IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION NOS.16189 TO 16193 OF 2011 AND CONNECTED MPS. 1. Dr.M.RAMESH 2. Dr.P.GULABKUMAR CHHAJER 3. Dr.S.SANJITHA 4. Dr.P.KALAIVANI 5. Dr.M.PRANESHKMAR ... Petitioners in W.P.No. 16189 of 2011 1. Dr.A.MAHABOOBKHAN 2. Dr.S.KATHIRVEL 3. Dr.E.PRIYADARSHINI 4. DR.R.ANNALAKSHMI 5. DR.P.DEVARAJAN ... Petitioners in W.P.No. 16190 of 2011 1. DR.R.SHANKARANANDH 2. DR.K.THANUSHKODI 3. DR.S.KOMALAVALLI 4. DR.K.SUDHA 5. DR.R.MOHANSUNDARAM ... Petitioners in W.P.No. 16191 of 2011 1. DR.P.MANIKANDAN 2. DR.S.ANBUMALAR 3. DR.N.NARENDRAN 4. DR.V.SUDHAKAR 5. DR.S.VIJAYALAKSHMI ... Petitioners in W.P.No. 16192 of 2011 1. Dr.A.DHAYALASUNDARAM 2. Dr.R.S.AARATHHI DHEVI 3. Dr.P.SAMPATHKUMAR 4. Dr.R.ADHITHYAN 5. DR.M.P.BALAN ... Petitioners in W.P.No. 16193 of 2011 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. https://hcservices.ecourts.gov.in/hcservices/ 2. MEDICAL COUNCIL OF INDIA REP. BY ITS SECRETARY AIWAN-E-GALIB MARG KOTIA ROAD OPP. MATA SUNDARY COLLEGE FOR WOMEN NEW DELHI – 110 002. 3. STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE (MCA 1) DEPARTMENT FORT ST. GEORGE CHENNAI – 600 009. 4. THE TAMIL NADU DR. M.G.R.MEDICAL UNIVERSITY NO.69, ANNA SALAI GUINDY, CHENNAI – 600 032. ... Respondents in all the WPs. Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of Writs of Declaration declaring Regulation for PG Diploma in Health Sciences of the year 2011-2012 commenced by the fourth respondent as ultra vires to the Constitution of India and illegal and contrary to the provisions of the Indian Medical Council Act, 1956. For Petitioners : Mr.K.M.Vijayan Senior Counsel for M/s.K.M.Vijayan Associates For Respondent No.1 : Mr.N.Mariappan Central Government Standing Counsel For Respondent No.2 : Mr.V.P.Raman For Respondent No.3 : Mr.P.Sanjai Gandhi, AGP For Respondent No.4 : Mr.Kalyanasundaram Senior Counsel for Mr.K.C.Srinivasan COMMON ORDER These writ petitions are filed praying to issue Writs of declaration to declare the Regulation for Post Graduate Diploma in Health Sciences of the year 2011-2012 commenced by the fourth respondent as ultra vires to the Constitution of India and illegal and contrary to the provisions of the Indian Medical Council Act, 1956. https://hcservices.ecourts.gov.in/hcservices/ 2. Brief facts necessary for disposal of these writ petitions are as follows: All the petitioners (25) in these writ petitions are Post Graduate students in Medicine and are currently undergoing M.D.R.D. (Radio Diagnosis) and Diploma course DMRD in Medical Colleges in Tamil Nadu in the approved seats of the Medical Council of India. The Tamil Nadu Dr.M.G.R.Medical University proposed to introduce/commence 11 P.G.Diploma courses in Medical Sciences without any approval from the Central Government and Medical Council of India, namely, 1. HIV Medicine One Year 2. Occupational Health One Year 3. Palliative Medicine One Year 4. Clinical Immunology One Year 5. Medical Genetics Two Years 6. Critical Care in Medicine Two Years 7. Family Medicine-Distance Education Two Years 8. Medical Imaging Two Years 9. Diagnostic Ultrasound Two Years 10. Clinical Laboratory Medicine Two Years 11. Clinical Diabetology Two Years 3. According to the petitioners, the above said courses are part of recognized courses approved by the Medical Council of India/Central Government, which are being conducted through different colleges and examinations are conducted by the fourth respondent- University. For instance, the courses Medical Imaging and Diagnostic Ultrasound are part of M.D.(Radio Diagnosis) and also the course, namely, Diploma in Medical Radio Diagnosis. The fourth respondent splitted and carved out the syllabus framed by the Medical Council of India recognized courses and introducing the above new courses without any approval/recognition from the Medical Council of India or Central Government. The petitioners being students of approved courses are prejudiced and having aggrieved against the illegal introduction of new P.G.Diploma courses in Medical Sciences have filed these writ petitions with the above said prayer. 4. The action of the fourth respondent in allowing above said 11 courses in certain institutions to admit students is in effect encouraging private centres to conduct courses in competition to the students, who are admitted to the approved courses by the Medical Council of India, for which, common entrance examination is conducted and seats are filled up on the basis of merit alone. In the proposed P.G.Diploma Courses in Medical Sciences, the choice of admission is left to the institutions/centres, which is in effect commercialisation of medical education. The private hospitals and institutions are permitted to open education centres to run the above courses and the same is in contravention of Section 10A of the https://hcservices.ecourts.gov.in/hcservices/ Medical Council of India Act, 1956 (hereinafter called as the "Medical Council of India Act, 1956"), which prohibits any person including the University to open a new course without previous