IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9-12-2011 CORAM THE HON'BLE MR.JUSTICE N.PAUAL VASANTHAKUMAR W.P.No.19277 of 2011 M.P.Nos.1 & 2 of 2011 1. Dr.B.K.Madhankumar 2. Dr.M.Joshua Daniel Jeyakumar 3. Dr.K.S.Maheswari 4. Dr.R.Arun 5. Dr.R.Jeevapriya ... Petitioners Vs. 1. Union of India, rep.by its Secretary to Government, Ministry of Health & Family Welfare, Nirman Bhavan, Maulana Azad Road, New Delhi – 110 011. 2. Medical Council of India, rep.by its Secretary, Pocket-14, Sector-8, Dwaraka Phase-1, New Delhi – 110 077. 3. State of Tamil Nadu, rep.by its Secretary to Government, Health and Family Welfare (MCAI) Department, Fort St.George, Chennai – 600 009. 4. The Director of Medical Education, Kilpauk, Chennai – 600 010. 5. The Registrar, Tamil Nadu Dr.MGR Medical University, 69, Anna Salai, Guindy, Chennai – 600 032. https://hcservices.ecourts.gov.in/hcservices/ 6. The Academic Officer, Tamil Nadu Dr.MGR Medical University, 69, Anna Salai, Guindy, Chennai – 600 032. 7. The Association of Government Blood Bank, Medical Officers, Tamil Nadu, rep.by its Secretary Dr.P.Ravindran, Blood Bank Medical Officers, Government Kilpauk Medical College Hospital, Kilpauk, Chennai – 600 010. ... Respondents (R-7 impleaded as per order of the Court dated 12.10.2011 in M.P.No.3 of 2011) Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the sixth respondent issued in Notification dated 2.8.2011 and to quash the same as illegal, ultra virus and to direct the 5th and 6th respondents forbearing from in any manner conducting the examination for awarding of parallel Master Degree in M.D. In Immuno Haematology and Blood Transfusion Medicine as one time measure for the post graduate Diploma candidates in Clinical Pathology without following the prescribed modalities including obtaining of prior permission of the Central Government and Medical Council of India in accordance with the Indian Medical Council Act, 1956 and the regulations made therein. For Petitioner : Mr.G.Sankaran For Respondents 1&2 : Mr.V.P.Raman For Respondents 3&4 : Mr.P.Sanjay Gandhi, Addl.Govt. Pleader For Respondents 5&6 : Mr.R.Muthukumaraswamy, Senior Counsel for Mr.K.C.Srinivasan For 7th Respondent : Mr.S.Senthilnathan https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in the writ petition is to issue a writ of certiorarified mandamus calling for the records of the sixth respondent issued in Notification dated 2.8.2011 and to quash the same as illegal, ultra virus and to forbear the 5th and 6th respondents from in any manner conducting the examination for awarding parallel Master Degree in M.D. in Immuno Haematology and Blood Transfusion Medicine as one time measure for the Post Graduate Diploma candidates in Clinical Pathology, without following the prescribed modalities including obtaining of prior permission of the Central Government and Medical Council of India in accordance with the Indian Medical Council Act, 1956 and the regulations made therein. 2. Five Doctors have filed this writ petition, who have passed three years regular MD degree course in Immuno Haematology and Blood Transfusion, challenging the notification issued by the Tamil Nadu Dr.M.G.R. Medical University/5th respondent herein, from conducting the examination called "M.D.Immuno Haematology and Blood Transfusion Examination" for awarding parallel M.D.degree as one time measure to the Post Graduate Diploma holders in Clinical Pathology. 3. The contentions raised by the petitioners are that the action of the 5th respondent University is in violation of Section 10 (A) of the Medical Council of India Act, 1956; that the duration of the course viz., M.D. Immuno Haematology and Blood Transfusion is three years (regular course) and the 5th respondent University commenced the said M.D. Course in the year 2005 stating that the said course is a speciality and prior category course; that the said course is conducted by the 5th respondent University and other colleges affiliated to the 5th respondent University with the permission of Central Government and Medical Council of India; that the petitioners are aspiring for appointment in Government Service in the State of Tamil Nadu based on their regular three year M.D. Qualification; that as per MCI regulations framed under section 33 of the MCI Act, 1956 and as per Section 10(A) no person shall establish a medical college or no medical college or institution shall open new or higher medical course of study including PG degree of study, except with the previous permission of the Central Government; and that, as per the Post Graduate Medical Education Regulations, 2000, if any institution intends to start a Post Graduate Medical Education course or to increase the admission capacity, it shall obtain permission as per section 10A of the Act. 4. It is further contended by the petitioners that the University is very much coming within the definition of 'person' as per the Amendment Act, 1993 and the Diploma in Clinical Pathology is https://hcservices.ecourts.gov.in/hcservices/ a P.G.Diploma course, which is a recognised medical P.G.Diploma course and the Doctors qualified with Diploma in Clinical Pathology are given post as Tutors in Blood Banks attached to Director of Medical Education and also as Blood Bank Officers in Taluk Hospitals. If they complete M.D. in Pathology, they can be promoted to the post of Reader and Professor after completing the requisite period of teaching experience as per the norms fixed by MCI. The action of the 5th respondent in proposal to conduct special examination in October, 2011 as one time measure being violative of the provisions of MCI Act, 1956 and Post Graduate Medical Education Regulations, 2000, petitioners are challenging the same as the said action of the 5th respondent is without jurisdiction, contrary to the statutory provisions and it will dilute the quality of M.D.degree. 