Civil Writ Petition No. 17820 of 2008 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: January 30th,2009 (1) C.W.P.No.17820 of 2008 Prabhoor Singh Hayer and others Vs. Baba Farid University of Health Sciences and others (2) C.W.P.No.18206 of 2008 Masdeep Singh Sidhu and others Vs. Gian Sagar Medical College and Hospital and others (3) CWP No. 18792 of 2008 Navneet Kaur Vs. Baba Farid University of Health Sciences and another (4) C.W.P.No.18846 of 2008 Parul Aggarwal and Ors. Vs. Baba Farid University of Health Sciences, Faridkot and Anr. (5) C.W.P.No.19120 of 2008 Amneet Kaur and Anr. Vs. Baba Farid University of Health Sciences, Faridkot and Anr. --- Civil Writ Petition No. 17820 of 2008 - 2 - Present: Mr.Rajiv Atma Ram, Senior Advocate with Ms. Sunita, Advocate for the petitioners. Mr.Anupam Gupta, Advocate, with Mr. Ashish Aggarwal, Advocate, for respondent- University. M/s. Gurminder Singh, and Manpreet Singh Longia, Advocates, for respondent No.3. CORAM: Hon’ble Mr.Justice T.S.Thakur, Chief Justice Hon’ble Mr. Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? T.S.Thakur, C.J. A Division Bench of this Court has referred all these petitions to a Full Bench to resolve a conflict in the views taken in two earlier Division Bench decisions of this Court in Civil Writ Petition No.13580 of 2003 (Salil Uppal and others Vs. Baba Farid University of Health Sciences and others) decided on 5.12.2003 and Civil Writ Petition No.17134 of 2007 (Ajay Prem Salhotra and others Vs. Baba Farid University of Health Sciences, Faridkot decided on 19.11.2007. Both the orders in the said two cases interpret the MCI Regulations and the Regulations framed by the Affiliating University in so far as the same relate to the eligibility of candidates to appear Civil Writ Petition No. 17820 of 2008 - 3 - in the MBBS second professional examination is concerned. Before we advert to the precise issues that fall for determination, we need to briefly refer to the backdrop in which the controversy arises. In Civil Writ Petition No.17820 of 2008 filed by 90 students undergoing M.B.B.S. Course in different Medical Colleges in the State of Punjab, all of which are affiliated to Baba Farid University of Health Sciences and in Civil Writ Petition No.18792 of 2008the question that falls for determination is whether the requirement of 18 months of academic study stipulated by Regulation 7.3 and Note (a) appearing below Regulation 8 of the Medical Council of India Regulations, is mandatory in character. The petitioners argue that the said requirement is directory in nature and once a candidate has successfully passed the first professional examination, he is entitled to join the main batch and appear in the second professional examination. The respondent-University and the Medical Council of India (hereinafter referred to as the “M.C.I.”) on the contrary argue that the requirement of 18 months study between the date on which the candidates passed their first professional examination and the date they appear in the second professional examination is an inflexible statutory requirement. According to the respondents, since the petitioners do not satisfy the said requirement they are not entitled to appear in the second professional examination scheduled to be held from 11.11.2008 onwards. In CWP No. 18206 and 18846 and 19120 of 2008, the petitioners, who have appeared in the first professional examination held in May-June, 2008 have been declared unsuccessful in the Civil Writ Petition No. 17820 of 2008 - 4 - examination in September 2008. The Colleges and the University have declined permission to admit the petitioners in the said petitions to the second professional course as they are not, according to the University, the M.C.I and the colleges, eligible for such admissions. Aggrieved by the refusal of the Colleges and the University to permit them to join the second professional course, the petitioners have filed the said petition seeking a mandamus directing the respondents to grant them admissions and to permit them to attend the second professional course. When Civil Writ Petition No.17820 of 2008 came up for hearing before a Division Bench comprising of Hemant Gupta and Nawab Singh, JJ., the petitioners relied upon the decisions of the Division Benches of this Court in Ajay Prem Salhotra and others V. Baba Farid University of Health Sciences and others (CWP No.17134 of 2007 decided on 19.11.2007) and Ankush Malhotra and others V. Baba Farid University of Health Sciences and others (Civil Writ Petition No.1192 of 2008 decided on 22.09.2008) to argue that they were entitled to appear in the second professional examination no matter they had not undergone 18 months of study for having the first professional examination. The respondents on the other hand relied upon the Division Bench decisions of this Court in Jyotis Cherian John and others Vs. Baba Farid University of Health Sciences and others, 2004(1) SLR 753; Salil Uppal and others Vs. Baba Farid University of Health Sciences and others (CWP No.13580 of 2003 decided on 5.12.2003); Amarbir Singh and others Vs. Baba Farid University of Health sciences and others Civil Writ Petition No. 17820 of 2008 - 5 - (CWP No.17899 of 2004 decided on 29.3.2005) and Salil Sharma Vs. Baba Farid University of Health Sciences and others (CWP No.18162 of 2004 decided on 29.3.2005). Reliance was also placed by the respondents upon the decisions of the Supreme Court in Council of