permission of the Central Government or the recommendations of the Medical Council of India. Section 10A Explanation 1 defines, a "person", which includes University. The action of the fourth respondent in permitting to conduct the said courses independently without prior permission of Central Government is contrary to Section 11(2) of the Medical Council of India Act, 1956. The Medical Council of India being the sole authority to frame Regulations and Guidelines in respect of standards and conduct of medical education created by an Act of Parliament cannot be by-passed by creating parallel P.G.Diploma/Certificate courses in the streams already conducted by the Medical Council of India. The courses offered by the Regulation being identical of the courses within the schedule of recognized qualification of the Medical Council of India, which is virtually an act to create duplicate unrecognised courses without approval of the Central Government as well as the Medical Council of India and students to be admitted will not get the P.G.Diploma recognised by the Medical Council of India. 5. The action of the fourth respondent is in violation of Section 3 of the Indian Medical Degrees Act, 1916, which prohibits authorities other than those specified by the statute to confer, grant or issue degree, diploma license, certificate or other document as qualified in Medical Science. The fourth respondent has no power to make law in respect of the field occupied to the Central Government as per Entry 66 of List 1 of the 7th Schedule of the Constitution of India. 6. The fourth respondent-University has filed a common counter affidavit opposing the prayer contending that in order to improve the skills of Under-Graduate candidates, who have qualified in M.B.B.S., Degree, the University has decided to start P.G.Diploma in Medical Sciences from the academic year 2011-2012 and the said decision was taken to meet the needs of the community and society at large. The P.G.Diploma courses are designed as a comprehensive package, the candidates get exposure to the various abstract disciplines with clinical skills. The diploma courses can cater to the various sectors of medicine, which does not have a graduate degree from the recognized bodies. 7. The fourth respondent-University constituted an Expert Committee to start One/Two Years Post Graduate courses under Health Sciences and also to formulate the Regulation, Syllabi and curriculum for the said courses. The Medical Council of India is conducting only P.G.Degree and some diploma courses and it is not conducting parallel P.G.Diploma course proposed to be conducted by the University. The question of carving the syllabus from the recognized courses of Medical Council of India will not arise as separate https://hcservices.ecourts.gov.in/hcservices/ syllabus is prescribed. The agenda for the commencement of the courses was placed before the 202nd Meeting was held on 17.3.2011 and a decision was taken to start the course of One and Two years duration on the P.G.Diploma level, namely, 1. HIV Medicine One Year 2. Occupational Health One Year 3. Palliative Medicine One Year 4. Medical Genetics Two Years 5. Immunology Two Years 6. Critical Care in Medicine Two Years 8. It is also contended in the counter affidavit that the Standing Academic Board has got power to advise the Governing Council on the promotion of research in the University and to suggest measures for revisions and innovations in academic and research programmes. The Standing Academic Board in its 41st meeting held on 14.6.2011 resolved to start P.G. Diploma courses only in specialities, in which, no courses are available and the said courses shall be named as P.G.Diploma in Medical Sciences and an Expert Committee was constituted on 16.6.2011, which also examined the matter regarding the syllabus and name of the course and the said suggestion was also approved by the Governing Council in its 204th meeting held on 12.7.2011 and Resolution No.30 was passed to approve the Resolution of the 41st meeting of the Standing Academic Board. It is further stated that most of the Post Graduate Degree holders are not willing to serve in rural areas and only M.B.B.S. qualified Doctors are available in rural areas and for helping the Under Graduate Doctors to improve their clinical and practical knowledge, the said courses are proposed to be commenced. The contribution of private colleges is also very important, especially, in the medical field. Hence, the University has decided to start the courses in private institutions as well as in one Government institution. The University has drawn up a detailed list of infrastructure as prescribed by the Medical Council of India. The number of seats in each course has been restricted to 2-5. At present, 11 institutions including one Government institution have approached the University to grant approval to commence the said courses. The Tamil Nadu Dr.M.G.R.Medical University Chennai, Act, 1987 empowers to confer degrees/diplomas and the institutions other than teaching institution