5. The 5th respondent University filed counter affidavit contending that in the State of Tamil Nadu, the following four institutions are offering M.D. Transfusion Medical Course: (i) Kilpauk Medical College, Chennai, affiliated to Tamil Nadu Dr.M.G.R.Medical University, Chennai – 2 seats; (ii) Christian Medical College, Vellore, affiliated to Tamil Nadu Dr.M.G.R.Medical University, Chennai – 3 seats; (iii) Sri Ramachandra Medical College and Research Institute, Chennai, Deemed University – 2 seats; and (iv) Vinayaga Mission Kirubanandha Variar Medical University, Salem, Deemed University – 2 seats. Thus only nine seats are available in the State of Tamil Nadu for the course of M.D. Transfusion Medicine. The Diploma holders in Clinical Pathology have approached the University for awarding M.D. Degree, in public interest and to improve the faculty members in the field of Blood Transfusion Medicine to meet the contingency, as there are lack of M.D. Transfusion Medicine candidates. The University, as per Section 29(3) of the Tamil Nadu Dr.M.G.R. Medical University Act, 1987, is empowered to consider the said request and the Board of studies in P.G.Clinical course held on 27.4.2011 considered the representation of the Diploma holders and resolved to permit them to appear for M.D.Immuno Haematology and Blood Transfusion Examination as a one time measure on condition that the Clinical Pathology qualified candidates must have three years of teaching experience in Government/Private Medical colleges and Blood Bank Officers should have five years experience in Blood Banks attached to Government Teaching Institutions. 6. It is further stated that the above resolution of the Board of Studies was approved by the Standing Academic Board on 14.6.2011 https://hcservices.ecourts.gov.in/hcservices/ and Resolution No.30 was passed in 204th meeting of the Governing Council on 12.7.2011. Based on the said resolution, notification was uploaded in the website of the University on 2.8.2011 informing about the conduct of M.D.examination. It is also the contention of the University that the University having been created under the Act, viz., The Tamil Nadu Dr.M.G.R.Medical University Act, 1987, has got every power under section 3 of the Indian Medical Degrees Act to confer degrees/diplomas and certificates. The proposal of the University is for one time measure and only 22 persons, who are members of the 7th respondent Association can appear for the examination and the MCI will be approached for accepting the examination conducted as equivalent to M.D. Degree, so that the candidates who successfully complete the examination will be treated as eligible candidates for appointment in teaching institutions. 7. The Medical Council of India, 2nd respondent herein has filed counter affidavit contending that the proposed decision of the 5th respondent University is contrary to section 10A of the MCI Act, 1956 and under section 10B of the Act any medical degree, which is obtained from the recognised/approved institution in terms of Section 10A alone will be valid and in effect the Medical Council of India is supporting the case of the petitioners. 8. The 7th respondent filed counter affidavit supporting the case of the University, stating that the petitioners have no locus standi to challenge the order of the University as they are not willing to serve the poor people and also not permitting others in serving the poor, who are approaching the Government Hospitals for treatment. The object of the impugned notification is just to conduct examination as a screening examination and the University will sponsor the same to the second respondent/MCI for conferring equivalent degree like that of M.D. i.e., only for the purpose of appointment as faculty in the Department of Immuno Haematology and Blood Transfusion medicine. It is also stated that in Physical Medicine the second respondent/MCI granted equivalence of a similar examination conducted by the 5th respondent University only for the purpose of appointment of faculty members and prayed for dismissal of the writ petition. 