Homeopathic System of Medicine, Punjab and others Vs. Suchintan and others, 1993 Supp. (3) Supreme Court cases 99 and Medical Council of India Vs. Sarang, 2001(8) SCC 427. The respondents appear to have argued on the authority of the above decisions that the statutory requirement of 18 months academic studies after qualifying the first professional examination was an essential requirement and that a candidate who did not satisfy the said requirement was not entitled to appear in the second professional examination. Expressing reservations about the correctness of the view taken in Ajay Prem Salhotra’s case (supra), the Division Bench was of the opinion that the judgments delivered by the Supreme Court in Suchintan and others and Sarang’s cases (supra) were attracted to the facts of the present case and that the conflict arising from the decisions rendered by Division Benches of this Court deserved to be resolved by a larger bench. That is precisely how the present writ petitions are before the Larger Bench. Appearing for the petitioners in CWP No. 17820 of 2008, Mr. Rajiv Atma Ram contended that the requirement of 18 months academic studies after qualifying in the first professional examination as a condition precedent for appearance in the second professional examination was not a mandatory requirement. In support of that submission he placed reliance upon regulation 7(7) of MCI Civil Writ Petition No. 17820 of 2008 - 6 - Regulations which inter-alia provides that a supplementary examination may be conducted within six months of the annual examination so that students who pass in the same can join the main batch. He urged that the provisions of Regulation 7(7) and note (a) appearing under regulation 8 of the said Regulations had to be harmoniously construed to give effect and meaning to the provisions of Regulation 7(7) inasmuch as the same provides for the holding of a supplementary examination with a view to enabling those who have failed in the annual examination to join the second professional examination after they are declared successful. It was argued by Mr. Rajiv Atma Ram that the decisions of this court in Jyotis Cherian John’s, Salil Uppal’s and Amarbir Singh’s cases (supra) relied upon by the respondents did not take note of the provisions of Regulation 7(7) and can not therefore, be taken as having been correctly decided. The decision in Ajay Prem Salhotra’s case (supra) on the contrary took note of the said provision and rightly declared the same to be directory in nature. It was also contended by the learned counsel that the second professional examination scheduled to be held on 11.11.2008 was being held within a period of 18 months from the date on which result of first professional examination was declared on 22.08.2007. This, according to him, implied that stipulation of 18 months of academic study and the regulations framed by the MCI were only directory in nature. So long the candidates had undergone the requisite 120 days of study for each semester and had the necessary attendance as stipulated in the regulations, the mere fact that a period of 18 months had not elapsed between the date on which they qualified the first Civil Writ Petition No. 17820 of 2008 - 7 - professional examination and the date on which they were scheduled to appear in the second professional examination, did not make any material difference. It was also contended that the decision in Jyotis Cherian John’s case (supra) was distinguishable on facts inasmuch as that case related to candidates who had without passing the first semester examination sought admission to the second professional course with the intervention of the court. Petitioners in CWP No. 17820 of 2008 had, however, already qualified and had been admitted to the second professional course by the institutes concerned. This was according to Mr. Rajiv Atma Ram a material difference between the situation dealt with by this court in Jyotis Cherian John’s case (supra) and that arising for consideration in the cases at hand. On behalf of the respondents it was per-contra argued by Mr. Anupam Gupta that the legal position as regards the regulations framed by the MCI being mandatory and directory in nature stood settled by a long line of decisions of the Supreme Court and those delivered by this Court in the cases referred to earlier. It was contended that the law having been authoritatively settled by the said decisions, there was no room for any forensic debate at this stage especially since the same had been uniformally applied for a long time in the past. The decision rendered in Ajay Prem Salhotra’s case (supra) was, according to Mr. Gupta, clearly distinguishable on facts as the candidates in that case were said to have completed the requisite studies to be eligible to appear in the second professional course, which was not the position in the case at hand. The petitioners in CWP No. 17820 of 2008 did not, according to the Civil Writ Petition No. 17820 of 2008 - 8 - learned counsel have the opportunity to attend any classes in the third semester as by the time they passed the first professional examination, the instructions in the third semester had already been completed. At any rate, the view taken in Ajay Prem Salhotra’s case (supra) was legally incorrect in the light of the pronouncements of the Supreme Court and the decisions rendered by the earlier Division Benches of this Court in Jyotis Cherian John and Amarbir Singh’s