas awarded by the Government Medical Colleges through out the India in extreme violation of the MCI Act, 1956, Rules and Regulations and Directions of Hon’ble Supreme Court of India along with reasons and suggestions to solve this problem and improve the quality of medical education in India.
Key Words: Affidavit, Adjournment, Amended Memo, Dasti Order, Reply, Reminder, Rejoinder, Re-notice, Petitioner, Respondent, Medical Council, Recognition of Degree, Medical College.
Introduction:
The issue before hand is affecting common man’s right to health by availing services of doctors with unrecognized degrees. This is also related to compromising on quality of medical education and health care, thus plying with the life of common man.
This leads to damage not only to innocent, poor but intelligent and talented doctors in the form of loss of job, denial of job, denial of promotion, etc., but also misrepresentation to general public by allowing practice by these doctors.
More surprisingly the protector of law and justice i.e. State Instrumentalities / authorities doing illegality and even patronizing these illegalities to perpetuate in the future with no end. Not taking it seriously but producing more and more criminals (innocent doctor specialists) to do crime against the common men.
Material & Methods:
Material and methods for this paper comprises critical review of some of the landmark judgments of Hon’ble High Courts and the Hon’ble Supreme Court along with other statutory provisions, MCI Acts, Rules and Regulations.
Importance of recognition:
An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs.
Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition.
Main question is who is at fault?
Petitioners exhausted all the domestic remedies available to solve the problem of unrecognized medical degrees. Problem of opting unrecognized degrees after a hard labour of years together at the time of counseling because candidates left with no option but to opt for them in the hope that they may be recognized in the mean time when they complete their course of studies (three years time is more than enough for getting recognition), because in the present scenario plain M.B.B.S. without specialization is no more.
On one hand government is allowing other countries doctors to come and practice in India in the name of acute shortage of specialists but doing nothing for Indian doctors. Private medical colleges which start working very recently and getting their degrees recognized, then why not government, which is the statutory duty of the Government.
In the name of acute shortage of faculty, MCI / Central Government allows non medical persons with degrees beyond the purview of MCI to be appointed and even promoted to higher post as faculty members. Many doctor with unrecognized degrees occupying the topmost posts of health department of the Government and not doing anything to solve this problem.
Many States and medical colleges, both private and government appointing same unrecognized degree holders as faculty, but not allowing to join others with same qualifications, which is a discrimination under Article 14 of the Indian Constitution.
No right to practice due to non registration and unrecognized degrees which is violation of Article 19(1) (g) of the Indian Constitution. If these doctors are not eligible to hold faculty post they are also not eligible to practice medicine confirmed by the MCI in its response to a letter under Right to Information Act-2005.
This writ petition was filed by five medical doctors who pursued P.G. Courses (M.D./M.S./Diploma) from one of the Government Medical College, B.R.D. Medical College, affiliated to D.D.U. University, Gorakhpur, U.P. [Order dated Jan. 20, 2005] [1]
All the petitioners had completed their courses in M.S. (General Surgery), M.D. (Paediatrics), M.D. (Anaestesia), M.D. (Obst. & Gynae.) and M.D. (Skin & V.D.) respectively way back in 1996-97. [Order dated Jan. 18, 2008] [1] M.D. Medicine is still not recognized.
Admission against unrecognized courses:
Lucknow Bench, Allahabad High Court, comprising Chief Justice, Ajoy Nath Roy and Justice Jagdish Bhalla observed “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 overall supervisor of Medical Education in India. Whether an institution is fit to admit students for the purpose of study ultimately with the aim of receiving medical degrees from that institution, is a matter, which is in the sole decision of Medical Council. If the Medical Council de-recognizes institutions, courses or seats, then and in that event it means that those institutions, those courses or those seats, as the case might be, are not fit for producing qualified doctors of that level or that specialty”. [2]
Over 6000 students and resident doctors in state-run hospitals were on strike protesting the reduction in seats of P.G. Courses by the Medical Council of India. “The government was making all efforts to resolve the issue with the Centre and the MCI” - Sursh Shetty, Minister of State, Medical Education, Maharastra. The Medical Teachers Association which is supporting the resident doctors and students strike by wearing black badges will also hold a General Body Meeting and decide the future course of their action”- Shailendra Mohite, General Secretary, Teachers’ Welfare Association. [12]
“The government would apply for recognition of seats belonging to 76 post-graduate medical courses not recognized by the Medical Council of India”. The government had decided to exclude seats belonging to courses recognized by the State but not by the MCI. The State Government would invite MCI team to carry out inspection in colleges to see if they fulfill the criteria prescribed to offer courses so that the same are recognized. The last such audit was carried out in 1993. In a week we will know how many courses MCI will consider for recognition next month (May 2008). We will ask for the remainder during the October (2008) exams. - Amitabh Chandra, Principal Secretary, Medical Education, Government of Maharashtra. [13]
“The State Government said it did not fill all the seats this year (2008) because the Bombay High Court has asked why students were being admitted to courses not recognized by the Medical Council of India. All post graduate courses in Maharashtra are recognized by the State and the Maharashtra Medical Council”. [14]
Resident Doctors of 13 Government Medical Colleges across Maharashtra had struck work protesting the reduction in post-graduate seats from 663 last year (2007) to 411 this year (2008) - a cut of 242 seats. The seats have been reduced because the Directorate of Medical Education & Research (DMRE) failed to get the mandatory recognition for the seats from the Medical Council of India. [15]
The Supreme Court on April 15, 2008 issued notice to Centre, all States, and Medical Council of India on plea seeking directions to the authorities to ensure that the medical institutes do not admit students or grant specialized post graduate degrees which are not recognized by the MCI and other government bodies. It challenged non-recognition of the specialized post-graduate courses in M.D./M.S./Diplomas despite the fact that government medical colleges through affiliated universities award such degrees. [17] [18]
Who is at danger?
