Full Judgment Text
Neutral Citation Number: 2023:DHC:2229
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 29 March, 2023
+ W.P.(C) 5737/2021 & CM APPL. 33511/2021
AJAY KUMAR SACHDEV ..... Petitioner
Through: Mr. Shanker Raju, Mr. Nilansh
Gaur, Ms. Anubha Bhardwaj and Mr. Rajesh
Sachdeva, Advocates.
versus
INSTITUTE OF LIVER & BILIARY SCIENCES &
ORS. …..Respondents
Through: Mr. Siddharth Panda, Advocate
for R-1 and R-2.
Mr. T. Singhdev and Ms. Anum Hussain,
Advocates for R-4/NMC.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
1. This is the second round of litigation by the Petitioner. By this
writ petition, Petitioner seeks inter alia quashing of letter dated
22.05.2021, whereby Respondent No. 1/Institute of Liver & Biliary
Sciences (hereinafter referred to as the ‘Institute’) has rejected
Petitioner’s application for the post of Professor (Surgical
Hepatology) on the ground that he does not fulfil the eligibility criteria
of publications as prescribed under the Institute’s Recruitment Rules
(hereinafter referred to as the ‘RRs’). Writ of mandamus is sought
directing the Institute to re-initiate the process of screening/selection
in terms of order passed by this Court on 01.02.2021, in the earlier
writ petition filed by the Petitioner being W.P.(C) 1129/2021.
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2. Factual score, as per the narrative in the writ petition and
necessary for adjudicating the issues emanating therefrom is that the
Petitioner completed his MBBS and M.S. in General Surgery from
Kanpur University and thereafter pursued his Ph.D. in Gastro-
intestinal (GI) Surgery from Delhi University. He joined the
Department of GI Surgery at G.B. Pant Hospital in 1986 as a Resident,
where he dedicatedly offered his services in teaching, research and
clinical activities till 1998. Petitioner not only taught but was also an
examiner for students in M.Ch. (specialisation in GI surgery) degree
course as an ad-hoc Associate Professor. In 1998, Petitioner cleared
the UPSC examination and was posted at G.B. Pant Hospital as
regular Associate Professor, GI Surgery. Between 2005-2019,
Petitioner worked as Senior GI Surgeon/CEO/Head/Chairman
/Director of GI Surgery Department in various reputed Hospitals like
Batra, Fortis, Kailash, Agrasen, to name a few. By a letter dated
07.02.2019, Secretary General of Medical Council of India
(hereinafter referred to as the ‘MCI’) confirmed Petitioner’s eligibility
for post of Professor in the Department of Surgical Gastroenterology
in medical colleges in India, based on his academic qualifications,
teaching experience and research publications.
3. On 18.12.2016 and 19.10.2017, advertisements were issued by
the Institute inviting applications for the post of Professor (Surgical
Hepatology) as per which the criteria of eligibility was M.Ch. in
Surgical Gastroenterology (2/3/5/6 years recognized course) or a
qualification recognized equivalent thereto with 11 years teaching
and/or research experience in a recognized Institution in the
Department of Surgical Gastroenterology etc. Petitioner applied for
the post and was hopeful of a positive outcome being eligible,
experienced and meritorious. Between 2017-2020, Petitioner visited
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the Institute several times to enquire about the status of his
application, but no information was shared with him and on
15.10.2020 he filed an RTI application to ascertain the status.
Replying to the RTI application on 13.11.2020 and 15.12.2020,
Institute informed the Petitioner that his application had been rejected
as he did not possess M.Ch. degree in Gastroenterological Surgery.
This decision of the Screening Committee as per the Petitioner was
illegal and contrary to the conditions advertised in the advertisements.
According to the Petitioner, the Screening Committee did not consider
his equivalence which was clearly demonstrated by his qualifications
as per the criteria laid down by MCI under the ‘Minimum
Qualifications for Teachers in Medical Institutions Regulations, 1998’
(hereinafter referred to as the ‘Regulations, 1998’) and his selection as
Associate Professor by UPSC. Finding no other option, Petitioner
filed a writ petition in this Court being W.P.(C) 1129/2021,
challenging the rejection of his application by the Institute.
4. In the meantime, on 31.01.2021-01.02.2021, Institute published
a fresh advertisement for filling up the post and thus the Court
disposed of the writ petition on 01.02.2021 on a statement made on
behalf of the Institute that if the Petitioner applies, his application
shall be considered by the Screening Committee and only after all the
applications were screened, the Selection Committee would consider
the names of the screened candidates. It was also assured to the Court
that the Screening Committee shall take into consideration the
communication of the MCI dated 07.02.2021, certifying his eligibility
and on which the Petitioner had placed reliance. Petitioner was
granted liberty to take recourse to legal remedies, if aggrieved by the
decision of the Institute, pursuant to the deliberations of the Screening
Committee.
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5. Petitioner applied for the post of Professor (Surgical
Hepatology) against the advertisement dated 31.01.2021-01.02.2021,
however, Petitioner received no information about the Committee’s
decision. Apprehending bias on behalf of the Director/Respondent No.