are to be treated as approved institutions and therefore there is no legal impediment to start the courses by the said institutions. The P.G.Diploma Courses in Medical Science likely to be commenced by the approved institutions are not coming under Schedule 1 of the Medical Council of India Act,1956 and the said courses are not parallel courses conducted by the Medical Council of India. The other universities such as Annamalai University, Alagappa University, Indira Gandhi Open University are conducting P.G.Diploma courses in their respective universities under Distance Education Mode. The question of getting permission from the Central Government or https://hcservices.ecourts.gov.in/hcservices/ recognition from the Medical Council of India is not necessary as the persons, who are going to get P.G.Diplomas in Medical Sciences are not going to enrol in any of the State Medical Council or Central Council and there is no justification for the petitioners numbering 25 to challenge the action of the University in these writ petitions. 9. The Medical Council of India has filed a separate counter affidavit contending that the Medical Council of India being a statutory authority created and constituted by the Central Government under the Indian Medical Council Act, 1956, is the competent authority for recommending the Central Government for granting prior permission for establishing any Medical College or starting any higher course of study or for increase of intake in any college/institution. 10. Section 10A of the Medical Council of India Act, 1956 is applicable including to Universities and also for any course or training including diploma courses. Any course started by any Medical College or Institution in contravention of the statutory scheme of the Medical Council of India would result in denial of recognition of the medical qualification. The standard of medical education and its co-ordination is occupied by the Medical Council of India Act, 1956 and the regulations framed thereunder and the same will prevail over all other enactments as per Section 10A of the Medical Council of India Act, 1956. Stating the said reasons, the Medical Council of India has prayed for declaring the Regulation issued by the fourth respondent as illegal, which in effect in supporting the case of the petitioners. 11. Mr.K.M.Vijayan, learned Senior Counsel for the petitioners submitted that the fourth respondent-University is proposing to commence 11 Diploma Courses without prior permission of the Central Government, which is bound to be obtained by any institution to conduct course/courses under Section 10A of the Medical Council of India Act, 1956 as amended by Act 31 of 1993, which came into force from 27.8.1992. The learned Senior Counsel also submitted that even the University cannot conduct any course within its campus as a 'person' mentioned in Section 10A (1)(a), gives a meaning in Explanation 1 as "person includes any University or a trust but does not include the Central Government". The learned Senior Counsel further submitted that an attempt was made earlier by the State Government to conduct Certified Diploma Course in Diabetology by distance mode (Six Months Course) through G.O.(D) No.572, Health and Family Welfare (MCA1) Department, dated 14.5.2008 in 14 Government Medical Colleges with an intake students of 75 each of 750 in Madras Medical College, Chennai and Kilpauk Medical College, Chennai and 50 each in other Government Medical Colleges. The said Government Order was challenged before this Court by four Doctors in W.P.No.18829 of 2008 and the Division Bench of this Court considering the prohibition imposed under Section 10A of the Medical Council of https://hcservices.ecourts.gov.in/hcservices/ India Act, 1956 set aside the Government Order holding that any course in the medical field can be commenced only with prior permission from the Central Government as per Section 10A of the Medical Council of India Act, 1956 as the field is completely occupied in Entry 66 of List 1 and the State Government has no power to commence any course and if the same is permitted, it will be granting permission to introduce parallel course, which is not in compliance with the laws made by the Parliament. It was further ordered that even the persons, who have undergone the Certified Course are not entitled to get any Certificate, taking note of the incompetency of the State Government to start such Certified Course in Government Medical Colleges and the said decision is reported in 2008 (6) CTC 568 (Dr.V.Balaji vs. Union of India). 12. The learned Senior Counsel for the petitioners also submitted that unlike the All India Council for Technical Education Act, 1987, the Medical Council of India Act, 1956 is very specific which prohibits commencement of any course including universities without prior permission from the Central Government. Therefore, the judgment rendered by the Honourable Supreme Court in the decision reported in 2001 (8) SCC 676 (Bharathidasan University and Another vs. All India Council for Technical Education and Others) is distinguishable and the same cannot be relied on by the fourth respondent to justify the issue raised in these writ petitions. The learned Senior Counsel also cited other judgments in support of his arguments. 