9. Mr.G.Sankaran, learned counsel for the petitioners submitted that the 5th respondent University is not empowered to conduct examination for M.D. Immuno Haematology and Blood Transfusion Medicine as the members of the 7th respondent Association have not underwent the three years course of study (M.D.) as prescribed under the MCI Regulations, in any approved institution, as mandated under section 10(A) of the MCI Act, 1956. The learned counsel also https://hcservices.ecourts.gov.in/hcservices/ submitted that the only reason stated by the University and contended by the 7th respondent is that there is shortage of qualified candidates for manning the faculty to conduct M.D. Transfusion Medicine Course in Medical Colleges is unsustainable as the MCI regulation viz., "Minimum Qualification for Teachers in Medical Institutions Regulation 1998" the qualification prescribed for the post of Professor in respect of Immuno Haematology and Blood Transfusion Medicine as 'M.D. Immunology' or 'M.D. Immuno Haematology and Blood Transfusion', or 'M.D. Pathology or Bacteriology or Immuno Haematology' with two years teaching experience of special training in the department of Immuno Haematology and Blood Transfusion Medicine. The learned counsel also submitted that large number of candidates with M.D. Pathology are available for appointment as teaching faculty members in the department of Transfusion Medicine. 10. Learned counsel further submitted that in the institutions which are now conducting M.D. Course, viz., M.D. Transfusion Medicine, most of the faculty members are qualified either in M.D. Pathology or Bacteriology or Micro Biology. Thus, there is no necessity to conduct one time M.D. examination for Diploma Holders for fulfilling the teaching faculty requirement. The learned counsel further submitted that the ratification given by the MCI for Physical Medicine on an earlier occasion cannot be taken as a ground to justify the impugned special examination as no one has challenged the conduct of the said examination as well as the ratification given by the MCI. The learned counsel further argued that even in the resolution passed, a dissent was recorded by the Finance Member stating that if the said proposal is accepted, all other P.G.Diploma holders will come for this favour. Other members also opposed the resolution and only on the basis of the assurance given by the Vice- Chancellor to obtain necessary approval from the MCI, the resolution was passed. The learned counsel therefore submitted that if the 5th respondent University is allowed to conduct M.D.examination to Diploma Holders even as one time measure, the same will be in violation of the statutory regulations framed by the Medical Council of India and also against the provisions of the MCI Act, 1956. Insofar as the allegation regarding the locus standi of the petitioner, the learned counsel submitted that all the five petitioners are awaiting for government appointment based on their M.D. Qualification and they have got every locus standi to challenge the decision of the University and if the University is permitted to conduct the examination their right to get appointment based on their qualification will be very much affected. The learned counsel also cited several judgments in support of his contentions. https://hcservices.ecourts.gov.in/hcservices/ 11. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the University submitted that even though in the counter affidavit the action of the University is justified on several grounds, even assuming that the University is not empowered to award degrees without the permission of the MCI or the courses being conducted in an unapproved institution of Central Government, the attempt now made by the University is only to conduct screening test to assess the merits of the DCP Diploma Holders to declare them as eligible to be appointed as faculty members and the eligibility can be decided by MCI as it was verified in Physical Medicine and therefore the University may be allowed to conduct the examination so as to enable it to approach the MCI for getting equivalence certificate to passed candidates and the Medical Council of India is competent to decide the equivalence of qualification as per the Regulations framed in the year 1998 called "Minimum Qualifications for Teachers in Medical Education Regulation, 1998". 12. Mr.V.P.Raman, learned Standing Counsel for Medical Council of India on the other hand reiterated the contentions raised in the counter affidavit and submitted that the University cannot conduct the special examination to any candidate, who have not attended three years M.D. course in an approved institution. The learned counsel further submitted that section 10A and 10B of the MCI Act, 1956 should be read together and the University is not entitled to conduct special examination for the members of the 7th respondent Association. The learned Counsel also submitted that 1998 Regulation empowers the MCI to determine equivalent qualification for the purpose of appointment of teachers in medical institutions, provided the qualifications which are obtained by candidates through recognised colleges or medical institutions, which commenced the course/courses in terms of Section 10A of the Medical Council of India Act, 1956. The learned counsel further submitted that in any event the impugned decision taken by the Tamil Nadu Dr.M.G.R. Medical University is not valid as the University is proposing to conduct M.D. examination to candidates, who have not attended the three years M.D. course through approved medical colleges or medical institutions. 