2, which the Petitioner had alleged even in the first round of litigation,
he sent an e-mail on 19.03.2021, requesting the Institute to
communicate the result of the Screening Committee. In response, the
Institute by a letter dated 13.04.2021 asked the Petitioner to submit
copies of his 06 articles. On account of Pandemic COVID-19 and
lockdown imposed by the Government, Petitioner did not have access
to any library at that stage, yet he somehow managed and submitted
details of 35 articles published by him, including citations of two
articles, vide e-mail dated 18.04.2021. Again there was no
communication from the Institute for some time and finally vide
impugned letter dated 22.05.2021, Institute rejected Petitioner’s
application on the ground that he did not fulfil the eligibility criteria of
publications. Petitioner attributes this to the personal vendetta and bias
of Respondent No. 2, who was interested in promoting someone
closely known to him and nurtured a bias towards the Petitioner.
6. Contentions on behalf of the Petitioner :-
(A). The impugned order rejecting the candidature of the Petitioner
is illegal and actuated by mala fides as Respondent No. 2. When the
Petitioner had applied for the first time, he was declared ineligible on
the ground that he did not possess M.Ch. degree. However,
Respondent No.2 did not succeed in his ill motives as MCI clarified
that the degree possessed by the Petitioner was equivalent to M.Ch.
Thereafter, Respondent No. 2 found another novel method to oust the
Petitioner from consideration, by creating a frivolous and
misconceived ground that he lacks the eligibility criteria of research
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publications required under the RRs of the Institute.
(B). Petitioner has submitted as many as 35 publications as against
the requirement of only 03 under the ‘Minimum Qualifications for
Teachers in Medical Institutions (Amendment) Regulations, 2019
(hereinafter referred to as the ‘Regulations, 2019’) and only 04 under
the earlier Regulations, 1998, which have a binding force. Institute has
no power to prescribe an eligibility criteria contrary to those
prescribed by National Medical Commission (hereinafter referred to
as ‘NMC’) under Regulations, 2019, since erstwhile MCI and now
NMC are statutory bodies created for regulating medical education
and medical institutes and the standards or qualifications set by them
bind medical institutions, including those which are autonomous, such
as the Institute herein. NMC was impleaded by the Court as a party in
the writ petition and was directed to file an affidavit clarifying
whether the Institute could prescribe the requirement of 06
publications i.e higher than those provided by NMC as minimum
qualifications and also if the publications submitted by the Petitioner
make him eligible for the post in question. NMC in its reply has
categorically stated that Circular dated 03.09.2015 regarding indexing
of the Research Publications, being prospective would not apply to the
publications of the Petitioner which are prior thereto and that 09
research publications of the Petitioner at serial Nos. 1, 3, 5, 6, 17, 18,
26, 28 and 29, meet the required criteria provided under Regulations,
2019. It is trite that Regulations of MCI/NMC will have an overriding
effect on the RRs of the Institute to the extent the qualifications or
eligibility criteria prescribed in the RRs, are contrary or in derogation
thereof. Therefore, in view of the stand of NMC on an affidavit before
this Court, Petitioner is eligible and his case should be considered by
the Selection Committee.
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(C). The Constitution Bench of the Supreme Court in Tamil Nadu
Medical Officers Association and Others v. Union of India and
Others, (2021) 6 SCC 568 , has held that by virtue of Schedule VII
List I Entry 66 of the Constitution of India, the minimum
qualifications for teachers in medical institutions laid down by MCI
will have an overriding effect over any other Rules framed by States
or colleges, to the extent they are at variance with the Regulations of
MCI. In a recent judgement delivered on 24.01.2023 in the case of
Baharul Islam and Others v. Indian Medical Association and
Others, 2023 SCC OnLine SC 79, the Supreme Court has reiterated
that Rules and Regulations framed by MCI, laying down standards for
medical education will hold the field and even the States have no
legislative competence to enact any Rule or Regulation, contrary
thereto.
(D). Admittedly, in the present case the advertisement in question
was issued in the year 2021 and thus Regulations, 2019 will govern
the screening and selection process, wherein the prescribed eligibility
criteria mandates only 03 research publications, with at least 02 as
Associate Professor and further provides that the Author must be
amongst first three or should be the corresponding author. Under
Regulations, 2019, original papers, meta-analysis and even ‘case
series’ published in Journals included in Medline, Citation Index, etc.
can be considered to determine the eligibility. Institute is clearly
bound to follow the mandate and cannot declare the Petitioner
ineligible on the basis of conflicting criteria in its RRs, which are even
otherwise non-statutory.
7. Contentions on behalf of the Institute :-
(A). Institute is a Super-Speciality autonomous Institute and also
Deemed to be University set up by the Government of Delhi. Institute
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aims to provide high standards of medical education and requires
highly trained and skilled faculty of medical and surgical super
speciality. It has a unique structure and the Bye-Laws of the Institute
have been duly approved by the Council of Ministers, GNCTD vide
Cabinet Decision No. 749 dated 07.10.2002. The Bye-Laws empower
the Governing Council to create and abolish posts and appoint faculty
and other staffs as well as lay down the terms and conditions of their
appointment.