13. Mr.M.Kalayanasundaram, learned Senior Counsel for the fourth respondent submitted that the Tamil Nadu Dr.M.G.R.Medical University Act, 1987 was enacted to establish the fourth respondent- University and the University has already been included in the list of approved universities in the schedule of the Medical Council of India. Section 4 of the said Act mentions about the objects of the university, which includes providing instruction and training in such branches of learning in the field of Medical Science; to institute degrees, diplomas and other academic distinctions; to organise advanced studies and health programme from time to time, etc. 14. Section 5 of the said Act empowers the University to hold examinations and to confer degrees, diplomas and other academic distinctions on any person, who has pursued an approved course of study or training in a college or University; to establish, maintain and manage institutes of research, University colleges, departments to carry out the objects of the University and by virtue of the said powers, the University is competent to authorise institutions to conduct P.G.Diploma in Medical Sciences and the said courses can be offered to the Medical Graduates i.e. who have passed M.B.B.S.Degree, for which, the Medical Council of India has already granted approval and the P.G.Diploma Certificates to be issued need not be approved by the Medical Council of India and the candidates passing out can https://hcservices.ecourts.gov.in/hcservices/ suffix the said Diploma along with their degree qualification. 15. Learned Senior Counsel for the fourth respondent-University also submitted that the academic board is competent to decide about any issue including granting of permission to conduct P.G.Diploma Courses in Medical Sciences by any institution and Section 44 of the said Act clearly states that the Regulation shall be placed before the Governing Council for information and the said procedure having been followed proposing to commence courses in various institutions including two Medical Colleges are well within the powers of the fourth respondent. The learned Senior Counsel further submitted that the courses now proposed to be conducted are not parallel courses conducted by the Medical Council of India and the University is conferred with the power by the State Government, which is competent to enact under Entry 26 of List 3 and therefore, there is no repugnancy with the Central Act, Medical Council of India Act. Learned Senior Counsel argued that the decision cited by the learned Senior Counsel for the petitioners, i.e., 2008 (6) CTC 568 (Dr.V.Balaji vs. Union of India) cannot be applied to the facts of this case, contending that in this case permission was granted by the university and not by Government. Learned Senior Counsel also submitted that some other universities are conducting courses without the approval of the Central Government or Medical Council of India and no action is taken by the Central Government or Medical Council of India against the said universities. 16. Mr.V.P.Raman, learned counsel for the second respondent, relying on the counter affidavit filed, submitted that the fourth respondent-University has no power or authority to grant permission to any institution to offer P.G.Diploma courses, which are not approved by the Central Government or the Medical Council of India. Section 10A of the Medical Council of India Act, 1956 clearly bars any person including universities to conduct any course without permission from the Central Government on and after 27.8.1992. The learned counsel also submitted that the Tamil Nadu Dr.M.G.R.Medical University Chennai Act, 1987 having been enacted prior to the amendment issued to Section 10A of the Medical Council of India Act, 1956 (Amendment Act 31 of 1993), which clearly states that notwithstanding anything contained in this Act or any other law for the time being course, no person shall establish the Medical College and no Medical College shall open a new or higher course of study or training and in admission for increase of intake of a person without prior permission from the Central Government obtained in advance. 17. The learned counsel for the second respondent also submitted that the said issue is already settled by series of decisions of this Court as well as the Honourable Supreme Court. The learned counsel also argued that if any other university is conducting any medical course/courses without the permission of the Central Government/Medical Council of India, the same is illegal and there https://hcservices.ecourts.gov.in/hcservices/ cannot be equality in illegality. 