Lucknow Bench of Allahabad High Court observed “……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. Also, 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 an unknowing patient”. [2]
A case is also pending in the Hon’ble High Court, Mumbai in W.P. No. 41/2008 regarding admission against MCI Un-recognized seats. Candidate has to submit an undertaking if a MCI non-recognized seat is allotted to him/her as per choice and merit, stating that he is aware about the status of the seat and its consequences. [Point C: Procedure and Selection sub-point 5] Notification is issued by Competent Authority & Director Medical Education & Research, Mumbai. [11]
Similar procedure is adopted by the U.P. Government for filling MCI unrecognized seats in spite of warning for not admitting on these seats was issued by the MCI. Is this all the duty of Government authorities to get in writing that they are informed about the status of unrecognized seats and they cannot claim damages? [2]
Guidelines / statutory duties for getting recognition:
Insertion of new sections 10A, 10B and 10C:
After Section 10 of the Indian Medical Council Act, 1956 (hereinafter referred to as the principal Act), [102 of 1956] the following sections shall be inserted namely:
Section 10A…………..
Time for seeking permission for certain existing medical colleges, etc.
Section 10C
If, after the 1st day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment) Act, 1993 any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity, such person or medical college, as the case may be, shall seek, within a period of one year from the commencement of the Indian Medical Council (Amendment) Act, 1993, the permission of the Central Government in accordance with the provisions of section 10A.
If any person or medical college, as the case may be fails to seek the permission under sub-section (1), the provisions of section 10B shall apply, so far as may be as if, permission of the Central Government under section 10A has been refused. [16]
It is important to mention here that in whole scheme of recognition of medical degree no apparent role of students, only Medical College / University / State Government / Central Government and MCI are involved. Then why due to fault of any of these authorities students left to suffer.
A 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. [21]
In the case of a post-graduate degree in the concerned subject awarded by a Statutory Indian University, no recognition or declaration of equivalence by any other University is called for. This is all the more so in the case of a medical degree – basic as well as post-graduate – that is awarded by a statutory Indian University and which has been specially recognized by the Indian Medical Council. [para11][21]
Perusal of Schedules to the Indian Medical Council Act, 1956 clearly indicates that the medical qualifications which are recognized by the Universities and Medical Institutions in India have been mentioned. According to the First Schedule qualification Doctor of Medicine in Pathology in abbreviation from M.D. (Path.) has been recognized in the Rani Durgavati Vishwa Vidhyalya, Jabalpur. Thus, it was incumbent upon the respondent No. 1 University to have awarded only that degree which is recognized one and to amend the degree from that of M.D. (Pathology and Microbiology) to M.D. (Pathology) as this is the only change in nomenclature of the degree.
For the fault of University, the students cannot be made to suffer. Since they have acquired qualifications, degrees 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). The petitioner and such other similar students are being deprived of their right to education and other fundamental rights enshrined under Articles 14, and 21 of the Constitution of India which make it clear that the petitioner and such other students cannot be dealt with in such an arbitrary manner. [para 8] [22]
The Supreme Court observed “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”. [Paras 25, 28, 30, 31] [23]
In spite of clear directions from the High Court of Allahabad, Lucknow Bench, [2] as well as Supreme Court of India [23] to the concerned authorities of State Governments to seek recognition after 1993, no sincere effort in this regard is initiated. After the insertion of Ss. 10A, 10B and 10 C in the Medical Council Act, the MCI has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993.