(B). RRs of the Institute stipulate higher eligibility criteria on
recommendations of the Academic Council and have been approved
by the Governing Council. Unlike CGHS, the Institute provides higher
recruitment and eligibility criteria, considering it is a Super-Speciality
autonomous body and is required to maintain high standards in field of
medical education. Institute has the power and prerogative to prescribe
qualifications and eligibility conditions for the various posts in the
Institute so long as these are not lower than or contrary to the
Regulations of MCI/NMC. The Institute is a torch bearer model of
excellence in patient care, teaching and training in the field of Liver
and Biliary Diseases and prescribing higher standards of qualifications
for appointment of Professors is with the aim of furthering the
objective of having the best faculty for imparting better education.
(C). Institute advertised various posts of faculty on 31.01.2021-
01.02.2021 in leading National newspapers and received three
applications for the post of Professor (Surgical Hepatology) including
that of the Petitioner. A duly constituted Screening Committee of
Experts screened the applications in the meeting held on 13.04.2021 in
accordance with the RRs. In compliance of the order of this Court
dated 01.02.2021, MCI letter dated 07.12.2019 in respect of the
Petitioner was placed before the Screening Committee. After
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scrutinizing the documents, the Screening Committee observed that
photocopies of all the published articles had not been properly
submitted by the applicants and along with the others, Petitioner was
also given an opportunity to submit the same within 17 days. In
response to the letter, Petitioner submitted copies of all his published
articles, which were reviewed by the Committee on 17.05.2021 and
after careful scrutiny, Committee was of the view that the publications
were not as per the eligibility criteria in the RRs, which prescribed six
publications during the tenure as Additional Professor (original
articles published/accepted: excluding case reports, letters to Editors
and review articles) as first/second/corresponding author. Moreover,
publications submitted by the Petitioner did not satisfy the conditions
stipulated in the Circular dated 03.09.2015 issued by MCI, giving
‘Clarifications on Research Publications’ for teaching faculty in
Medical Colleges/Institutions. For all these reasons, the Screening
Committee came to a conclusion that none of the applicants, including
the Petitioner were eligible for the post of Professor (Surgical
Hepatology) and the applications were rejected.
(D). The allegations levelled by the Petitioner against Respondent
No.2 are baseless and misconceived. Being the Director of the
Institute, he has no role to play in the screening process of the
applications, which were screened by the Screening Committee,
comprising of independent experts in the field, purely on the basis of
advertised criteria provided in the RRs.
(E). NMC was impleaded by the Court and directed to verify
whether the publications of the Petitioner met the essential
qualifications of the post in question. No doubt, NMC has mentioned
in the reply that 09 publications of the Petitioner confirm to
Regulations, 2019, however, details as to which are those 09
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publications are conspicuously missing in the reply. During the course
of hearing, counsel for NMC pointed to 09 publications, which
according to NMC make the Petitioner eligible and as detailed in the
written submissions in a tabular representation are as follows:-
SL. NO. LIST OF PUBLICATIONS YEAR OF
PUBLICATION
1. How do bile duct injuries
sustained during
laparoscopic cholecystectomy
differ from those during open
cholecystectomy-PubMed
2001
3. Suri VS, Benign Signet Ring
Cell_2001
2001
5. Gastric Outlet obstruction in
Carcinoma of the
Gallbladder-PubMed
1999
6. Paraganglionoma of
extrahepatic biliary tract
causing
2000
17. Benign signet ring cell
change with multilayering in
the gallbladder mucosa- a
case report
2001
19. Paraganglionoma of
extrahepatic biliary tract
causing obstructive jaundice
– PubMed
2000
26. Leiomyo Sarcoma 1998
27. 40244 stones in GB 1998
29. Pancreatic Hydatid 1999
As per the RRs, only first/second/corresponding author is
eligible for consideration, which is also the pre-requisite under
Regulations, 2019 stipulating that the author must be amongst first
three or a corresponding author. ‘Corresponding Author’ is an
individual who takes primary responsibility for communication with
the Journal during the manuscript submission, peer-review and
publication process. Having carefully analysed the 09 publications, the
Institute is still of the considered opinion that these are not in
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consonance with the RRs of the Institute, for the post in question.
(F). It is a settled law that having participated in a selection process,
it is not open to a candidate to question the advertisement and/or the
eligibility criteria laid therein. Petitioner has applied against the
advertisement fully aware of the eligibility criteria and cannot at this
stage challenge the advertisement or the RRs criteria therein only
because the ultimate result is not palatable to him. In any case,
Petitioner has not even assailed the RRs in the present writ petition
and on this ground itself the petition deserves to be dismissed.
Reliance is placed on the judgment of the Supreme Court in K.A.
Nagamani v. Indian Airlines and Others, (2009) 5 SCC 515.
8. Submissions on behalf of NMC :-
(A). NMC was impleaded as a party to the petition vide order dated
01.04.2022 and was directed to file an affidavit on whether the
publications of the Petitioner make him eligible for the post of
Professor as well as on the legal issue whether the Institute can
prescribe qualifications/eligibility criteria higher than those prescribed
by MCI/NMC. NMC is a statutory authority created and constituted
under an Act of the Parliament, namely, The National Medical
Commission Act, 2019 (hereinafter referred to as the ‘NMC Act,
2019’). NMC was constituted for development/regulation of all
aspects relating to medical education/profession/institutions in the
country as well as for constituting a Medical Advisory Council to
advise and make recommendations to the Commission. Prime
objective of NMC is to promote qualitative improvement of medical
education in the country at under-graduate and post-graduate levels.