13. Mr.S.Senthilnathan, learned counsel appearing for the 7th respondent submitted that the members of the petitioner Association are only 22 in number and they have passed DCP and are serving in the Government Colleges/Hospitals and they are having rich experience and the University having noticed the non-availability of eligible candidates for appointment as faculty members in M.D. Immunology department, has decided to conduct one time examination and the same will serve public interest. The learned counsel also submitted that https://hcservices.ecourts.gov.in/hcservices/ if equivalent certificate is issued by the MCI, the same can be made applicable only for the purpose of appointment as faculty members in Medical Colleges/Institutions and need not be for any other purpose. Hence the decision of the 5th respondent University need not be interfered. 14. I have considered the rival submissions made by the learned counsel for petitioners as well as the learned Senior Counsel for respondents 5 and 6 and other learned counsels for the respective respondents. 15. The point arises for consideration in this writ petition is whether the notification issued by the Dr.M.G.R. Medical University in its notification dated 2.8.2011 proposing to conduct M.D. examinations as one time measure to 22 DCP holders is legal and valid ? 16. The notification dated 2.8.2011 issued by the 5th respondent University is extracted hereunder: "THE TAMIL NADU DR.M.G.R.MEDICAL UNIVERSITY, CHENNAI NOTIFICATION In the 41st meeting of the Standing Academic Board held on 14.6.2011, it has been approved that "as a one time measure for the teaching faculties of the Department of Blood Transfusion Medicine and the Blood Bank Medical Officers of Government Medical Colleges, who has possessed Diploma in Clinical Pathology qualification be permitted to appear for MD Immuno Haematology & Blood Transfusion Examination of this University in October, 2011 with the following conditions: 1. Teaching faculties with Diploma in Clinical Pathology Qualification should have three years of teaching experience in Government/private Medical Colleges. 2. Blood Bank Officers should have five years experience in Blood Banks attached to Government Teaching Institutions. The candidates those who have passed in Diploma in Clinical Pathology Qualification in the Tamil Nadu Dr.M.G.R.Medical University, https://hcservices.ecourts.gov.in/hcservices/ Chennai and other Medical Universities has to get Eligibility Certificate from this University by remitting a sum of Rs.1,600/- for the issue of Eligibility Certificate. The candidate has to produce the following documents in original & one set of xerox copies for the issue of Eligibility Certificate. a) Diploma in Clinical Pathology Degree Certificate. b) Migration Certificate. c) Medical Council Registration Certificate. d) Service/Experience Certificate from the Head of Institution in which the candidate is at present working. The University will start for the issue of Eligibility Certificate from 16th August, 2011 to 22nd August, 2011. The Registration of candidates for M.D.Immuno Haematology & Blood Transfusion course (one time measure) will be done for two days (viz.) 29th & 30th August, 2011 in the Examination Wing of this University. An amount of Rs.6,450/- is payable as Registration fee. Candidate has to remit a sum of Rs.1,600/- towards the cost of application and Eligibility certificate fee and Rs.6,450/- towards Registration fee through online RTGS/NEFT A/c.666 Indian Overseas Bank of the IOB challan to be paid at the Tamil Nadu Dr.M.G.R.Medical University Premises. No Demand Draft /Bankers Cheque will be accepted for the above amount. The syllabus, pattern of Examination, scheme of Clinical/ Practical and viva-voce examination of MD Immuno Haematology & Blood Transfusion degree course is also available in the website of this University ( www.tnmgrmu.ac.in ). https://hcservices.ecourts.gov.in/hcservices/ The schedule of University Examination for the MD Immuno Haematology & Blood Transfusion degree course is as follows: a) Date of commencement of -17.10.2011 MD Immuno Haematology & Blood Transfusion Examination b) Last date for submission-05.09.2011 of Exam Application c) Last date for submission-30.11.2011 of Dissertation to this University Sd/-xxxxxxxxxxx ACADEMIC OFFICER (FAC) Dt.2.8.2011" On a perusal of the impugned notification dated 2.8.2011 it is evident that the University has taken the decision to conduct special examination for M.D. Immuno Haematology and Blood Transfusion as one time measure to Diploma in Clinical Pathology, PG Diploma Holders, who are serving in Government Medical Colleges in order to appoint teaching faculties in the department of Blood Transfusion Medicine in Government Medical Colleges and as Blood Bank Medical Officers in Government Medical Colleges. Only condition imposed is, the candidates must possess three years teaching experience in Government or private Medical Colleges or five years experience in Blood Banks attached to Government Teaching Institutions. 17. The Medical Council of India has prescribed qualifications through regulation called, "Minimum Qualification for Appointment of Teachers in the Medical Institutions Regulations, 1998". The qualifications for appointment as teachers in various medical college or institution imparting Under Graduate and Post Graduate education are stated in Schedule-I and Schedule-II. The qualification prescribed for the post of Professor, Reader/Associate Professor, Assistant Professor/Lecturer in the department of Immuno Haematology and Blood Transfusion are mentioned in Table-I of Annexure-I, which reads as follows: (A) Professor D.M.