IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1761 OF 2008 1. Dr.Bhavin Mahesh Pujara ) Indian inhabitant ) residing at C-2/604,Lok Everest) Mulund(West), Mumbai-400 080 ) 2. Dr.Suryaprakash Radheshyam Asawa) Indian inhabitant, ) residing at Asawa Niwas, Main ) Road, Bhokar, Dist. Nanded ) 3. Dr.Anand Ashok Soni ) Indian inhabitant ) Opp.Pedha Hanuman Temple ) Parbhani. ) 4. Dr.Jignesh Babulal Patel ) J/3, Ashray, Indira Bridge ) Corner, Hansol Ahmedabad-382475) 5. Dr.Vivek Kute ) R/o 101, Ekta Co.Op.Hsg.Society) Opp. Govardhan Vidyalaya, ) Papadi, Vasai (W), Thane, ) Mumbai, Maharashtra )..Petitioners Vs. 1. State of Maharashtra ) through its Medical Education ) Department at Mantralaya ) Mumbai-400 032 ) 2. Directorate of Medical ) Education & Research, ) St.George Hospital Compound ) Near CST Terminus ) Mumbai-400 001 ) 3. Medical Council of India ) Sector-8, Pocket-14, Dwarka-1 ) New Delhi-110 007 ) 4. Dr.Mukund Bajaj, Indian ) inhabitant, C/o. Directorate ) of Medical Education and ) Research, St.George Hospital ) Compound, Near CST Terminus ) Mumbai-400 001 )..Respondents ---- Mr.M.M.Vashi i/by Divya Kundnani for the petitioner. Mr.M.D.Naik AGP for respondent nos.1 & 2. Ms.Simran Puri for respondent no.3. Mr.P.J.Thorat i/by Joseph & Asso for respondent no.4. ---- Coram : D.K.Deshmukh & R.S.Mohite,JJ Date : 8.6.2009 Judgment :- ( Per : R.S.Mohite,J) 1. The petitioners have filed this petition for a declaration that Rule 4.5 of the Rules of Eligibility as laid down by the Directorate of Medical Education and Research (Hereinafter referred to as Respondent No.2) for selection/admission to DM/MCh, Super Speciality Medical Course for the year 2008 are ultra-vires the rules prescribed by the Medical Council of India and is therefore, null and void. The petitioners further seek a direction from Respondent no.2 to disclose the names and merit list ranks of ineligible candidates with details of the admissions given to them for the DM/MCh Super Speciality Medical course 2008 and to declare all such admissions to be null and void. The last direction sought in the petition is a direction to Respondent No.2 to revise the merit list for admission to DM/MCh Super Speciality Medical Course for the year 2008 by excluding from the merit list the names of the ineligible candidates and to reconsider the preference forms of the eligible candidates for admission to the said Super Speciality Medical Course in the fields of their choice. 2. The brief facts of the case are as under :- (a) The petitioners are all students who have obtained a recognised post graduate degree of MD (Medicine) through courses approved by the Medical Council of India. (b) After obtaining such post graduate degrees the petitioners applied for admission to DM Super Speciality Course and on 15.6.2008, appeared for the MH-SSET-2008 entrance examination conducted by respondent No.2. Amongst others, Respondent no.4 was a student who also appeared for this examination. He was a student who had completed his MBBS course and obtained a MBBS degree from Grant Medical College, Mumbai in February-2000 and had thereafter obtained a degree of MD (General Medicine) from Swami Ramanand Tirth Rural Medical College, Ambejogai. The said post graduate degree was granted by Dr.Babasaheb Ambedkar Marathwada University to which the SRTR Medical College Ambejogai is affiliated. (c) The result of the MH-SSET-2008 examination was declared by the Directorate of Medical Education Research on 24.6.2008. Amongst the parties before us, Respondent no.4 was the highest on the merit list and he secured rank no.7. Amongst the petitioners, the Petitioner no.1 was placed at rank no.27, Petitioner no.2 was placed at rank no.14.3 Petitioner no.3 was placed at rank no.33.1 and Petitioner no.4 was placed at rank no.23.1 on the merit list. 3. The record indicates that after the declaration of the result, on 28.7.2008 Respondent no.4 approached the Grant Medical College and Sir J.J. Group of Hospitals. On the same day he submitted his original documents to the said college and paid the fees of Rs.25,000/-. He was therefore, allowed to join superspeciality course on 1.8.2008. 4. Briefly stated, it is the case of the Petitioners that the admission of Respondent no.4 to the Super Speciality course of MD was not in accordance with law as Respondent no.4 did not possess a post graduate degree which was recognised by Respondent no.3 i.e. the Medical Council of India and as the possession of such a recognised post graduate degree was an essential requirement as per the eligibility criteria laid down by respondent no.3 in the "Post Graduate Medical Education Regulation 2000". It is their further case that the merit list was prepared by including several non eligible candidates who did not possess the requisite post graduate degree recognised by the Medical Council of India. 5. Respondent no.4 filed his affidavit in reply on 13.8.2008, and his additional affidavits dated 30.8.2008, 11.9.2008 and 18.3.2009 contending that after obtaining his MBBS degree from the Grant Medical College and Sir J.J. Group of hospitals he appeared in PGM-CET 2002 conducted by Respondent No.2 and after passing the examination got admission for MD (General Medicines) in the Swami Ramanand Tirth Rural Medical College & Hospital, Ambejogai which college was recognised by Medical Council of India. That thereafter in the 3rd week of May-2008, Respondent no.2 invited applications for admission to the post of DM for the academic year 2008-2009 and prescribed the eligibility criteria specifying the qualifications required for appearing in the MH-SSET 2008 examination. This examination was conducted on an all India basis on 15.6.2008, wherein he appeared and secured the 7th rank in the merit list which was higher than all the Petitioners who had appeared in the said examination. That after the declaration of the results of the examination on 23.6.2008 he learnt that he had been selected for the post of DM. He was granted his preference of DM cardiology in the Grant Medical College and Sir J.J. Group of Hospitals Mumbai, where, after paying his fees, he joined on 1.8.2008. 