IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:25-11-2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.17012 of 2009 and M.P.No.1 of 2009 M.Venkatesan ... Petitioner vs. 1. Tamil Nadu Dr.M.G.R.Medical University P.B.no.1200 No.69, Anna Salai Guindy, Chennai 600 032 rep. By its Registrar. 2.The Medical Council of India Sec.8, Pocket 14, Dwaraka 1 New Delhi 110 077 rep. By its Secretary. R-2(impleaded as per order dt.29.09.09 in M.P.No.2 of 2009) 3.Dr.C.Saravanan R-3(impleaded as per order dt.15.10.09 in M.P.No.3 of 2009) ... Respondents Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Mandamus as stated therein. For petitioner : Mr.V.Selvaraj For respondents : Mr.AR.L.Sundaresan,Sr.Counsel for Mrs.AL.Gandhimathi for R.1 Mr.V.P.Raman for R.2 Mrs.Chitra Sampath for R.3 .. ORDER The petitioner, who, after completion of his Post Graduate degree in Medicine, has completed his M.Ch. (Paediatric Surgery) at the Institute of Child Health, Chennai, and having undergone the course between July 2006 and August, 2009 appeared for clinical examination on 10.8.2009 at the Institute of Child Health, Egmore, Chennai, filed the above writ petition for direction against the first respondent University, to appoint external examiners for https://hcservices.ecourts.gov.in/hcservices/ conducting M.Ch. (Paediatric Surgery) clinical and practical examinations afresh by cancelling the examination held on 10.8.2009 in the Institute of Child Health, Egmore, Chennai. 2. After filing of the writ petition, the second respondent Medical Council of India was impleaded as per the order of this Court dated 29.9.2009. Thereafter, the third respondent, another candidate who had undergone the said M.Ch. (Paediatric Surgery) course in the Institute of Child Health, Egmore, Chennai and who also participated in the clinical examination held on 10.8.2009, filed a petition to implead himself as a party and he has also been impleaded by order of this Court dated 15.10.2009. 3. It is the case of the petitioner that as per the Post Graduate Medical Education Regulations,2000, out of minimum four examiners, two shall be the external examiners who are to be invited from recognized universities from outside the State and such external examiners must have minimum six years of experience as recognized Post-graduate Teachers. It is the case of the petitioner that after he took up the examination for which results were to be published on 9.9.2009, he came to know that Dr.V.Ravindran of Annamalai University was appointed as one of the external examiners, who is not qualified since he is not a person coming from outside the State. 3(a). That apart, it is the case of the petitioner that the Annamalai University is not a recognized University for M.Ch. (Paediatric Surgery) course and hence, the appointment of Dr.V.Ravindran is illegal and the examination conducted on 10.8.2009 for M.Ch. (Paediatric Surgery) is not valid. It is stated that the petitioner has written to the Vice Chancellor of the Tamil Nadu Dr.MGR University, who has expressed his inability to interfere. In these circumstances, the present writ petition has been filed mainly on the basis of the above said contention. 4. In the counter affidavit filed by the first respondent University, while the fact that the petitioner has written the examination for M.Ch.(Paediatric Surgery) held in August, 2009 is admitted, it is stated that in the practical examination for M.Ch. (Paediatric Surgery), four examiners were appointed viz., (i) Dr.Philip Chandran, Professor of Paediatric Surgery, ICH, Chennai, as Convenor, (ii) Dr.Jacob Chacko, Professor of Paediatric Surgery, CMC, Vellore, as Member, (iii) Dr.Kanishka Doss, Professor of Paediatric Surgery, St.John's Medical College and Hospital, Bangalore as Member, and (iv) Dr.Mohan Abraham, Professor of Paediatric Surgery, Amirtha Institute of Medical Sciences, Cochin, as Member. 4(a). It is stated that Dr.Mohan Abraham, Professor of Paediatric Surgery, Amirtha Institute of Medical Sciences, Cochin, expressed his inability to be an Examiner in the last minute due to personal reasons and in those circumstances, the first respondent https://hcservices.ecourts.gov.in/hcservices/ University was forced to appoint an alternative Examiner to conduct the practical examination on 10.8.2009 since other three examiners also accepted the appointment of examinership and made all the arrangements to conduct the practical examination. 4(b). It is stated that the Annamalai University is a separate entity and that the Tamil Nadu Dr.MGR University Act, 1987 is applicable to the State of Tamil Nadu and under Section 2(r) of the above said Act not extended to Annamalai University and therefore, treating Dr.V.Ravindran of Annamalai University as an Examiner outside the State as per the guidelines, he was appointed as one of the examiners for practical examination. 