Any medical college or institution, which wishes to increase the admission capacity in M.B.B.S. / Higher Courses (Including Diploma / Degree / Higher Specialties) has to apply to the Central Government for the permission of the State Government and that of University with which it is affiliated and in conformity with the regulations framed by the MCI. [Paras 25, 28, 30, 31] [23]
Apex Court further added that “to say that the number of students as permitted by the State Government and /or University before June 1, 1992 could continue even if medical council has fixed the admission capacity would be allowing an illegality to perpetuate in all time to come. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the MCI. [Para 31] [23] Medical Council Act (102 of 1956) – S. 33- regulations framed under – falling within the purpose mentioned in S. 33- will have mandatory force. [Para 25] [23]
Important directions:
Principal of B.R.D. Medical College, Gorakhpur was directed to take necessary steps with in a period of six weeks from the date of order to complete the formalities of making applications and depositing the requisite fee for approval of courses. [Order dated May 14, 2004] [1]
Principal of B.R.D. Medical College, Gorakhpur was directed to take steps to meet the requirements of MCI to enable it to recognize the P.G. Courses in question. He was granted 10 days time to complete all formalities required for enabling MCI to carryout inspection. [Order dated Feb. 23, 2005] [1]
The MCI had also been directed to scrutinize the applications, carryout the MCI Inspection with in a period of next four week and then inform Chief Secretary of U.P. and Registrar, D.D.U. University, Gorakhpur, U.P. [Order dated Feb. 23, 2005] [1]
Registrar, D.D.U. University, Gorakhpur, U.P. also directed to ensure taking all appropriate steps by the U.P. P.S.C. for making requisite teaching faculty appointments. [Order dated Feb. 23, 2005] [1]
The Central Government was directed to take necessary steps at the earliest to take appropriate measures to effectuate the recommendations of the MCI for recognition of degrees in question having regard to the fact that the petitioners in these cases completed their course in 1996-97. Court further directed that The Central Government shall ensure that appropriate steps are taken expeditiously and as for as possible within three weeks. [Order dated Jan. 18, 2008] [1]
Affidavit dated 21-02-2005, wherein it has been stated that the respondents are undertaking steps to make up the deficiencies pointed out with regard to the existence of the faculty members in the college and on submission that a period of one month is required to place the up-to-date status with regard to the appointments of the faculty members so as to enable a meaningful inspection of the Medical Council of India. Court posted matter for reporting status with regard to the appointments which are necessary to comply with the deficiencies pointed by the Medical Council of India. [Order dated April 28, 2005 [1]
Adverse observations of the Court:
Role of Central Govt.: when counsel for Union of India seeks time to obtain instructions whether the Govt. has verifies the degrees in question, Hon’ble Court made observations: “Apparently, the Central Govt. is dragging its feet over the matter though the Medical Council had sent a formal recommendation regarding recognition of the degrees way back on December 26, 2007”. Court further observed “In these circumstances any further delay would result in disadvantage to the petitioners”. [Order dated Feb. 14, 2008] [1]
Court further directed “In these circumstances, any further delay would result in disadvantage to the petitioners. Unless the steps directed by Court in its previous order are taken by the next date of hearing, the Joint Secretary (Medical Education) Government of India, Department of Health shall be present in court to assist the proceedings and ensure compliance of the court orders”. [Order dated Feb. 14, 2008] [1]
It is made clear that if the Director of Medical Education, State of UP is not present on the next date, non-bailable warrants may be issued. [Vikramajit Sen, J. July 07, 2005] [1]
Despite repeated orders of this court, respondent nos. 6 to 9 have not taken steps required to meet the requirements of the Medical Council of India which have been duly notified to it. The directions made by this court in terms of the affidavit dated 21st February, 2005 filed by respondent no. 8 have also not been complied with. Learned counsel who is appearing on behalf of these respondents is unable to point out the steps taken for compliance of the directions made on 23rd February, 2005 and 28th April, 2005. In these circumstances, it is directed that the Director, Medical Education of the State of Uttar Pradesh having his office in Lucknow shall remain personally present in this court on the next date of hearing. He shall make available all the relevant record relating to the matter in issue and shall ensure compliance with the directions made by this court. A copy of this order shall be sent to the Resident Commissioner of the State of Uttar Pradesh who is at Delhi to ensure compliance of the orders passed today. [Gita Mittal, J. May 25, 2005] [1]
Perusal of the record shows that the respondent no.7 which is the concerned authority has been appearing in the matter right from 16.8.2002. Despite the seriousness of the matter no counter affidavit has been placed on record. The respondent has opted merely to watch the proceedings even though it is the most concerned respondent in the instant case. Let the stand of the said respondents be positively placed on record within a period of ten days from today. The affidavit to be filed by the respondents shall deem with the allocations made by Medical Council of India in respect of the deficiencies pointed out by it. In case the affidavit as directed is not filed within the stipulated period the Director of Medical Education and Training of the state of U.P. shall remain personally present in Court with all the relevant record. [Gita Mittal, J. January 20, 2005] [1]
Concerned Authorities:
Following are the concerned authorities involved in the process of recognition of the medical degrees / diplomas in the medical colleges:
Head of Department of concerned specialty
Principal of the Institution
Registrar, Affiliated University
Director General Medical Education
Chief Secretary of State
Principal Secretary, Medical Education
Health Secretary of Medical Education
Medical Council of India
Member, Medical Council of India (nominated and elected both U.G. & R.G.)
Union of India
Secretary, Health & Family Welfare Department, Government of India
Union Public Service Commission, New Delhi
Public Service Commission, Concerned State
University Grant Commission, etc.
Important reasons for delayed Justice:
Involvement of different authorities (State and Union Government)
Complicity of the case
No knowledge of MCI Rules and Regulations by MCI Members and concerned Authorities
Insensitivity of government and concerned authorities
Lack of political will
Seeking unnecessary time to file replies, rejoinder, to place additional documents and facts on record
Asking for unnecessary adjournments for personal problems like: unable to attend the court, plea of recently engaged for the case, notices or documents not served to them, etc.