6. On behalf of Respondent No.4, a written submission dated 8.5.2009 came to be filed. In his written submission, Respondent No.4 contended that the degree obtained by him was a recognized degree as required under the Indian Medical Council Act 1956 as MD (General medicine) granted by Dr.Babasaheb Ambedkar Marathwada University found place in the First Schedule of the said Act. Relying upon the Division Bench Judgment of this Court in the case of Vitthal Dewaji Chavan Vs. Medical Council of India reported in 2003 (4) Mh.L.J. 974, it was contended that the medical colleges affiliated to any university imparting higher courses of study already in existence prior to commencement to the Indian Medical Council (Amendment) Act, 1993, if already included in the First Schedule, would not fall within the ambit of Section 10-A, 10-B & 10-C of the Act. Placing reliance upon another Division Bench Judgment in the case of Vidya Shikshan Prasarak Mandal, Nagpur Vs. Medical Council of India reported in 1998(3) Mh.L.J. 164, it was contended that the provisions regarding obtaining prior permission of the Central Government as contemplated by Section 10-A, 10-B & 10-C would not apply to medical colleges in existence prior to 1.6.1992. It was contended that Respondent No.4 had admittedly obtained better marks in the CET, as compared to the Petitioners. It was submitted that in any case, if it was held that the Petitioner did not have the required qualification then he may be granted a seat from amongst the several un-recognized super speciality seats for DM (cardiology), as presently in existence, by exchange, if the student admitted to such un-recognized super speciality seat possessed the requisite recognised qualification. 7. On behalf of Respondent No.2, an affidavit dated 16.9.2008 affirmed by Bhushan Ashok Gagrani, Secretary, Medical Education & Drugs Department came to be filed. In brief, the contention raised in this affidavit was that since March-2008, the State Government had started the process of getting the post graduate courses recognized by Medical Council of India and applications in respect of 44 courses were pending. In some cases inspection had been carried out by the Medical Council of India. In this state of affairs, a Public Interest Litigation being PIL No.41 of 2008 was filed in this Court and the main prayer in this petition was to direct the State to admit students to post graduate courses even though the courses had not yet been recognized by the Medical Council of India. The Govt. of Maharashtra expected that the pending applications for obtaining recognition by the Medical Council of India would be completed by June-2009 and in such circumstances, it took a conscious decision, in larger public interest, to admit students to super speciality courses with post graduate qualification from colleges which had applied for recognition of its degrees by the Medical Council of India. Further such admissions to super speciality courses were to be permitted only if the course was recognized by the Maharashtra Medical Council. The affidavit conceded that in respect of the SRTR Medical College and Hospital, Ambejogai, an inspection had already been carried out at the behest of the Medical Council of India and the Council Inspectors Report dated July-2008 recommended that no recognition should be given to the MD (General Medicine) course conducted by the said college on the ground that proper and sufficient staff was not available with the college. 8. On behalf of Respondent No.3, the Medical Council of India, an affidavit dated 23.3.2009 affirmed by Dr.Ashok Kr.Harit, Deputy Secretary, Medical Council of India was filed. The contention raised by the MCI was that the Indian Medical Council Act 1956 empowered the Medical Council Act to prescribe standards in medical education as well as to frame regulations on the said subject. That it had been held by the Supreme Court in the case of MCI Vs.State of Karnataka, reported in (1998) 6 SCC, 131 and re-emphasised by the Constitution Bench of the Supreme Court in the case of Dr.Preeti Srivastava Vs. State of M.P. reported in (1999) 7 SCC 120. That the regulations framed by the Medical Council of India under Section 13 were statutory and were both binding and mandatory in nature. That it was not sufficient that a degree of a university be recognized. It was also necessary that the course of each individual college affiliated to a university must be approved. To butress this contention, reliance was placed upon the judgment of this Court in the case of Rahul Mahajan & Ors. Vs.State of Maharashtra reported in 1995 (1) MLR 116. In this regard reliance was also placed upon the Division Bench Judgment of the Karnataka High Court delivered on 11.3.2004 in Writ Petition No.3450 of 2003 Dr.Pramod Pandurang Vs. Union of India & Ors. 9. At the stage of arguments, Counsel for the Medical Council of India drew our attention to