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2016 Supreme(Del) 4047
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA & SUNITA GUPTA, JJ.
FACULTY ASSOCIATION, MAULANA AZAD MEDICAL COLLEGE AND ASSOCIATED HOSPITAL – Petitioner
Versus
UNION OF INDIA & OTHERS – Respondents
Writ Petition (Civil) No. 7049 of 2005
Decided On : 09-11-2016
For the Petitioners: Ms. Shobhana Takiar, Mr. Rahul Sharma, Ms. Palak Singh, Mr. Varun K. Chopra and Mr. Chinmay Bhatt.
For the Respondents: Mr. B.S. Shukla, Mr. Mukul Talwar, Ms. Amita Sahni, Mr. T. Singhdev, Mr. Biakthansangi, Mr. Tarun Verma, Mr. Anurag Mathur, Mrs. Jyoti Singh and Mr. Padma Kumar.
Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-graduate institutions covered by Sub-Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors.
Headnote:
MEDICAL COUNCIL OF INDIA - POST GRADUATE MEDICAL EDUCATION REGULATIONS, 2000 - REGULATION 11.1(D) - VALIDITY - RELEVANCE OF MINIMUM QUALIFICATIONS FOR TEACHERS REGULATIONS, 1998 - RELEVANCE OF ARTICLE 309 OF THE CONSTITUTION OF INDIA - INTERPRETATION OF REGULATION 11.1(D) - EQUATION OF CONSULTANTS/SPECIALISTS WITH PROFESSORS/ASSOCIATE PROFESSORS/ASSISTANT PROFESSORS - PROVISO TO REGULATION 11.1(D) - INTERPRETATION - EXCESSIVE DESIGNATIONS - ISSUE OF VIOLATION OF PROVISO - NOT A SUBJECT MATTER OF THE WRIT PETITION.
Fact of the Case:
The petitioner-Faculty Association of Maulana Azad Medical College and associated hospitals impugned the notification dated 15th March, 2005, as being arbitrary, illegal and beyond the scope of powers and jurisdiction of the Medical Council of India (MCI). The petitioners also prayed that Guru Gobind Singh Indraprastha University, should be restrained from equating non-teaching specialists and consultants at the Safdarjung Hospital and Ram Manohar Lohia Hospital with Professors and Associate Professors as they do not possess the requisite and mandated qualifications prescribed by the Recruitment Rules for the said posts. A consequential prayer is made for setting aside the orders dated 2nd May, 2005 and 31st May, 2005 and directions are sought that the number of teaching posts in the post-graduate institutions should be increased as per norms to meet the required number.
Finding of the Court:
The court held that clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-graduate institutions covered by Sub-Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors. The petitioners are unable to establish and show that clause (d) to Regulation 11.1 is illegal or bad in law. On the other hand, the respondents have been able to show and establish the reason and cause why the aforesaid clause was enacted by the MCI. The object and purpose were to allow and permit post-graduate courses already in existence should not close down and stop pursuant to the promulgation of PGME Regulations, 2000. Clause (d) of Regulation 11.1 of the PGME Regulations, 2000 is not in conflict with the CHS Rules in any manner. The teaching and non-teaching cadres remain distinct and separate. Consultants and Specialists in the non-teaching sub-cadre continue to remain members of the said cadre and are not entitled to occupy posts meant exclusively for the teaching sub-cadre. The PGME Regulations, 2000 and CHS Rules operate in different fields and the equivalence granted for the purpose of the PGME Regulations, 2000 would not affect members of the teaching sub-cadres as it does not amount to transfer or change in sub-cadres. Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 does not postulate one-time exception and there can be subsequent designations as long as there is a shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub-cadres. Designations for the purpose of clause (d) to Regulation 11.1 of the PGME Regulations, 2000 can be only awarded to Consultants and Specialists who fulfil the minimum requirement for imparting post-graduate medical education to the sanctioned annual intake in the respective government institutions/hospitals and cannot exceed the said numbers. Violation of the proviso and the question whether there are excessive designations has not been raised and argued before us. The petitioners have stated that this is not a subject matter of the present writ petition and has been raised in other writ petition pending in the High Court. We have, therefore, not examined the factual matrix and the question whether there has been a violation of the proviso to Regulation 11.1(d) of the PGME Regulations, 2000.
Issues: 1. Repugnancy of the impugned notification vis-a-vis proviso to Article 309 of the Constitution of India and Minimum Qualifications for Teachers Regulations, 1998. 2. Interpretation and the conceptual working of the impugned notification dated 15.03.2005. 3. Validity of all the subsequent office orders issued pursuant to the impugned notification dated 15.03.2005.