Change of bench or transfer of case to another bench
Insensitiveness, non-cooperative and irresponsible attitude of the concerned authorities by dragging feet over the problem with impunity.
Denial of Right to Speedy Trial:
Medical P.G. Courses M.D./ M.S. / Diploma were started in the years 1979, 1980, 1983 respectively and first batch appeared for examination (should be date of inspection for recognition by the MCI) in the years 1981, 1982, 1983, 1985, 1986 respectively. Petitioners completed their courses in the years 1996-1997 and till 2002 nothing happened when they filed a case in the Hon’ble Delhi High Court, first hearing of which occurred on August 16, 2002 and finally disposed on March 12, 2008. More than 28 hearings were done by the Hon’ble High Court and a total of eight judges including then Chief Justice of Delhi High Court hared the matter.
Hon’ble Court made many adverse observations against the concerned government authorities. In the mean time another case was filed by the M.B.B.S. Students in the Lucknow Bench of Allahabad High Court heard by the then Chief Justice and passed order on April 22, 2005. [2]
Consequences of possessing unrecognized degrees / diploma:
No right to practice
Termination of services
Demotion form senior post
No right to registration of degree in Concerned State Medical Council / Medical Council of India
No call for interview
Denial of employment, promotion
Not counted as Faculty Members especially for starting P.G. Courses
Humiliation for holding unrecognized degree
No right to write unrecognized degree as suffix with name
Framing of Criminal cases, civil cases of negligence
Requirement of recognition of degree by MCI and right to practice Medicine / that specialty found mention in Chapter I, as “No person other than a doctor having qualification recognized by MCI and registered with MCI/SMC is allowed to practice Modern System of Medicine or Surgery”. (Point 1.1.3), and as “Physician shall display as suffix to their names only recognized medical degrees or such certificates / diplomas and memberships / honours which confer professional knowledge or recognizes any exemplary qualification / achievements. [Point 1.4.2] [19]
“Medical Teachers in all Medical Colleges except the Tutors, Residents, Registrars and Demonstrators must posses the requisite recognized Postgraduate Medical qualification in their respective subject. [Point 3], and as “the appointing authority may consider the holders of equivalent postgraduate qualification, which may be approved by the MCI from time to time, to have the requisite recognized qualification in the subject concerned. [Point 4, Schedule I] [20]
“From January 1985 all fresh entrants as teachers in medical colleges should have the requisite recognized Indian Postgraduate medical qualifications (recognized by the MCI). [Schedule II, page 74, Point 6] [20]
Suggestions:
Organization of workshop for MCI Members and other concerned authorities for making them aware about recent rules and regulations.
Fixing of Accountability of concerned authorities for failing to take appropriate action in time bound manner.
Filing of PIL for enforcement of Fundamental Rights and violation of statutory provisions or Hon’ble Court directions.
Use of Right to Information Act-2005 by all the affected parties including common men to know the problem or status of progress on this issue.
Filing of case in consumer court for compensation for awarding unrecognized degree by the concerned authorities which amount to deficiency in service
Hon’ble Court should ensure strict compliance by not allowing frequent adjournments on personal reasons or pity arguments, by issuing direction for personal appearance of defaulting government authorities, issuing non-bailable warrants, issue of copy of order to the Resident Commissioner of the State who is at Delhi in case of case filed out side the State in Delhi High Court or Hon’ble Supreme Court to ensure compliance of the order passed by the Court.
The Central Government / State Government stop admission if MCI recommends so, if not MCI should approach Hon’ble Court for issue of direction or writ for compliance by filing PIL.
The Central Government should coordinate in the matter of recognition as the matter is falling under the State List, and Concurrent List of the Constitution and following the directions of various court orders including Hon’ble Supreme Court on many occasions.
Concerned members of Medical Council from the concerned State both nominated and elected should be held accountable for delay in getting recognition
Summary & Conclusions:
The ultimate sufferers of all these problems are concerned student and common men getting treatment from these doctors.
For speedy disposal of cases minimum adjournment, no change of judge or transfer of case to other bench, service through dasti orders for ensured time bound service of affidavit, counter affidavit, rejoinder, etc, along with strict compliance of orders of the court.
Pursuant to the direction of the Court, the Medical Council of India had, in view of the pendency of the proceedings and matter, recommended that the courses undergone by the present petitioners should be notified under section 11 (2) of the Indian Medical Council Act, 1956 on December 26, 2007. This was noticed by the previous order of the Court on January 18, 2008 and February 14, 2008. The Central Government was enjoined to take appropriate consequential action towards the notifications. Learned Counsel for the Central Government has placed on record a copy of notification issued on February 22, 2008. In its terms, the M.S. (Surgery), M.D. (Anaesthesia), M.D. & D.C.H. (Paediatirics), M.D.(Obst. & Gynae), M.D. & D.V.D. (Skin & V.D.) undergone by the petitioners have been notified under section 11(2) of the Act w.e.f. different dates which are as specified in the notification. In view of the above, the claim in the present petition has been satisfied. The Writ Petition is disposed of in the above terms. [S. Ravindra Bhat, J. March 12, 2008 Final Order of Disposal]
The important question is still persisting i.e. is it the duty of the student who after doing hard labour qualifies tough competition and get admission for unrecognized course and after completing the course successfully had to approach the court to remind the statutory duties of concerned government authorities that to at the cost of his time, money and career at stack.