regulation 10(2) of "Post Graduate Medical Education Regulations 2000" which is in the following terms :- "Doctor of medicine (D.M)/Magister Chirurglae (M.Ch.) :- The period of training for obtaining these degrees shall be three completed years (including the examination period) after obtaining M.D/M.S degree or equivalent recognised [qualification in the required subject." (emphasis provided) 10. Our attention was also drawn to the Schedule to this regulation which specified the specialities/subjects in which postgraduate Degree and Diploma can be awarded by the Indian Universities and the eligibility requirements of Candidates for registration for the same, and in particular clause-C of this schedule which was in the following terms :- S C H E D U L E C. D.M. (DOCTOR OF MEDICINE) for which candidates must possess recognised degree of M.D. (or its equivalent recognised degree) in the subjects shown against them. Prior Requirement 1. Cardiology MD (Medicine) MD (Paediatrics) 2. Clinical Haematology MD (Medicine) MD (Pathology) MD (Paediatrics) MD Biochemistry 3. Clinical Pharmacology MD (Pharmacology) 4. Endocinology MD (Medicine) MD (Paediatrics) MD (Biochemistry) 5. Immunology MD (Medicine) MD (Pathology) MD (Microbiology) MD (Paediatrics) MD (Bio-chemistry) MD (Physiology) 6. Medical Gastroentrology MD (Medicine) MD (Paediatrics) 7. Medical Genetics MD/MS in any subject 8. Medical Oncology MD (Medicines) MD (Radio-Therapy) MD (Paediatrics) 9. Neonatology MD (Paediatrics) 10. Nephrology MD (Medicine) MD (Paediatrics) 11. Neurology MD (Medicine) MD (Paediatrics) 12. Neuro-radiology MD (Radio-diag) (emphasis provided) 11. As regards the reliefs claimed, Counsel of MCI placed reliance upon two judgments of the Apex Court in the case of Medical Council of India Vs.Madhu Singh & Ors. reported in (2002) 7 Supreme Court Cases 256 and a later judgment of the Apex Court in the case of Mridul Dhar Vs. Union of India reported in (2005) 2 Supreme Court Cases 65 to contend that midstream admissions to the colleges could not be granted as the admission process for the course of 2008 had been closed on 30.9.2008. Further by placing reliance upon the proviso of the regulation 11.6(4) it was contended that any post graduate seats left unfulfilled could not be carried forward to the next or subsequent academic years. The contention was that if the petitioner was unseated, his seat would become vacant from the date of such unseating but that such a seat could not be carried forward to the year 2009 or allotted to the Respondents. 12. On considering the arguments and contentions raised by all the parties, the provisions of the Indian Medical Council Act 1956, the provisions of the Postgraduate Medical Education Regulations 2000, the prospectus for examination and other documents produced, the picture that emerges can briefly be stated as follows :- (a) That the Indian Medical Council Act 1956 initially cast the Indian Medical Council in an advisory, consultative & recommendative role. The three Schedules to the Act set out the medical qualifications which were recognized by the Medical Council of India. If any university or medical institution found that its medical qualification did not find place in the First Schedule, such university or medical institution had a right to apply for recognition of its medical qualification by making an application under Section 11(2) of the said Act and the Central Government after consulting the Council was empowered to amend the First Schedule to include the qualification of the said university or medical institution if its so thought fit. Similarly under the scheme envisaged by sections 17 & 19 of the Indian Medical Council Act 1956, the Council could also make a representation for withdrawal of recognition and on such a representation being received, the Central Government was required to decide the same after obtaining the remarks of the State Government. (b) With a view to giving teeth and more powers to the Medical Council of India, the Government of India issued an Ordinance on 27.8.1992 viz. The Indian Medical Council (Amendment) Ordinance 1992 to amend the Indian Medical Council Act 1956. This was continued by the Indian Medical Council (Ordinance-II) of 1993 and ultimately the bill to replace this Ordinance was passed and the Medical Council (Amendment Act 1993) incorporated Sections 10-A, 10-B & 10C in the original Act of 1956 with effect from 27.8.1992. This amendment prohibited the opening of a medical college, a new or higher course of study or training including postgraduate study which would enable the student to such course to qualify himself for the award of any recognised qualification or increase strength except with the previous permission of the Central Government. The Central Govt. was required to refer the application to the Council for its recommendation and on receipt of the recommendation it could either approve or disapprove the application. Section 10-B inter alia provided that if any medical college was established except with the previous permission of the Central Govt. in accordance with the provisions of Section 10-A, no medical qualification granted to any student of such medical college would be a recognised medical qualification for the purpose of the Act. Section 10-C inter alia provided that if after the 1st day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment) Act, 1993 any person had established a medical college or any medical college had opened a new or higher course of study or training or