By virtue of Section 61 of NMC Act, 2019, NMC is the successor-in-
interest of MCI and Section 61(2) provides that even after repeal of
the Indian Medical Council Act, 1956 (hereinafter referred to as ‘the
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IMC Act, 1956) educational standards, requirements and provisions of
IMC Act, 1956 shall continue to be in force until new standards are
specified.
(B). Section 33 of IMC Act, 1956, empowered MCI to frame
Regulations for laying down minimum standards of infrastructure,
teaching etc. for conduct of medicine courses including admissions to
MBBS and PG courses in discharge of its statutory obligations
towards maintenance of highest standards in medical education in the
country, with the approval of the Central Government. In this context,
the Supreme Court in Medical Council of India v. State of Karnataka
and Others, (1998) 6 SCC 131, while holding that MCI Regulations
are binding and mandatory further held that all State enactments,
Rules and Regulations framed by Universities etc. in relation to
conduct of medicine courses, to the extent they are inconsistent with
the IMC Act, 1956 and Regulations made thereunder, would be
repugnant by virtue of Article 254 of the Constitution of India since
the IMC Act, 1956 was relatable to Schedule VII List I Entry 66 of the
Constitution. This was reaffirmed by the Constitution Bench of the
Supreme Court in Dr. Preeti Srivastava and Another v. State of M.P.
and Others, (1999) 7 SCC 120 .
(C). By virtue of Notification dated 24.09.2020 published in the
Gazette of India, IMC Act, 1956 stood repealed w.e.f 25.09.2020 and
the Board of Governors stood dissolved. Vide another Notification of
the same date i.e 24.09.2020, Central Government in exercise of
power conferred by Section 1(3) of Act, 2019 notified the said Act to
come into force w.e.f 25.09.2020. Erstwhile MCI under Section 33 of
Act had framed Regulations, 1998 prescribing minimum qualification
and teaching or research experience for teaching appointments in
medical institutions. Under Regulations, 1998, the academic
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qualification required for the post of Professor, Surgical
Gastroenterology is M.Ch. (Surgical Gastroenterology)/M.S.
(Surgery) degree with 2 years special training in Surgical
Gastroenterology and minimum 04 research publications in
indexed/National Journals. Subsequently, vide Circular dated
03.09.2015, clarification was issued by MCI, wherein a List of
Indexing Agencies, types of articles to be considered and criteria for
National/International Journal/authorship/E-journal were provided. By
a subsequent Notification dated 12.02.2020, published in the Official
Gazette on 17.02.2020, Regulations, 2019 were notified amending
Regulations, 1998 as follows :-
Posts Academic
Qualification
Teaching & Research
Experience
Professor/ Addl.
Professor (5 years
of Post Super
Speciality
experience)
A super speciality
post graduate
qualification in
DM/M.Ch./DNB in
the concerned
subject and as per
these Regulations.
(i) Associate Professor in
the subject for 3 years in a
permitted/approved/
recognized medical college/
institution with three
Research publications
(atleast two as Associate
Professor) (only original
papers, meta-analysis,
systematic reviews, and case
series that are published in
journals included in
Pubmed Central, Citation
Sciences, index, Embase,
Medline, index, Citation
Expanded Scopus, Directory
of Open access journals
(DoAJ) will be considered).
The author must be
amongst first three or
should be the
Corresponding author .
(ii) ………….
(iii)…………
(D). NMC has deliberated on the research publications submitted by
the Petitioner and is of the opinion that: (a) requirement of indexing
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was introduced only on 03.09.2015 and would apply prospectively and
not to the research publications of the Petitioner, which are prior
thereto; (b) amended Regulations, 2019 published on 17.02.2020 shall
govern the present selection, initiated pursuant to the advertisement
notified on 31.01.2021-01.02.2021; (c) under Regulation, 2019 only
03 research publications are required and ‘case series’ published in the
journals mentioned therein, can be considered as part of research
publications; and (d) 09 research publications of the Petitioner
including case reports make him eligible for consideration for the post
of Professor.
(E). RRs framed by the Institute are non-statutory and cannot
override Statutory Regulations tracing their source to MCI Act,
1956/NMC Act, 2019 as even State Legislatures do not have the
legislative competence to pass laws which contradict or are in conflict
with these Acts or Regulations framed thereunder. Therefore,
qualifications prescribed under the RRs will have to give way to those
prescribed under Regulations, 2019, whereunder Petitioner is eligible.
Analysis and Findings:-
9. Challenge in the present petition is to the decision of the
Institute communicated by the impugned letter dated 22.05.2021,
whereby Petitioner was informed that he was ineligible for
appointment to the post of Professor (Surgical Hepatology) as he was
not fulfilling the criteria of research publications, laid down in the
RRs of the Institute. While the contention of the Petitioner is that the
Research Publications submitted by the Petitioner are in consonance
with the requirements prescribed under the Regulations, 2019, which
override the RRs of the Institute, the latter being in conflict, the
contention of the Institute is that it is always open to the Institute to
frame RRs and lay down eligibility conditions higher than those
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prescribed by MCI/NMC, as minimum criteria. NMC supports the
stand of the Petitioner in the detailed affidavit filed by it.