References:
1. Dr. Ms. Swapnil Sandhya & Others v. Union of India & Others, W.P. (Civil) 3065/2002, Disposed on March 12, 2008 in the High Court of Delhi at New Delhi
2. Dr. Om Prakash and Others v. State of U.P. and Others, Writ Petition No. 1563 (M/B) of 2005, Order dated April 22, 2005 of Lucknow Bench, Allahabad High Court.
3. Minutes of P.G. Medical Education Committee dated June 16, 2006 (No.MCI-4(3)/2006-Med./) Item No. 102, 103, 104, 105, 106, 112; page No. 44-49
4. Minutes of General Body of MCI 131ST Session No.MCI-6(2)/2006-Med./ dated 16-11-2007, Item No. 11, 12, 13, 14, 15, 26; page No. 11, 12, 15, 16.
5. The Central Govt. Notification under Section 11(2) of the Medical Council of India Act, 1956 dated 22-02-2008 [Order dated March 12, 2008]
6. MCI Notification No.MCI-66(22)/2007/Med.24600 dated 26-12-2007 for recognition of M.D. & D.C.H. (Paediatrics)
7. MCI Notification No.MCI-66(22)/2007/Med.24596 to dated 26-12-2007 for recognition of M.D. & D.V.D. (Skin & V.D.)
8. MCI Notification No.MCI-66(22)/2007/Med.24597 to dated 26-12-2007 for recognition of M.D. & D.G.O. (Obst. & Gynae.)
9. MCI Notification No.MCI-66(22)/2007/Med.24569 to dated 24-12-2007 for recognition of M.S. (General Surgery)
10. MCI Notification No.MCI-66(22)/2007/Med.2459 to dated 26-12-2007 for recognition of M.D. & D.A. (Anaesthesiology)
11. The Times of India, June 7, 2008: 17 vide Directorate of Medical Education & Research, Mumbai, Notification No. DMER/PGM-CET 2008/2ND Round / Notification-8/2-A, Dated 5TH June 2008.
12. Sunday Times of India, April 20, 2008: 7.
13. Neha Bhayana. ‘State assures more seats, students wary’, Hindustan Times, April 20, 2008: 7.
14. ‘Six days on, resident docs call off strike’, The Times of India, April 22, 2008: 7.
15. ‘Maharastra doctors call off strike’, The Times of India, April 21, 2008: 11.
16. The Indian Medical Council (Amendment) Act, 1993 (No.31 of 1993), Published in the Gazette of India – Part II, Section 1, No. 54, dated April 3, 1993. It shall be deemed to have come into force on the 27th Day of August 1992.
17. Sanjay K Singh. ‘SC notice to Centre, States, MCI on unrecognized Medical Colleges in country’, The Economic Times, New Delhi, April 16, 2008: 3.
18. Dr. Mukesh Yadav & Others v. Union of India & Others, Writ No.124 of 2008, Supreme Court of India.
19. (Point 1.1.3), (Point 1.4.2) of the Indian Medical Council (Professional Conduct, Ethics and Etiquettes) Regulations-2002, published in the Gazette of India, Part III, Section 4 dated April 6, 2002, MCI Notification NO. 211(2) 2001, Dated March 11, 2002, regarding:
20. Schedule I, (Point 4), Schedule II, page 74, Point 6) of the MCI’s Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (Published in the Gazette of India, Part III, Section 4, dated December 5, 1998.
21. Dr. B.L. Asawa v. State of Rajasthan and Others, Civil Appeal No. 303 of 1976 decided on March 5, 1982 Rajasthan High Court.
22. Dr. Harish Bajaj v. Rani Durgavati Vishwa Vidyalaya, Jabalpur and Others, AIR 2003 Madhya Pradesh 114-117. Writ Petition No. 30 of 2002, dated 10-05-2002.
23. Medical Council of India v. State of Karnataka and Others, AIR 1998 SC 2423.

Problem of Unrecognition of Medical Degrees / Diplomas

2008-07-06T08:52:00.000-07:00

Un-recognition of Medical Degrees: Problems and Solutions
Dr. Mukesh Yadav
Prof. & HOD, Deptt. of Forensic Medicine
Muzaffarnagar Medical College
Muzaffarnagar, U.P.
Email: drmukesh65@yahoo.co.in
Abstract
With the privatization of medical education in India new avenues and opportunities are created to Indians. It also started exposing lacunae in the Indian medical education systems prevalent from quite a long time. One of the problems is that of non-recognition of medical degrees i.e. M.D./M.S./ Diplomas, by the Medical Council of India. In spite of this fact the government medical colleges through affiliated Universities award these degrees.