had increased the admission capacity, such person or medical college, as the case may be, would be required to seek within a period of one year from the commencement of the Indian Medical Council (Amendment) Act 1993, the permission of the Central Government in accordance with the provisions of Section 10-A. 13. The Division Bench of this Court in the case of Vidya S.P.Mandal, Nagpur Vs. Medical Council reported in 1998 (3) Mh.L.J.164 was considering a case where a Medical College which had been established prior to 1.6.1992 had made an application for approval/recognition of its qualification and this application was pending before the Medical Council of India when the 1993 amendment was brought into force . In this background of facts, the Division Bench held that Section 10-A, 10-B & 10-C would not be applicable to the petitioners' college as its application was pending and that the Medical Council of India was required to consider the said pending application as per the provisions of the Indian Medical Council Act as it stood prior to its amendment in 1993. . Subsequently another Division Bench in the case of Vitthal Chavan (supra) held that medical colleges/institutions affiliated to any university imparting higher courses of study already in existence prior to commencement to the Indian Medical Council (Amendment) Act, 1993, such higher course or study being included in the First Schedule were not covered under the scheme of sections Sections 10-A to 10-C. Counsel appearing for Medical Council of India brought to our notice that the Apex Court had granted a stay to the operation of this judgment and that the matter is still pending before the Apex Court. 14. In the case of Dr.Preeti Srivastava (supra) a Constitutional Bench of the Apex Court held that even the States have competence to prescribe rules for admission to postgraduate medical courses so long as they are not inconsistent with or do not adversely affect the standards laid down by the Union of India or its delegate. In this regard in paragraph-35 the Apex Court observed as under :- 35) "The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on "education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III". Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows : "25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of lagour. Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows : "66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions." Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254." 15. While dealing with regulations framed by the Indian Medical Council under Section 20 read with section 33 of the Medical Council Act, the Apex Court observed as under :- "Mr.Salve, learned Counsel appearing for the Medical Council of India has, therefore, rightly submitted that under the Indian medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of postgraduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed regulations which govern postgraduate medical education. These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I." 16. Coming to the facts of this case, we find that the information brochure for the MH-SSET-2007 examination conducted by Respondent no.2 prescribed eligibility criteria under clause 4.5 as under :- "4.5 The candidate must possess recognized postgraduate degree MD/MS (or its equivalent) from a medical college recognised by MCI. The candidates who have appeared and completed MD/MS or equivalent examinations are also eligible to submit application forms. However, they will be considered for selection, on production of passing certificate on the date of Preference form filling and Counselling." . However, for the MH-SSET-2008 examination conducted by Respondent no.2 the said clause 4.5 was changed to read as under :- "4.5 The candidate must possess postgraduate degree MD/MS (or it's equivalent) from a medical college. The candidates who have appeared and completed MD/MS or equivalent examinations are also eligible to submit application forms. However, they will be considered for selection, on production of passing certificate on the date of Preference form filling and counselling." 17. In view of the finding of the Apex Court, we find the explanation given on behalf of Respondent No.2 for effecting this change is unsustainable. as this change in the eligibility criteria runs counter to the mandatory and binding provisions of regulation 10(2) read with clause-C of the Schedule as contained in the Postgraduate Medical Education Regulations 2000, made by the Medical Council of India in exercise of the powers under Section 33 read with section 20 of the Indian Medical Council Act 1956. We find no force in the contention of the petitioner that his degree of MD found recognition in Schedule-I. On perusing Schedule-I we find that certain degrees obtained by students through courses run by two colleges affiliated to Dr.Babasaheb Ambedkar Marathwada University find place in the Schedule. No degree issued by the Dr.Babasaheb Ambedkar Marathwada University through a course run by SRTR Medical College, Ambejogai find place in the Schedule. In so far as the Maharashtra University of Health Sciences, Nasik is concerned, only certain diplomas find place in the Schedule. This being the factual situation, in our view, even the judgment in the case of Vitthal Chavan (supra) does not come to the aid of the petitioners. This apart from the fact the operation of the said judgment is stayed by the Apex Court. Further in our view, the Division Bench judgment of this Court in the