10. The first question that arises for consideration before this Court
is whether the Institute is empowered to prescribe an eligibility criteria
pertaining to research publications for the post of Professor (Surgical
Hepatology), which is at variance or in conflict with the minimum
criteria laid down by the MCI/NMC. The second question and which
is inextricably linked is whether the Institute is empowered to
prescribe qualifications ‘higher’ than those prescribed by MCI/NMC
and if the answer is ‘yes’, whether the eligibility criteria of 06
publications, excluding case studies etc. is ‘higher’ or in ‘conflict’
with the criteria under Regulations, 2019.
11. Before proceeding to examine these questions, it would be
relevant to note at the cost of repetition that this is the second round of
litigation between the parties. Petitioner had earlier applied for
appointment to the post of Professor (Surgical Hepatology) in
response to an advertisement issued in 2017. His application was
rejected on the ground that Petitioner did not have the requisite
qualification i.e. M.Ch. in Surgical Gastroenterology or an equivalent
qualification. Case of the Petitioner was that he had qualified M.S.
(General Surgery) and had two years’ experience in a recognized
hospital and since he possessed an equivalent qualification, his
rejection was illegal. When the writ petition being W.P.(C) 1129/2021
was listed before the Court on 01.02.2021, learned Senior Counsel on
behalf of the Institute had, on instructions, submitted that the
Petitioner was at liberty to apply against the fresh advertisement
issued in the meantime on 01.02.2021. Petitioner applied against the
fresh advertisement but his candidature was again rejected on the
ground that he was ineligible.
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12. Reading of the counter affidavit filed by the Institute shows that
two-fold grounds have been taken to support its case that the
Petitioner is ineligible: (a) Petitioner does not meet the criteria of
publications; and (b) he does not possess the M.Ch. degree. However,
during the course of arguments, counsel for the Institute did not press
the objection with regard to M.Ch. degree, perhaps on a realisation
and rightly so that Petitioner possesses an equivalent degree, which
stood fortified by MCI. Even in the advertisement dated 31.01.2021-
01.02.2021, the requirement of M.Ch. (GI Surgery) degree is
alternative to degree in M.S. (Surgery). Relevant part of the
advertisement is extracted hereunder for ready reference :-
Name of the
Post
Essential
Qualification &
Experience
Upper Age Limit Pay Scale
Professor
(Surgical
Hepatology)
1. M. Ch. (HPB
Surgery)/M. Ch. (GI
Surgery)
66 years PB-IV, GP-
12000
OR
MS (Surgery) or
equivalent with 3
years Senior
Residency in the field
of HPB Surgery/
Surgical
Gastroenterology or
equivalent foreign
training.
2. 04 years of
Additional Professor
HPB Surgery
OR
08 years of Associate
professorship in HPB
Surgery
OR
11 years of teaching
experience in HPB
Surgery
3.First author/second
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author/corresponding
author in 06
publications during
the tenure as
Additional Professor
(original articles
published / accepted:
excluding case
reports, letter to
Editors and review
articles)
13. The essential qualifications required under the RRs of the
Institute for the post of Professor (Surgical Hepatology) are as under:-
“(i) M.Ch. (HPB Surgery)/M.Ch (GI Surgery)
OR
MS (Surgery) or equivalent with 3 years Senior Residency in the
field of HPB Surgery/Surgical Gastroenterology or equivalent
foreign training.
(ii) 04 years of Additional Professor HPB Surgery
OR
08 years of Associate professorship in HPB Surgery
OR
11 years of teaching experience in HPB Surgery.
(iii) First author/second author/corresponding author in 06
publications during the tenure as Additional Professor (original
articles published/ accepted : excluding case reports, letter to
Editors and review articles)
……………..”
14. Insofar as publications are concerned, from a reading of the
RRs, it is evident that a candidate is required to have 06 publications
during the tenure as Additional Professor and case reports are
excluded. The 06 publications have to be as
first/second/corresponding author. On the other hand, under
Regulations, 2019, three Research publications (at least two as
Associate Professor) [only original papers, meta-analysis, systematic
reviews, and case series that are published in journals included in
Medline, Pubmed Central, Citation index, Sciences Citation index,
Expanded Embase, Scopus, Directory of Open access journals
(DoAJ)], will be considered. It is further provided that the author must
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be amongst first three or should be the Corresponding author.
15. At this stage, a little background to MCI/NMC will require a
mention. MCI was a statutory authority constituted under the IMC
Act, 1956. It had the onerous responsibility of discharging the duty of
maintenance of highest standards in medical education. In this context,
I may refer to a passage from the judgment of Supreme Court in State
of Kerala v. Kumari T.P. Roshana and Another, (1979) 1 SCC 572,
hereunder:-
“16. The Indian Medical Council Act; 1956 has constituted the
Medical Council of India as an expert body to control the minimum
standards of medical education and to regulate their observance.
Obviously, this high-powered Council has power to prescribe 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.”