This is in clear violation of many of the fundamental rights of Indian citizens like right to health care, right to work, etc. under Article 21, 14 and 16 of the Indian Constitution. This paper deals with review of the situation in India regarding the problem of recognition of medical degrees, court’s views, and reasons for the problem and possible solutions to solve the problem.
Key Words: Medical Degree, Medical Council of India, Medical College, University, Court, Diploma, Indian Constitution.
Introduction:
The problem of awarding of un-recognized medical degrees and diplomas by the Indian Universities is prevalent throughout India. These degrees are not only belonging to the specialty of Forensic Medicine but to almost all the medical specialties. The main reasons for the prevalence of this problem is rapid progress in the field of modern medicine after independence, which is not able to keep the pace, by the Medical Council of India (MCI) to keep the watch on medical education standards. Another important reasons include unawareness about the procedure of recognition of degree, lack of initiative by the concerned department, apathy of other government authorities to understand and solve the problem. Prevalent Corruption in MCI and State Medical Councils, etc., along with lack of adequate infrastructure, staff, space and equipments are other important reasons for problem of un-recognized degrees.
“So far as the admission 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. Whether an institution is fit to admit students for the purpose of study ultimately with the aim of receiving medical degrees from that institution, is a matter, which is in the sole decision of Medical Council. If the Medical Council de-recognizes institutions, courses or seats, then and in that event it means that those institutions, those courses or those seats, as the case might be, are not fit for producing qualified doctors of that level or that mentality, specialty. [R-1]
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. [R-1]
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. [R-2]
Problem is prevalent through out India:
The problem of un-recognition of degree is prevalent throughout India including States like: Delhi, Haryana, J& K, Punjab, U.P., Bihar, Kerala, etc.
Reasons for problem:
Apathy of Government Authorities:
In spite of clear directions from the High Court of Allahabad, Lucknow Bench, [1] as well as Supreme Court of India [2] to the concerned authorities of State Governments to seek recognition after 1993, no sincere effort in this regard is initiated. After the insertion of Ss. 10A, 10B and 10 C in the Medical Council Act, the MCI has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993.
Any medical college or institution, which wishes to increase the admission capacity in M.B.B.S. / Higher Courses (Including Diploma / Degree / Higher Specialties) has to apply to the Central Government for the permission of the State Government and that of University with which it is affiliated and in conformity with the regulations framed by the MCI. No medical college can admit any student in excess of its admission capacity fixed by the MCI subject to increase thereof as approved by the Central Government. Sections 10A, 10B and 10 C in the Medical Council Act will prevail over S. 53 (10) of the State Universities Act and S. 41 (b) of the State Capitation Fee Act. [Paras 25, 28, 30, 31] [R-2]
Apex Court further added that “to say that the number of students as permitted by the State Government and /or University before June 1, 1992 could continue even if medical council has fixed the admission capacity would be allowing an illegality to perpetuate in all time to come. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the MCI. [Para 31] [R-2]
Medical Council Act (102 of 1956) – S. 33- regulations framed under – falling within the purpose mentioned in S. 33- will have mandatory force. [Para 25] [R-2]
Consequences:
Un-recognized medical degree holders may face problem of denial of employment by Union Public Service Commission, Delhi, PGIMER, Chandigarh, many private Medical Colleges; problems during promotion to higher post, problem during MCI Inspection, etc., in addition to humiliation and embarrassment for no fault of them.
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.
In a Public Interest Litigation (PIL) filed by the writ-petitioners, which described themselves as Doctors before the High Court in Lucknow Bench, comprising of Ajoy Nath Roy, C.J. and Jagdish Bhalla, J. on 20-04-2005 observed:
They are final year students of M.B.B.S. Course at B.R.D. Medical College, Gorakhpur. The main substance of the writ petition is that the Post Graduate courses of the said Medical College have been substantially de-recognized by the Medical Council of India but this fact notwithstanding, admissions are going on in these Colleges and the Post Graduate Medical Courses even now.
Some other Colleges are also named in the petition like Maharani Laxmi Bai Medical College, Jhansi and S.N. Medical College Agra. As for as we have been able to gather today, these colleges are not legal personalities and are not Bodies Corporate. These are basically State instrumentalities. The State also appears to have issued directives to at least the B.R.D. medical College, Gorakhpur, not to admit students and not to recognize students to Post Graduate Courses.
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).