4(c). It is stated that Dr.V.Ravindran completed his M.Ch. (Paediatric Surgery) in Madurai Medical College in the year 1999 and from 1.12.1999 till date, he has been working in Annamalai University. It is stated that he is working as a Lecturer in the Department of Paediatric Surgery from 1.12.1999 to 13.2.2003 and as Reader in the same department from 14.2.2003 to 19.3.2006 and as Professor from 19.3.2006 till date in Raja Muthiah Medical College and Hospital, Annamalai university, Chidambaram, Tamil Nadu. It is stated that he is functioning as Head of the Department of Paediatric Surgery from 13.6.2008 till date. 4(d). It is the case of the first respondent University that all the Post Graduate Examiners are recognized as post-graduate teachers holding post-graduate degree in the subjects concerned and therefore, Dr.V.Ravindran fulfils the condition for appointment as external examiner since he is a post-graduate teacher holding post-graduate degree in the subject concerned and recognized as a post-graduate teacher in Annamalai University, Chidambaram and hence, his appointment as external examiner is within the Regulations. 4(e). It is also stated that Dr.V.Ravindran, is working as Professor and Head of the Department in the Department of Paediatric Surgery at Rajah Muthaiah Medical College and Hospital, Annamalai University, Chidambaram and no fault can be found against him as an external examiner. According to the first respondent, the writ petition is not maintainable. It is admitted that the results of the examination held in August, 2009 in respect of M.Ch. (Paediatric Surgery) is withheld due to the pendency of the writ petition and the interim orders passed in the writ petition. 4(f). It is stated that no other candidate has questioned the appointment of Dr.V.Ravindran as external examiner and the writ petition affects the interests of third parties. It is also stated that the appointment of Dr.V.Ravindran is one of the contingent circumstances which is not prohibited by the Medical Council of India by its Regulations. https://hcservices.ecourts.gov.in/hcservices/ 5. The Medical Council of India in its counter affidavit, while explaining about the statutory force of the Regulations framed by the Medical Council of India and the significance of medical education, especially post-graduate course and super speciality course, has stated that the powers conferred under section 20 and 33 of the Indian Medical Council Act,1956, the regulations of the Medical Council of India in relation to post-graduate medical courses, i.e., "The Post Graduate Medical Education Regulations, 2000" was approved by the Government of India on 22.5.2000 and published in the Official Gazette on 7.10.2000. 5(a). The counter affidavit also refers to Regulation No.9, which speaks about the Selection of Post-graduate Students. The eligibility requirement for candidates to register in the speciality subjects in respect of M.Ch. is stated to be one that a candidate must possess a recognized degree of M.S. or its equivalent recognized degree in the subject shown against him. It is also stated that the said Regulations cover the Post- graduate Medical Education including super speciality courses after M.S. and M.D. 5(b). It is stated that as per the Regulations, out of four examiners, two shall be external examiners from recognized Universities outside the State and no person can be appointed as external examiner unless he/she is having minimum six years’ experience as P.G. Teacher. Apart from referring to Regulation 14(1) of the Post-graduate Medical Education (Amendment) Regulations, 2008, which stipulates the above said condition, a reference is also made to the guidelines for appointment of Post-graduate Examiners, which contemplate for the appointment of internal examiners with three years’ experience as recognized P.G. Teachers in the subject concerned and for external examiners, the guidelines stipulate for six years’ experience as recognized P.G. Teachers in the concerned subject. However, it is stated that the appointment of external examiners is the prerogative of the concerned University following the minimum guidelines or criteria prescribed by the Regulations. 5(c). It is also stated that for Post-graduate Super-speciality Courses in Medicine, more stringent qualifications are required than the graduate level. It is stated that M.Ch. Regulations are mandatory in nature and any other State enactment or rules which are inconsistent with the Act and the regulations made thereunder by the Medical Council of India, are repugnant by virtue of Article 254 of the Constitution of India, as held by the Supreme Court in Dr.Preeti Srivastava vs. State of Madhya Pradesh and others [(1999) 7 SCC 120]. 6. The third respondent, who was impleaded and who was also another candidate participated in the same examination, has stated that the petitioner and the third respondent were doing M.Ch. course in the Institute of Child Health, Egmore, Chennai. It is also https://hcservices.ecourts.gov.in/hcservices/ stated that apart from them, another candidate who joined in Madras Medical College along with the petitioner and the third respondent has abandoned the course and one other candidate admitted from Madurai has failed to join the course. Therefore, in addition to the petitioner and third respondent, two other candidates from Coimbatore Medical College have taken up the theory examination on the same day at the respective centres and as per the schedule, the petitioner and the third respondent took up the clinical examination in the Institute of Child Health, Madras Medical College, Chennai and the said clinical examination started from 8.00 a.m. and proceeded till 6.00 p.m. and four examiners appointed by the first respondent University questioned the candidate individually without reference to other examiners on various aspects involving Paediatric Surgery. 