18. Mr.P.Sanjai Gandhi, the learned Additional Government Pleader appearing for the third respondent supported the contentions raised by the fourth respondent-University and submitted that as per the Tamil Nadu Dr.M.G.R.Medical University Chennai Act, 1987, the P.G.Diploma courses now proposed to be permitted by the University in two colleges and other institutions are permissible and there is no illegality in the said action of the fourth respondent-University. 19. In reply to the said submission, the learned Senior Counsel for the petitioners submitted that the contention of the Senior Counsel for the fourth respondent-University that the Tamil Nadu Dr.M.G.R.Medical University Chennai Act, 1987 will prevail over the Medical Council of India Act, 1956 and Regulations framed cannot be accepted, as the very same contention of the university was repelled in the judgment of the Honourable Supreme Court in THIRUMURUGA KIRUPANANDA VARIYAR THAVATHIRU SUNDARA SWAMIGAL MEDICAL EDUCATIONAL AND CHARITABLE TRUST VS. STATE OF TAMIL NADU & OTHERS reported in AIR 1996 SC 2384. The learned Senior Counsel also submitted that the University is only an affiliating body and it cannot conduct any course of study, as it is coming under Section 11(2) of the Medical Council of India Act, 1956 to get recognition from the Central Government and thereafter only, the qualification awarded will be included in the First Schedule in consultation with the Medical Council of India. The learned Senior Counsel also relied on Regulation 7.20 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 and contended that the P.G.Diploma courses now proposed to be conducted and persons, who are passing the same cannot be treated as specialist and they cannot also suffix their P.G.Diploma in Medical Sciences along with their degree qualification. 20. I have considered the rival submissions made by the respective learned Senior Counsels and other learned other counsels appearing for the respective parties as well as the pleadings. 21. The point arises for consideration is, whether the fourth respondent-University is competent to grant permission to conduct P.G.Diploma Courses in Medical Sciences from the academic year 2011- 2012 to the hospitals/institutions without getting prior permission from the Central Government, which can be granted only on the basis of the recommendation made by the Medical Council of India. 22. It is an admitted case of the fourth respondent-University that without previous permission from the Central Government as contemplated under Section 10A of the Medical Council of India Act, 1956, the University decided to start P.G.Diploma courses in Medical Science and granted permission to conduct courses in 11 hospitals/medical colleges for one year/two years course in the https://hcservices.ecourts.gov.in/hcservices/ following courses. 1. HIV Medicine One Year 2. Occupational Health One Year 3. Palliative Medicine One Year 4. Clinical Immunology One Year 5. Medical Genetics Two Years 6. Critical Care in Medicine Two Years 7. Family Medicine-Distance Education Two Years 8. Medical Imaging Two Years 9. Diagnostic Ultrasound Two Years 10. Clinical Laboratory Medicine Two Years 11. Clinical Diabetology Two Years 23. The primary contention of the petitioners is that without previous permission from the Central Government, no institution including any University can commence a new or higher course of study or training including post graduate course of study or training to establish either in the university or permit any hospital or institution and the same is prohibited under Section 10A of the Medical Council of India Act, 1956 as amended by Amendment Act 31 of 1993, which came into force from 27.8.1992. 24. Section 2(a)(e) and (1) are other relevant provisions to be considered. Section 2(a) reads as follows:- " 2(a) "approved institution" means a hospital, health centre or other such institution recognised by a university as an institution in which a person may undergo the training, if any, required by his course of study before the award of any medical qualification to him. 2(e) "medical institution" means any institution, within or without India, which grants degrees, diplomas or licences in medicine. 2(l) "University" means any University in India established by law and having a medical faculty." The medical colleges and institutions, which are granted permission by the university to conduct P.G.Diploma courses are coming within the "medical institution" and "approved institution". 25. The procedure for getting prior permission for establishing of a new medical college or institution, new course of study etc., are clearly spelt out in Section 10A of the said Act. The relevant portion of the said Section reads as follows:- "10A. Permission for establishment of new medical college, new course of study.- https://hcservices.ecourts.gov.in/hcservices/ (1) Notwithstanding anything contained in this Act or any other law for the time being in force,- (a) no person shall establish a medical college; or (b) no medical college shall- (i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or training (including a post- graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1.-For the