16. This position was re-affirmed and re-emphasized by the
Constitution Bench of the Supreme Court in para 57 of the judgment
in Dr. Preeti Srivastava (supra) and I quote:-
“57. In the case of Medical Council of India v. State of Karnataka
a Bench of three Judges of this Court has distinguished the
observations made in Nivedita Jain. It has also disagreed with Ajay
Kumar Singh v. State of Bihar and has come to the conclusion that
the Medical Council regulations have a statutory' force and are
mandatory. The Court "was concerned with admissions to the MBBS
course and the regulations framed by the Indian Medical Council
relating to admission to the MBBS course. The Court took note of
the observations in State of Kerala v. T.P. Roshana (SCC at p.580)
to the effect that under the Indian Medical Council Act, 1956, the
Medical Council of India has been set up as an expert body to
control the minimum standards of medical education and to regulate
their observance. It has implicit power to supervise the
qualifications or eligibility standards for admission into medical
institutions. There is, under the Act an overall vigilance by the
Medical Council to prevent sub-standard entrance qualifications for
medical courses. These observations would apply equally to
postgraduate medical courses. We are in respectful agreement with
this reasoning.”
17. By virtue of Section 33 of the MCI Act, erstwhile MCI was
empowered, with the prior approval of the Central Government, to
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frame Regulations for laying down minimum standards of
infrastructure, teaching, etc. for conduct of medicine courses including
admissions to the MBBS and PG courses. In Medical Council of
India (supra), the Supreme Court held that Regulations of the MCI
are binding and mandatory and it was also held that all State
enactments, Rules and Regulations framed by Universities, etc. in
relation to conduct of medicine courses, to the extent they are
inconsistent with the MCI Act,1956 and Regulations made thereunder,
are repugnant by virtue of Article 254 of the Constitution of India
inasmuch as the MCI Act,1956 is relatable to Schedule VII List I
Entry 66 of the Constitution of India.
18. NMC is also a statutory authority created under the Act of
Parliament, namely, the NMC Act, 2019 and has been constituted for
development/regulation of all aspects relating to medical education,
profession and institutions in the country. Section 61 of the Act
provides that the Commission shall be the successor-in-interest to
MCI and Section 61(2) provides that even after repeal of the MCI Act,
1956 the educational standards and other provisions of the said Act
shall continue to be in force and operate till new standards are
specified under NMC Act, 2019. It is pertinent to reiterate here that
Regulations, 1998 stand amended by Regulations, 2019 and it is on
the latter that the Petitioner relies to establish his eligibility and his
stand is duly supported by NMC.
19. Reverting back, the first question, in my considered view, poses
no challenge and the answer can only be that it is not open to the
Institute to prescribe qualifications/eligibility criteria in variance or
conflict with or in derogation of the qualifications etc. prescribed by
MCI/NMC in their Regulations, 1998 and 2019, respectively. As held
by the Supreme Court even the States do not have the Legislative
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competence to legislate contrary and pass any law which would be in
contradiction to or in direct conflict with MCI Act, 1956 and
Regulations made thereunder, deriving strength from Schedule VII
List I Entry 66 of the Constitution of India and the same analogy
would apply to Regulations made under the NMC Act, 2019.
20. In this context, several judgments have been cited by counsel
for NMC which have been referred and alluded to in the earlier part of
the judgment, including a very recent judgment of the Supreme Court
in the case of Baharul Islam (supra) and which, in my view, squarely
cover the issues arising in the present petition. In Baharul Islam
(supra) , Assam Legislature enacted the Assam Rural Health
Regulatory Authority Act, 2004 on 18.09.2004 to provide for
establishment of a regulatory authority in the State of Assam for
registering Diploma holders in Medicine and Rural Health Care to
regulate their practice in medicine in rural areas as also to regulate the
opening of medical Institutions. An advertisement was published on
23.06.2005, inviting applications from eligible candidates seeking
admissions in the three-year course of Diploma in Medicine and Rural
Health Care in the Institute at Jorhat. The Indian Medical Association,
Assam State Branch, filed a writ petition in the Gauhati High Court
assailing the validity of the Assam Act and the advertisement. The
High Court allowed the writ petition holding the Assam Act to be
unconstitutional and striking the same down. The controversy before
the Supreme Court was with regard to the legislative competence of
the Assam State Legislature to enact the Assam Act in light of Article
246 read with relevant entries in List I and III of the Seventh Schedule
of the Constitution of India. After referring to a plethora of judgments
on the interplay between Entry 66 of List I and Entry 25 of List III, the
Supreme Court held that no State Legislature has the legislative
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competence to pass a law in conflict with the IMC Act, 1956 setting
the standards of medical education. Relevant paras are as follows:-
“66. It is to be noted that insofar as Entry 25 of List III is concerned,
there are dual restrictions which would operate on the legislative
competence of a State Legislature to enact any law under the said
Entry : first is, if such a law is to be made by the State Legislature, it
is always subject to Entries 63, 64, 65 and 66 of List I or the Union
List, in respect of which only the Parliament has the power to enact
a law. The second restriction is with regard to the subject of the
Entry as a whole. If the Parliament has made any law which is
outside the scope of Entries 63, 64, 65 and 66 of List I but within the
scope of Entry 25 of List III, in such a case Article 254 and the
principles of repugnancy would apply if a State Law is in conflict
with such Parliamentary Law.