Court’s Views:
Supreme Court has already said as under: [R-5]
Judges comprising of M.M. Punchhi, C.J.I., K.T. Thomas and D.P. Wadhwa, JJ. Observed in 1998:
“The Indian Medical Council Act, 1956 has constituted the MCI as an expert body to control the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus, there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses”. [Para 8] [R-2, 5]
Any University or medical institution in India, which grant a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognized, and the Central Government, after consulting the MCI, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein. [Para 10] [R-2]
Entry 25, List III relating to education including technical education, medical education and universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66, List I and Entry 25, List III should, therefore, be read together. Entry 66 gives to Union to see that a required standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to co-ordinate and determines the standards for Higher Education. That power includes the power to evaluate, harmonize and secure proper relationship to any project of national importance. It is needless to state that such a co-ordinate action in higher education with proper standards is of paramount importance to national progress. It is this national interest; the legislative field in regard to ‘education’ has been distributed between List I and List III of the Seventh Schedule. [Para 14] [R-2]
The Court also referred to an earlier decision [R-6] where, as noted in that case, this Court said Regulation II was directory and did not have any mandatory force. Whether a Regulation is directory or mandatory will depend upon the language used in the Regulation and object of the Act it seeks to achieve. [Para 22][R-2]
Mr. Rama Jois, appearing for J.N. Medical College, Belgaum, respondent No. 16, submitted that if the State or the University has fixed intake for admission to medical college as on June 1, 1992 that would continue to hold good unless the medical college asks for increase. He said that even if the Medical Council had passed production (sic) of the seats existing on June 1, 1992 it could do so only after notice and after hearing the medical college. He submitted that in the letter of the Central Government to the Secretary, Medical Council, which is dated January 19, 1994, clarification was given as to the word “established” mentioned in Section 10 A of the Medical Council Act, as amended. In this letter the opinion of the Ministry of Law, Justice and Company Affairs (Department of Legal Affairs) was communicated, which was to the following effect:
“The provisions of Section 10 A of the IMC (Amendment) Act, 1993 will not apply to those colleges who have obtained all necessary statutory / administrative approvals from the respective authorities and where admission procedure was commenced prior to June 1, 1992. This would imply that all those Medical Colleges who have started the admission procedure prior to 01-06-1992 after taking the following permission, will be outside the purview of ‘Amendment’ Act:
(i) Permission of the concerned State Government.
(ii) Affiliation of the concerned University.
This would also apply to cases of increase in admission capacity in Medical Colleges and starting of new Post Graduate Medical Courses”. [Para 23]
There were further answers to quarries raised by the MCI in this letter, which should that Section 10A would not be applicable in case admission procedure was commenced prior to June 1, 1992. [Para 24] R-2, 7]
Directions issued by The MCI in its letter dated November 21, 1994 to the State Government, copies of which were also sent to the Director of Medical Education and to the Principal and Dean of the Medical Colleges inviting their attention to the provisions of Sections 10 A, 10B and 10C of the medical Council Act which amendment came into effect from August 27, 1992. [Para 27]
A direction, therefore, was issued to take corrective steps and to reduce the excess number of admissions being made in medical colleges in the State to the number as approved by the MCI. By letter dated August 24, 1995, the Central Government informed the State Government that if there was any proposal to increase the admission capacity college-wise to the Central Government. Since there was no response to the request made by the MCI to reduce the admission capacity to that fixed by the Medical Council, it requested the Central Government by its letter dated August 20, 1996 for taking penal action under Section 19 of the MCI Act for the purpose of de-recognizing the medical qualifications granted by the Universities in the State. [Para 27]
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. [R-1]
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.
Judges N.M. Kasliwal, J., and M.M. Punchi, J. delivered a decision on dated: April 26, 1991
These appeals by Dr. Arun Kumar Agarwal (appellant) and the State of Bihar are directed against the judgment of the Patna High Court dated 20th December 1990. The dispute relates for an appointment on the Post of Assistant Professor in Neurosurgery in the Patna Medical College and Hospital, Patna in pursuance to an advertisement dated 19-12-1987. The Selection Committee prepared a Panel on 04-07-1988, which was approved by the State Government on 26-09-1988.
It was also stated that the course of M.Ch. in Neurosurgery was being run only in the Rajendra Medical College, Ranchi, which the State Government recognized, and, therefore, the allegations of the writ petitioner (Respondent No. 5) that the degree obtained by the appellant was not recognized, was baseless and incorrect.
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 Medical Council of India has not recognized the same so far. We find no force in this contention, as the Ranch University started this course 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 accepted this position. We are not concerned in this case about the value of such degree for places outside State of Bihar, but so far the present case is concerned which relates to the post of Assistant Professor in Patna Medical College and Hospital, Patna which post is under the Bihar Government, no such objection can be maintained by the Respondent No. 5.
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 (c) and 3(c) 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.
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-3]
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. [R-3]
Judges A.D. Koshal, J., R.B. Mishra, J. and V. Balakrishnana Eradi, J. obsereved:
--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-4]
Rajasthan University Ordinance – Ordinance 65 (vii) (occurring in chapter XX of the Handbook of the University of Rajasthan, Part II, Vol. 1) – When the University does not conduct any examination for the award of the degree of M.D. (Forensic Medicine), there cannot be any question of declaration of ‘equivalence’ in respect of such a degree awarded by any University. [R-4]
This appeal by special leave arises out of a writ petition filed by the appellant herein in the High Court of Rajasthan, challenging the legality of the action of the Rajasthan Public Service Commission in issuing to the appellant the communication – Annexure IV – dated July 21, 1973, stating that the appellant was not eligible for being considered for recruitment to the post of Lecturer in Forensic Medicine in the Government Medical College in the State since he lacked the necessary academic qualifications specified in the advertisement and that consequently, the application of the appellant stood rejected. There were also other incidental prayers in the writ petition for the issuance of an appropriate writ or direction to the Public Service commission to refrain from finalizing the selection without considering the case of the appellant, and for a direction being issued to the State Government of Rajasthan not to accept the recommendations of the Public Service Commission in making appointments to the post of Lecturer in Forensic Medicine to Medical Colleges in Rajasthan in case the appellant was not called for interview along with the other candidates.