(Immunology)/ (i) As Associate Professor M.D.(Medicine) or in the subject concerned M.D.(Pathology) or for three years in the M.D.(Microbiology)or recognised medical college. https://hcservices.ecourts.gov.in/hcservices/ M.D.(Paediatrics) with two years (ii) Minimum of four special training in research publications in Immunology. Indexed/national journals. (B) Reader/ - do - (i) As Assistant Professor Associate in the concerned subject Professor for two years in the recognised medical college. (ii)Minimum of two research publications in indexed/ national journals. (C) Assistant - do - (i) Requisite recognised specialisation qualification in the subject. (ii) Three years teaching experience in Immunology in a recognised Medical College as Resident/ Registrar/Demonsrator/Tutor. (D) Tutor/ M.B.B.S. Resident/ Registrar/ Demonstrator From the above qualifications prescribed, mentioned above it is evident that M.D.Immuno Haematology and Blood Trsnsfusion is not the only qualification prescribed for the post of Assistant Professor/Lecturer, Reader/Associate Professor, and Professor in the department of Immuno Haematology and Blood Transfusion. It is not the case of respondents 5 to 7 that number of candidates who have passed M.D.Pathology or Bacteriology with or without experience are not available and most of the faculty members in the existing colleges are possessing M.D.Pathology. Therefore there is no dearth of qualified candidates for appointment of faculty members in the department of Immuno Haematology and Blood Transfusion as contended by the University and 7th respondent Association either for the post of Assistant Professor/Lecturer or for the post of Reader/Associate Professor or for the post of Professor. The said aspect was not considered by the University before taking the impugned decision. https://hcservices.ecourts.gov.in/hcservices/ 18. In Schedule-I of the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 it is stated as follows: "SCHEDULE – I Every appointing authority before making an appointment to a teaching post in medical college or institution shall observe the following norms: 1. All Medical teachers must possess a basic University or equivalent qualification included in any one of the Schedules to the Indian Medical Council Act, 1956 (102 of 1956). They must also be registered in a State Medical Register or Indian Medical Register. 1A. The maximum age limit upto which a person can be appointed or granted extension or re-employed in service against the posts of Teachers or Dean or Principal or Director, as the case may be, which are required to be filled up as per the norms of the Medical Council of India in any Medical College or Teaching Institution for imparting Graduate and Post- Graduate medical education, shall be 65 years. 2. In the departments of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non- medical teachers may be appointed to the extent of 30% of the total number of the posts in the department. A non-medical approved medical M.Sc. qualification shall be a sufficient qualification for appointment as Lecturer in the subject concerned but for promotion to higher teaching post a candidate must possess the Ph.D. degree in the subject. The Heads of these departments must possess recognized basic university medical degree qualification or equivalent qualification. However, in the department of Biochemistry, non-medical teachers may be appointed to the extent of 50% of the total number of posts in the department. In case of the paucity of teachers in non- clinical departments relaxation upto the Head of the Department may be given by the appointing authority to the non-medical persons if suitable medical teacher in the particular non-clinical speciality is not available for the said appointment. However, such relaxation will be made only with the prior approval of the Medical Council of India. A non-medial person cannot be appointed as Director or Principal or Dean https://hcservices.ecourts.gov.in/hcservices/ or Medical Superintendent. In the departments of Community Medicine and Pharmacology, Lecturers in Statistics and Pharmacological Chemistry shall possess M.Sc. qualification in that particular subject from a recognized University. 3. Medical teachers in all Medical Colleges except the Tutors, Residents, Registrars and Demonstrators must possess the requisite recognized Postgraduate Medical qualification in their respective subject. Dean / Principal / Director of Medical college/institution, who is head of the institute and the Medical Superintendent who is head of the affiliated teaching hospital can be incharge of a Unit but cannot be HOD in the medical college/institution. However, they can teach and practice in the Department concerned. 4. The appointing authority may consider the holders of equivalent postgraduate qualification, which may be approved by the Medical Council of India from time to time, to have the requisite recognised qualification in the subject concerned. 5. The Medical Council of India shall determine equivalent qualification referred to in these regulations. 6. The teachers in a medical college or institution having a total of eight years. teaching experience out of