67. In the instant case the law made by the State Legislature,
namely, the Assam Act is hit by the first of the aforesaid two
restrictions; hence, it is null and void as the Assam Legislature
lacked the legislative competence to enact such a Law.
68. In light of the aforesaid discussion, we are of the considered
view that Rural Health Practitioners enlisted under the Assam Act,
are underqualified to perform functions similar to those performed
by medical practitioners registered in accordance with the Central
Act. In order to be recognised as a practitioner in any branch of
modern scientific medicine, including allopathic medicine, the
qualifications that must mandatorily be obtained are those listed in
the Schedules to the Central Act.
xxx xxx xxx
Conclusion:
85. In the result, we arrive at the following conclusions:
(i) Entry 25 of List III of the Seventh Schedule of the
Constitution of India deals with the subject education which is
in the Concurrent List under which both the Parliament or the
Union Legislature as well as the State Legislatures have
legislative competence to legislate. However, Entry 25 of List III
is subject to, inter alia, Entry 66 of List I which is the Union
List. Entry 66 of List I deals with coordination and
determination of standards in institutions for higher education
or research and scientific and technical institutions. Thus, when
any law is made under Entry 25 of List III by a State
Legislature, the same is always subject to Entry 66 of List I. In
other words, if any law made by the Parliament comes within
the scope of Entry 66 of List I, then the State Legislation would
have to yield to the Parliamentary law.
Thus, where one Entry is made "subject to" another
Entry, it would imply that, out of the scope of the former Entry,
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a field of legislation covered by the latter Entry has been
reserved to be specifically dealt with by the appropriate
legislature.
(ii) In the instant case, it is held that the IMC Act, 1956 is a
legislation made by the Parliament for the purpose of
coordination and determination of standards in medical
education throughout the Country. The said law, along with the
Rules and Regulations made thereunder are for the purpose of
determination of standards of medical education throughout
India. Thus, determination of standards in medical education in
India is as per the IMC Act, 1956 which is a Central Law. This
is in respect of modern medicine or allopathic medicine within
the scope of Entry 66 of List I and not under Entry 25 of List III
of the Seventh Schedule. Therefore, a State Legislature which
passes a law in respect of allopathic medicine or modern
medicine would be subject to the provisions of the IMC Act,
1956 and the Rules and Regulations made thereunder. This
would imply that no State Legislature has the legislative
competence to pass any law which would be contradictory to or
would be in direct conflict with the IMC Act, 1956 and the Rules
and Regulations made thereunder. In other words, the standard
in medical education insofar as modern medicine or allopathy is
concerned, having been set by the IMC Act, 1956 and the Rules
and Regulations made thereunder or by any subsequent Act in
that regard, such as the Medical Council of India Act, 2019, the
State Legislature has no legislative competence to enact a law
which is in conflict with the law setting the standards of medical
education in the context of modern medicine or allopathic
medicine, which has been determined by Parliamentary
Legislation as well as the Rules. In other words, a State
Legislature has no legislative competence to enact a law in
respect of modern medicine or allopathic medicine contrary to
the said standards that have been determined by the Central
Law.
In view of the above conclusion, we hold that decision of
the Gauhati High Court holding that the Assam Act to be null
and void, is just and proper.
However, the Gauhati High Court has held that the State
had no legislative competence to enact the Assam Act in view of
Article 254 of the Constitution on the premise that the IMC Act
and the Rules and Regulations made thereunder were holding
the field and hence, on the basis of the doctrine of occupied
field, the Assam Act was struck down as being repugnant to the
Central Law. In view of the aforesaid conclusion, we are of the
view that the said reasoning is incorrect. It is reiterated that the
IMC Act and the Rules and Regulations made thereunder, which
are all Central legislations, have been enacted having regard to
Entry 66 of List I and would prevail over any State Law made by
virtue of Entry 25 of List III of the Constitution.
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(iii) Hence, in view of the Indian Medical Council Act, 1956 and
the Rules and Regulations made thereunder, the Assam Act,
namely, the Assam Rural Health Regulatory Authority Act,
2004, is declared to be null and void, in view of the Assam
Legislature not having the legislative competence to enact the
said Law.
(iv) Consequently, the subsequent legislation, namely, the Assam
Act of 2015 i.e., the Assam Community Professionals
(Registration and Competency) Act, 2015, enacted pursuant to
the judgment of the Gauhati High Court, is a valid piece of
Legislation as it has removed the basis of the impugned
judgment passed by the Gauhati High Court. The 2015 Act is
also not in conflict with the IMC, Act, 1956. This is because the
Central Act namely, IMC, Act, 1956 does not deal with
Community Health Professionals who would practise as
allopathic practitioners in the manner as they were permitted to
practise under the Assam Act, in rural areas of the State of
Assam. Hence, by a separate legislation the Community Health
Professionals have been permitted to practise as such
professionals. The said legislation of 2015 is not in conflict with
IMC, Act, 1956 and the rules and regulations made thereunder.