6(a). It is stated that the paediatric course involves handling of infants from birth till 13 years’ old and the said examination included one long case presentation and three short case presentations and detailed discussion and also answering to examiners in respect of various questions put to them and the above said process went for not less than 1½ hours that is, 15 minutes for each of the cases. According to the third respondent, the examination was conducted in intensive manner and it was not a mere formality. 6(b). It is stated that the candidates from Coimbatore also participated in the clinical examination held on 11.8.2009 and their results were published on 9.9.2009 while the results of the petitioner and the third respondent have not been released due to the pendency of the case. It is the case of the third respondent that external examiner means an examiner who is other than those working in the first respondent University and therefore, the appointment of Dr.V.Ravindran of Annamalai University cannot be doubted. It is stated that his (Dr.V.Ravindran) specialization in Paediatric Surgery is unparalleled since he himself is qualified from Madurai Medical College and he is a Professor and Head of the Department for the past six years in Annamalai University and he is coaching the students undergoing the Post Graduate course in M.D. Paediatrics and M.S. and he has published many articles. 6(c). It is stated that the petitioner having participated in the examination conducted by the four examiners, as per the statutory regulations, cannot question the validity of the examination conducted and the same is for extraneous reasons especially when the writ petitioner has not alleged any mala fide, fraud or irregularity against the examiners. It is also stated that even if the appointment of Dr.V.Ravindran is assumed to be irregular, that cannot affect the entire examination process, especially when other three examiners are competent who have given their valuation and hence, the examination conducted by the four examiners should be approved. https://hcservices.ecourts.gov.in/hcservices/ 7. By taking note of the contention of the learned counsel for the petitioner and the learned counsel appearing for the respondents, the material points to be decided and discussed in this case are, as to whether the concerned Regulations passed by the Medical Council of India regarding the appointment of Examiners especially with reference to external examiners for M.Ch. Course are mandatory and whether the appointment of one of the external examiners vitiates the entire examination on the ground that he is not qualified. 8. On the face of it, there is no difficulty to conclude that by hierarchy of judgements of the Supreme Court, the Regulations of Medical Council of India in respect of medical education including examinations are having statutory binding effect. In cases where examinations are conducted against the provisions of Medical Council of India, especially when the examinations are relating to post- graduate and super-speciality courses, the violations of such statutory regulations cannot be permitted at any cost, for, in respect of super-speciality courses, while admitting or at the time of examinations, the sole criterion shall be the merit and merit alone and therefore, violation of any statutory regulations either in respect of appointment of examiners or otherwise will certainly affect the very conduct of the examinations, which, in my considered view, cannot be rectified for the reason that such violation cannot be at any stretch of imagination presumed to be a mere procedural violation. Therefore, if the appointment of examiners is not within the statutory requirements, certainly this Court cannot substitute its view to say that the majority of the examiners have been appointed as per the statutory requirements and therefore, the non- following of the requirements in respect of one or two examiners should not affect the conduct of the examinations. Such a view is outside the jurisdiction of this Court, since in the academic matters, especially relating to examinations, particularly with reference to super-speciality courses in Medicine, the scope of interference by this Court is very limited. 9. When merit alone is the criteria for getting admission to super-speciality courses, there is no scope to hold that while conducting examinations for super-speciality courses, there can be violation of statutory rules. When the rules are framed by the Medical Council of India, especially relating to post-graduate and super-speciality courses, it is presumed that the rules have been framed keeping in view the goal of maintaining high standard and merit in such examinations. 