Ratio Decidendi: 1. Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 is not repugnant and contrary to law on account of violation of the Minimum Qualification of Teachers Regulations, 1998. 2. Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-graduate institutions covered by Sub-Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors. 3. Clause (d) of Regulation 11.1 of the PGME Regulations, 2000 is not in conflict with the CHS Rules in any manner. 4. Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 does not postulate one-time exception and there can be subsequent designations as long as there is a shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub-cadres. 5. Designations for the purpose of clause (d) to Regulation 11.1 of the PGME Regulations, 2000 can be only awarded to Consultants and Specialists who fulfil the minimum requirement for imparting post-graduate medical education to the sanctioned annual intake in the respective government institutions/hospitals and cannot exceed the said numbers.
Final Decision: The writ petition is disposed of in the aforesaid terms. In the facts of the case, there would be no order as to costs.
SANJIV KHANNA, J.
1. The petitioner-Faculty Association of Maulana Azad Medical College and associated hospitals namely, Lok Nayak Jai Prakash Narayan Hospital, G.B. Pant Hospital, Guru Nanak Eye Centre, Sushruta Trauma Centre, Chacha Nehru Bal Chikitsalaya, Dental College and Hospital and College of Nursing, impugn the notification dated 15th March, 2005, as being arbitrary, illegal and beyond the scope of powers and jurisdiction of the Medical Council of India (MCI, for short), respondent No. 3 herein. The petitioners also pray that Guru Gobind Singh Indraprastha University, respondent No. 5 herein, should be restrained from equating non-teaching specialists and consultants at the Safdarjung Hospital and Ram Manohar Lohia Hospital with Professors and Associate Professors as they do not possess the requisite and mandated qualifications prescribed by the Recruitment Rules for the said posts. A consequential prayer is made for setting aside the orders dated 2nd May, 2005 and 31st May, 2005 and directions are sought that the number of teaching posts in the post-graduate institutions should be increased as per norms to meet the required number.
2. The judgment in the present case was reserved vide order dated 2nd August, 2016. The said order reads as under:-
“Learned counsel for the petitioner has made a statement in writing, on instructions received from the petitioner. The statement reads as under:
“Petitioners will be satisfied if this Hon’ble court examines and pronounces its verdict on:-
1. Repugnancy of the impugned notification vis-a-vis proviso to Article 309 of the Constitution of India and Minimum Qualifications for Teachers Regulations, 1998.
2. Interpretation and the conceptual working of the impugned notification dated 15.03.2005.
3. Validity of all the subsequent office orders issued pursuant to the impugned notification dated 15.03.2005.”
Learned counsel for the petitioner also clarifies that the proviso to Regulation 11(1) (d) and its violation is not the subject matter of the present writ petition. The said statement is also taken on record.
Arguments heard.
Judgment reserved.”
3. The issue before us pertains to the notification dated 15th March, 2005 and whether the same is repugnant and contrary to law on account of violation of the Minimum Qualification of Teachers Regulations, 1998 (MQT 1998 Regulations, for short). The second issue, which arises for consideration, again relates to the interpretation of the notification dated 15th March, 2005 and the validity of the subsequent orders issued pursuant to the notification. As recorded in our order dated 2th August, 2016, counsel for the petitioner has stated and clarified that violation of the proviso to Regulation 11(1)(d) of the Post-Graduate Medical Education Regulations, 2000 (hereinafter referred to as PGME Regulations, 2000) are not the subject matter of the present writ petition.
4. The PGME Regulations, 2000 have been framed under the Indian Medical Council Act, 1956 (henceforth referred to as MC Act, 1956, for short) in exercise of the power conferred by Section 33 read with Section 20 of the said Act.
5. Before we comment on the legal matrix, we would first like to examine and elucidate the facts leading to the present writ petition. The Central Health Service Rules, 1996 (CHS Rules, 1996, for short) framed and notified by the Central Government in exercise of the powers vested under Article 309 of the Constitution, contemplated four sub-cadres of the Central Health Service (CHS), namely, teaching sub-cadre, non-teaching sub-cadre, public health service sub-cadre and general duty Medical Officer sub-cadre. In the present case, we are concerned with the teaching sub-cadre and non-teaching sub-cadre in the Central Health Service. The hierarchy of posts in the teaching sub-cadre is that of Assistant Professor, Associate Professor and Professor. In the non-teaching sub-cadre, the hierarchy is Specialist Grade-II (Junior Scale), Specialist Grade-II (Senior Sca