Hence, the Act of 2015 is not hit by Entry 66 of List I of the
Constitution and is within the legislative competence of the State
Legislature under the Seventh Schedule of the Constitution.”
21. From a reading of the aforesaid judgments, it is luminously
clear that even a State Legislation will be invalid if it is in conflict
with or in derogation of a Central Legislation i.e. the MCI Act,1956/
NMC Act, 2019 and the Rules/Regulations framed thereunder.
22. In order to resolve the conundrum whether the Institute can
prescribe higher qualifications in the RRs and whether the
publications submitted by the Petitioner make him eligible, Court had
impleaded NMC as a party and directed that an affidavit be filed on
both the aspects. Pursuant to the said order, a detailed affidavit has
been filed by NMC in which it is categorically stated that the RRs of
the Institute have not been framed under Article 309 of the
Constitution and do not have a statutory force and that the Regulations
framed by MCI/NMC shall override the said RRs, in view of the
settled law that even State Legislations cannot override the MCI/NMC
Acts and Regulations framed thereunder. In so far as the publications
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are concerned, it is stated that since the advertisement was issued on
31.01.2021-01.02.2021, the process of selection initiated by the
Institute pursuant thereto shall be governed by Regulations, 2019 and
tested on that anvil, publications submitted by the Petitioner i.e his 09
publications/case reports make him eligible for consideration for
appointment as Professor (Surgical Hepatology). In view of this stand
of NMC, which is in consonance with the Regulations, as brought out
above, this Court accepts the stand of the Petitioner that he is eligible
for the post of Professor (Surgical Hepatology) applying the criteria
laid down in Regulations, 2019, which beyond a scintilla of doubt
shall govern the present selection.
23. There is no doubt on the statement of the Institute that it is a
premier educational institute and has the power to lay down eligibility
criteria for appointment to the posts in the Institute including laying
higher conditions for setting a higher standard. However, the Institute
cannot make Rules which are in conflict with or in derogation of the
qualifications prescribed and recognized by NMC. Clearly, the
conditions prescribed in the RRs are in conflict with the conditions
laid down under Regulations, 2019, both on the number of
publications as also on the inclusion of case studies, as stated by NMC
and thus cannot be an impediment in the way of the Petitioner for
consideration to the post of Professor (Surgical Hepatology), as long
as his publications are in consonance with Regulations, 2019.
Eligibility conditions in the RRs of the Institute cannot be termed as
‘higher’ as sought to be alleged on behalf of the Institute. The
stipulation that case series/reports will not be treated as research
publications has resulted in disqualifying and excluding the Petitioner
from the zone of consideration thereby nullifying the criteria laid
down by NMC under which the Petitioner is admittedly eligible and
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amounts to laying down criteria which is in derogation of Regulations,
2019. In view of this, the argument of the Institute that there is no
challenge to the RRs, is irrelevant and inconsequential. It would be
pertinent to mention here that by a letter dated 07.02.2019 Petitioner
was informed by MCI that as per his academic qualification, teaching
experience and research publications, he was eligible for the post of
Professor in the Department of Surgical Gastroenterology in a medical
college in India and as the letter reflects the same was issued with the
approval of Chairman, Board of Governors, MCI. Relevant part of the
letter is extracted hereunder:-
24. Relevant would it be to mention that a similar controversy arose
before a Co-ordinate Bench of this Court in Chithra N & Others v. All
India Institute of Medical Sciences, 2022 SCC OnLine Del 2076,
where the in-service nursing officers of AIIMS were aggrieved by the
admission notice which had rendered them ineligible from seeking
admission in M.Sc. (Nursing) course for August, 2022 session. The
impugned condition precluded the Petitioners from pursuing Masters
Degree solely on the ground that their qualifying degree B.Sc. (Post
Basic) was acquired through distant learning mode as opposed to
regular mode. The question that arose before the Court was whether
AIIMS was empowered to prescribe its own eligibility criteria which
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had the effect of nullifying/curtailing recognition granted to the said
degree by Indian Nursing Council (INC) which was established under
a Central Act called Indian Nursing Council Act, 1947. The Court,
after due deliberation on the controversy, came to a conclusion that
AIIMS cannot prescribe conditions which would override or disregard
the qualifications recognized by INC.
25. Therefore, this Court finds merit in the contention of the
Petitioner that the Research Publications submitted by the Petitioner
are in consonance with the requirements under Regulations, 2019,
which stand is fortified by NMC and thus the impugned decision of
the Institute, premised solely on its RRs prescribing a criteria contrary
thereto, is illegal. In light of the judgements of the Supreme Court, as
alluded to above and the stand of NMC, this Court holds that
Petitioner fulfils the eligibility criteria for the post of Professor
(Surgical Hepatology) and is entitled to be considered by the Selection
Committee.
26. It is, accordingly, directed that the Institute shall constitute a
Selection Committee and consider the case of the Petitioner on merits
within five weeks from today. Needless to state that if the Petitioner is
recommended for selection, he shall be offered appointment forthwith,
with all consequential benefits, in accordance with law.
27. Writ petition stands allowed in the aforesaid terms.
28. Pending application stands disposed of accordingly.
JYOTI SINGH, J
th
MARCH 29 , 2023/shivam/kks
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