10. Now, coming to the relevant rules framed by the Medical Council of India, it is stated that Post-graduate Medical Education Regulations, 2000 were framed by the Medical Council of India. It is true that there are no separate regulations in respect of super- speciality courses framed by the Medical Council of India, but a reading of the Regulations shows that the said Regulations of 2000 https://hcservices.ecourts.gov.in/hcservices/ are applicable not only to the post-graduate courses in medical education, but also to the super-speciality courses. The goal of the said Regulations regarding post-graduate medical education is to produce competent specialists or medical teachers as enumerated under regulation No.3 which is as follows: "3. GOALS AND GENERAL OBJECTIVES OF POSTGRADUATE MEDICAL EDUCATION PROGRAMME TO BE OBSERVED BY POSTGRADUATE TEACHING INSTITUTION. 3.1. GOAL The goal of postgraduate medical education shall be to produce competent specialities and/or Medical teachers. i.Who shall recognise the health needs of the community, and carry out professional obligations ethically and in keeping with the objectives of the national health policy. ii.Who shall have mastered most of the competencies, pertaining to the speciality, that are required to be practiced at the secondary and the tertiary levels of the health care delivery system; iii.who shall be aware of the contemporary advance and developments in the discipline concerned; iv.who shall have acquired a spirit of scientific inquiry and is oriented to the principles of research methodology and epidemiology; and v.who shall have acquired the basic skills in teaching of the medical and paramedical professions;" 3.2 GENERAL OBJECTIVES OF POST-GRADUATE TRAINING EXPECTED FROM STUDENTS AT THE END OF POSTGRADUATE TRAINING. At the end of the postgraduate training in the discipline concerned the student shall be able to; i.Recognise the importance to the concerned speciality in the context of the health needs of the community and the national priorities in the health section. ii.Practice the speciality concerned ethically and in step with the principles of primary health care. iii.Demonstrate sufficient understanding of the basic sciences relevant to the concerned speciality. iv.Identify social, economic, environmental, biological and emotional determinants of health in a given case, and take them into account while planning therapeutic, rehabilitative, preventive and primitive measure/strategies. v.Diagnose and manage majority of the conditions in the speciality concerned on the basis of clinical assessment, and appropriately selected and conducted investigations. vi.Plan and advise measures for the prevention and rehabilitation of patients suffering from disease and https://hcservices.ecourts.gov.in/hcservices/ disability related to the speciality. vii.Demonstrate skills in documentation of individual case details as well as morbidity and mortality rate relevant to the assigned situation. viii.Demonstrate empathy and humane approach towards patients and their families and exhibit interpersonal behaviour in accordance with the societal norms and expectations. ix.Play the assigned role in the implementation of national health programme, effectively and responsibly. x.Organise and supervise the chosen/assigned health care services demonstrating adequate managerial skills in the clinic/hospital or the field situation. xi.Develop skills as a self-directed learner, recognise continuing education needs; select and use appropriate learning sources. xii.Demonstrate competence in basic concepts of research methodology and epidemiology, and be able to critically analyze relevant published research literature. xiii.Develop skills in using educational methods and techniques as applicable to the teaching or medical/nursing students, general physicians and paramedical health workers. xiv.Function as an effective leader of a health team engaged in health care, research or training." 11. Regulation No.7 relates to the nomenclature of post-graduate courses provided in the schedule annexed to the said Regulations. Under Regulation No.10, while explaining about the period of training for Doctor of Medicine (MD) and Master of Surgery (MS), which are post-graduate courses, it deals with the Doctor of Medicine and Master of Chirurgiae (M.Ch.), which are super-speciality courses for which the period of training is mentioned as follows: " 10. PERIOD OF TRAINING (1) ..... (2) Doctor of Medicine (D.M.) / Master Chirurgiae (M.Ch.) The period of training for obtaining these degrees shall be three completed year (including the examination period) after obtaining M.D./M.S. Degrees, or equivalent recognised qualification in the required subject; Provided that where an institution on the date of commencement for these Regulation, is imparting five year training in Neurology and Neuro-Surgery, such institution shall continue to have five year training course." https://hcservices.ecourts.gov.in/hcservices/ Therefore, for obtaining super-speciality degrees in medicine, the duration of course is three years after obtaining M.D. and M.S. degrees. While speaking about examinations in Regulation No.10, it says as follows: "EXAMINATIONS ...... The examination for M.S., M.D., D.M., M.Ch., shall be held at the end of 3 academic years (six academic terms) and for diploma at the end of 2 academic years (four academic terms). ...." 