A learned Single Judge of the High Court allowed the writ petition holding that the Public Service Commission had acted illegally in treating the appellant as not possessing the requisite academic qualifications and rejecting his candidature for the post of Lecturer in Forensic Medicine. The State of Rajasthan and the Public Service Commission carried the matter in appeal before a Division Bench of the High Court. That a Division Bench allowed appeal by its judgment dated October 30, 1974, whereby the appellant was dismissed. Aggrieved by the said decision, the appellant has preferred this appeal after obtaining special leave from this Court. [Para 2][R-4]
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, Medical & Public Health Department in accordance with the Rules. [Para 5] [R-4]
The sole ground on which the appellant was treated by the Commission as ineligible for consideration was that the post-graduate degree in Forensic Medicine possessed by the appellant is not one awarded by the University of Rajasthan and the said degree has also not been recognized by the University of Rajasthan as an equivalent qualification.
The University of Bihar at Muzzafarpur is one duly established by statute and is fully competent to conduct examinations and award degrees. The degree of Doctor of Medicine (Forensic Medicine) M.D. (Forensic Medicine) of The University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognized by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognize the medical qualifications granted by any University or Medical Institution in India. [Para 11] [R-4]
The appellant had, by then, obtained the M.D. degree in Forensic Medicine from the University of Bihar, Muzaffarpur in 1970 and had been functioning as Lecturer in Forensic Medicine in one of the Government Medical Colleges in Rajasthan on a temporary and adhoc basis from December 31, 1970 onwards. [Para 6] [R-4]
Possible Solutions:
A medical student requires grueling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-backed medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. Any medical college or institution which wishes to increase the admission capacity in M.B.B.S. / higher courses (including Diploma / Degree / Higher Specialties) has to apply to the Central Government for the permission along with the permission of the State and that of the University with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the Medical Colleges or Institution, which is recognized by the Medical Council, can so apply. [Para 30] [R-2]
Summary and Conclusions:
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] [R-2]
A Post-graduate medical degree granted by a University duly established by statute in this country which has been also recognized by the Indian Medical Council – Ipso facto to be regarded, accepted and treated as valid throughout our country. [R-4]
Having thus held that it is the Medical Council, which can prescribe the number of students to be admitted in medical 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. [Para 31] [R-2]
Standards have been laid by the medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standard of medical education throughout the country. Seats in medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. [Papa 29] [R-2]
Regulations framed under – Falling within the purpose mentioned in Section 33 – will have mandatory force. [Medical Council Act, 1956 (Act 102 of 1956), S. 33]
References:
R-1-Om Prakash and Others V. State of U.P. and Others, Writ Petition No. 1563 (M/B of 2005 In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow.
R-2-Medical Council of India v. State of Karnataka and Others, AIR 1998 SC 2423.
[Civil Appeal Nos. 3275 with 3576-77 of 1998 (arising out of S.L.P. (C) Nos. 14839 of 1997 with 20035 of 1997 and 547 of 1998), D/-16-07-1998. W.A. No. 8413 of 1996, dated 16-07-1997 (Kant.) GP/GP/S100261/98/VVG/CSL]
News papers references.
R-3-Dr. Arun Kumar Agarwal v. State of Bihar & Others, A.I.R. 1991 S.C. 1514; J.T. (1991) 2 S.C. 352. State of Bihar & Others V. Dr. Chandra Mohan Jha & Others, A.I.R. 1991 S.C. 1514; J.T. (1991) 2 S.C. 352.
R-4-Dr. B.L. Asawa v. 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.
Rajasthan Medical Service (Collegiate Branch) Rules, 1962 – Rule 12 - Rajasthan University Ordinance – Ordinance 65 (vii), Rajasthan University Act –Section 23-A.
1982 (1) LLN 582: 1982 (1) SLJ 416: 1982 (1) SLR 677: 1982 (1) Scale 22: 1982 (1) SCR 444: 1982 (44) FLR 308: 1982 (022) SCC (0055): 1982 AIR (SC) 933: 1982 LIC 614.
[R-5] State of Kerala v. Kumari T.P. Roshana (1979) 1 SCC 572: (AIR 1979 SC 765 at p. 771)
[R-6] Nivedita Jain’s CASE 91981) 4 SCC 296: (AIR 1981 SC 2045).
R-7- K.P. Varghese v. Income TAX officer, Ernakulam, (1981) 4 SCC 173: (AIR 1981 SC 1922).
Medical Council Act, 1956 (Act 102 of 1956), Ss. 10-A, 10-B, 33.
Karnataka Education Institutionals (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.