12. Likewise, Regulation 11.3, while speaks about Bed Strength in Clinical Departments in respect of super-speciality and M.Ch. courses it states as follows: "11. Departmental training Facilities:- 11.1 and 11.2. xxxx 11.3. Bed Strength in Clinical Departments A department to be recognised for training of Post Graduate students, shall have not less than 60 (sixty) beds each of General Medicine, General Surgery, Obstetrics and Gynaecology, 30(thirty) beds each for others incase of M.D./M.S. and diploma and 20 (twenty) beds each in case of D.M./M.Ch. Explanation:- A unit shall consist of 30 beds for MD/MS and 20 beds for DM/M.Ch. respectively." 13. Similarly, while speaking about Training Programme under Regulation 13, the implementation of the said programme also covers Doctor of Medicine (DM) and M.Ch. and the said regulation is as follows: "13. TRAINING PROGRAMME 13.1to 13.7 xxxx 13.8. Implementation of the training programmes for the award of various Post Graduate degree and diplomas shall include the following:- (a) Doctor of Medical (M.D.)/Master of Surgery (M.S.) (i) Basic Medical Sciences Lectures, Seminars, Journal Clubs, Group Discussions, Participation in laboratory and experimental work, and involvement in research studies in the concerned https://hcservices.ecourts.gov.in/hcservices/ speciality and exposure to the applied aspects of the subject relevant to clinical specialities. (ii) Clinical disciplines In service training, with the students being given graded responsibility in the management and treatment of patients entrusted to their care; participation in Seminars, Journal clubs, Group Discussions, Clinical Meetings, Grand rounds, and Clinico – Pathological Conferences; practical training in Diagnosis and medical and Surgical treatment; training in the Basic Medical Sciences, as well as in allied clinical specialities. (b) Doctor of Medicine (D.M.) / Magister Chirurgiae (M.Ch.) The training programme shall be on the same pattern as for M.D./M.S. in clinical disciplines; practical training including advanced Diagnostic, Therapeutic and Laboratory techniques, relevant to the subject of specialisation. For M.Ch. candidates,there shall be participation in surgical operations." 14. The crucial regulation which relates to the examinations is Regulation 14. Regulation 14.1 speaks about examiners, Regulation 14.2 deals with Doctor of Medicine and M.Ch. The Regulation 14 is as follows: "14. EXAMINATIONS. The examinations shall be organised on the basis of grading or marking system to evaluate and certify candidates level of knowledge, skill and competence at the the end of the training and obtaining a minimum of 50% marks in theory as well as practical separately shall be mandatory for passing the whole examination. The examination for M.S., M.D., M.Ch. Shall be held at the end of 3 academic years (six academic terms) and for diploma at the end of 2 academic years (four academic terms). The academic terms shall mean six months training period. (1) EXAMINERS (a) All the Post Graduate Examiners shall be recognised Post Graduate Teachers holding recognised Post Graduate qualifications in the subject concerned. (b) For all Post Graduate Examinations, the minimum number of Examiners shall be four, out of which at least two (50%) shall be External Examiners, who shall be invited from other recognised universities from outside the https://hcservices.ecourts.gov.in/hcservices/ State. Two sets of internal examiners may be appointed one for M.D./M.S. And one for diploma. (c) Under exceptional circumstances, examinations may be held with 3 (three) examiners provided two of them are external and Medical Council of India is intimated the justification of such action prior to publication of result for approval. Under no circumstances, result shall be published in such cases without the approval of Medical Council of India. (d) In the event of there being more than one centre in one city, the external examiners at all the centres in that city shall be the same. Where there is more than one centre of examination, the University shall appoint a Supervisor to co-ordinate the examination on its behalf. (e) The examining authorities may follow the guidelines regarding appointment of examiners given in Appendix II. (2) Number of candidates. The maximum number of candidates to be examined in Clinical/practical and Oral on any day shall not exceed eight for M.D./M.S. Degree, eight for diploma and three for D.M./M.Ch. Examinations. (3)Number of examinations The university shall conduct not more than two examinations in a year, for any subject with an interval of not less than 4 and not more than 6 months between the two examinations. (4) Doctor of Medicine (M.D.)/Master of Surgery (M.S.) M.D./M.S. Examinations, in any subject shall consist of Thesis, Theory Papers and clinical/Practical and Oral examinations. (a) Thesis Every candidate shall carry out work on an assigned research project under the guidance of a recognised Post Graduate Teacher, the result of which shall be written up and submitted in the form of a Thesis. Work for writing the Thesis is aimed at contributing to the development of a spirit of enquiry, besides exposing the candidate to the techniques of research, critical analysis, acquaintance with the latest advances in medical science and the manner of identifying and consulting available literature. Thesis shall be submitted at least six months before the theoretical and https://hcservices.ecourts.gov.in/hcservices/ clinical/practical examination. The thesis shall be examined by a minimum of three examiners; one