cases (supra). Section 33 of the Indian Medical Council Act, 1956 empowers the Medical Council of India to make regulations to further the objects underlying the Act. Clause (j) of Section 33 of the Act empowers the Council to make regulation for the course and the period of study. Similarly Section 19-A of the Act empowers the Council to lay down minimum standards of education. In exercise of the powers so vested in it, the Council has framed what are known as Medical Council of India Regulations on Graduate Medical Education, 1997 which cover a large number of subjects including matters of fundamental importance like the teaching approach and objectives of medical graduate training programme dealt with in Chapter-I of the said Regulations. Chapter-II of the Regulations deals with Admission/Selection, Migration and Training of the candidates. Chapter-III deals with the Curriculum, which it is note worthy is prescribed subject-wise. Chapter-IV deals with Examination Regulations, Attendance, Internal Assessment etc., while Chapter-V deals with Internship. Civil Writ Petition No. 17820 of 2008 - 9 - A reading of Chapter-I of the Regulation would show that Graduate Medical Curriculum is oriented towards training students to undertake responsibilities of a physician, capable of looking after preventive, promotive, curative and rehabilitative aspects of medicine. The Regulations make it abundantly clear that lectures alone are not adequate as a method of training. They are poor means of transferring/acquiring information and even less effective at skill development and in developing the right kind of attitudes. Regulations in Chapter-II lay emphasis on integrated teaching subjects like using problem based learning approach starting with practicals, clinicals and pre-clinical disciplines in understanding and resolving the problems. Regulations 4, 5 and 6 in Chapter-II deal with admission, selection of students and migration and are not immediately relevant for our purposes. What is relevant and indeed critical for determination of the issues in the present petitions is Regulation-7 of the aforementioned Regulations which may be extracted in extenso for facility of reference:- “7. Training Period and Time Distribution (1) Every student shall undergo a period of certified study extending over 4 ½ academic years divided into 9 semesters, (i.e. of 6 months each) from the date of commencement of his study for the subjects comprising the medical curriculum to the date of completion of examination and followed by one year compulsory rotating internship. Each semester will consist of approximately 120 teaching days of a hours each college working time, including one hour of lunch. Civil Writ Petition No. 17820 of 2008 - 10 - (2) The period of 4 1//2 years is divided into three phases as follows:- (a) Phase-1 (two semesters) – consisting of Pre- clinical subjects (Human Anatomy, Physiology including Bio-Physics, Biochemistry and introduction to Community Medicine including Humanities). Besides 60 hours for introduction to Community Medicine including Humanities, rest of the time shall be somewhat equally divided between Anatomy and Physiology plus Biochemistry combined (Physiology 2/3 and Biochemistry 1/3) (b) Phase-II (3 semester) – consisting of para – clinical/clinical subjects. During this phase teaching of para-clinical and clinical subjects shall be done concurrently. The para-clinical subjects shall consist of Pathology, Pharmacology, Microbiology, Forensic Medicine including Toxicology and part of Community Medicine. The clinical subjects shall consist of all these detailed below in Phase III. Out of the time for Para-clinical teaching approximately equal time be allotted to Pathology, Pharmacology, Microbiology and Forensic Medicine and Community Medicine combined (1/3 Forensic Medicine and 2/3 Community Medicine). Civil Writ Petition No. 17820 of 2008 - 11 - (c) Phase-III (continuation of study of clinical subjects for seven semesters after passing Phase-1) The clinical subjects to be taught during Phase II and III are Medicine and its allied specialties, Surgery and its allied specialties, Obstetrics and Gynaecology and Community Medicine. Besides clinical posting as per schedule mentioned herewith, rest of the teaching hours be divided for didactic lectures, demonstrations, seminars, group discussions, etc. in various subjects. The time distribution shall be as per Appendix-C. The Medicine and its allied specialties training will include General Medicine, Pediatrics, Tuberculosis and Chest, Skin and Sexually Transmitted Diseases, Psychiatry, Radio-diagnosis, Infectious diseases etc. The Surgery and its allied specialties training will include General Surgery, Orthopedics Surgery including Physiotherapy and Rehabilitation, Ophthalmology, Otorhinolaryngology, Anesthesia, Dentistry, Radio- therapy etc. The Obstetrics & Gynecology training will include family medicine, family welfare planning etc. (3) The first 2 semester (approximately 240 teaching days) shall be occupied in the Phase 1 (pre-clinical) subjects and introduction to a broader understanding of the perspectives of medical education leading to delivery of health care. No student shall be permitted to join the Phase II (Pare-clinical/clinical) group of subjects until he Civil Writ Petition No. 17820 of 2008 - 12 - has passed in all the Phase 1 (Pre-clinical) subjects for which he will be permitted not more than four chances (actual examination), provided four chances are completed in three years from the date of enrollment. (4) After passing pre-clinical subjects, 1½ year (3 semesters) shall be devoted to para-clinical subjects. Phase II will be devoted to para-clinical and clinical subjects, along with clinical posting. During clinical phase (Phase III) pre-clinical and para clinical teaching will be integrated into the teaching of clinical subjects where relevant. (5) Didactic lectures should not exceed one third of the time schedule; two third schedule should include practical, clinical or/and group discussions. Learning process should include living experiences, problem oriented approach, case studies and community health care activities. (6) Universities shall organize admission timings and admission process in such a way that teaching in first semester starts by 1st of August each year. (7) Supplementary examination may be conducted within 6 months so that the students who pass can join the main batch and the failed students will have to appear in the subsequent year.” Also significant are the model timetables prescribed in Appendix C to the Regulations from which it is evident that the MCI has in minute details dealt with matters relating to the contents of the Civil Writ Petition No. 17820 of 2008 - 13 - training programme and the time that ought to be devoted to different subjects for the entire course. We may also refer at this stage to Regulations 12 appearing in Chapter-IV which deals with examination and stipulates essentialities for qualifying to appear in the same. Regulation-12(1) stipulates 75% attendance in a subject as an essential requirement for appearing in the examination apart from the requirement of the 80% attendance in non-lecture teaching. Regulation-12 to the extent it is relevant for our purposes may be reproduced at this stage:- 12. EXAMINATION REGULATIONS Essentialities for qualifying to appear in professional examinations. The performance in essential components of training are to be assessed, based on: (1) ATTENDANCE 75% of attendance in a subject for appearing in the examination is compulsory provided he/she has 80% attendance in non lecture teaching. i.e. seminars, group discussions, tutorials, demonstrations, practicals, Hospital (Tertiary, Secondary, Primary) postings and bed side clinics, etc. (2) INTERNAL ASSESSMENT : (i) It shall be based on day to day assessment ( see note), evaluation of student assignment, preparation for seminar, clinical case presentation etc.: Civil Writ Petition No. 17820 of 2008 - 14 - (ii) Regular periodical examinations shall be conducted throughout the course. The questions of number of examinations is left to the institution: (iii) Day to day records should be given importance during internal assessment : (iv) Weightage for the internal assessment shall be 20% of the total marks in each subject : (v) Student must secure at least 35% marks of the total marks fixed for internal assessment in a particular subject in order to be eligible to appear in final university examination of that subject. xx xx xx xx xx xx xx xx There shall be one main examination in a year and a supplementary to be held not later than 6 months after the publication of its results.” From a careful reading of Regulation 7 in particular Regulation 7.7 and Regulation 12(3) (supra), the following can be deduced as the very essence of the said two provisions: i) The Candidates must undergo certified study extending over 4 ½ years divided into 9 semesters of 6 months each from the date of commencement of the study to the date of completion of examination followed by 1 years compulsory internship. Civil Writ Petition No. 17820 of 2008 - 15 - ii) Each semester of study to consist 120 teaching days of 8 hours each college working time including 1 hour of lunch. iii) Period of 4 ½ years of certified study to be divided into three phases:- (a) Phase-I comprising of semesters during which period pre-clinical subjects are studied by the candidates. (b) Phase-II of three semesters consisting of para- clinical/clinical subjects to be undertaken concurrently. (c) Phase-III comprising continuation of study of clinical subjects for seven semesters after passing phase-I during which medicines and its allied specialties, surgery and its allied specialties Obstetrics and Gynaecology and Community Medicine would be taught. iv) No student shall be permitted to join Phase-II (para- clinical/clinical) group of subjects until he has passed in all the pre-clinical subjects for which he will be permitted not more than four chances within a period of three years from the date of enrollment. v) Supplementary examination may be conducted by the University so that the students who pass can join the Civil Writ Petition No. 17820 of 2008 - 16 - main batch and the failed students may join in the subsequent year. vi) Passing in first professional examination is compulsory before proceeding to phase-II training in terms of note (a) of Regulation 7.8 of the Regulations. It was argued on behalf of the petitioners that while passing in first professional examination is made compulsory before proceeding to Phase-II training in terms of note(a) to Regulation 7.8, once a candidate passes the first professional examination, he is entitled to join the main batch as envisaged by Regulation 7.7. This would, according to the petitioners imply that they can appear in the second professional examination alongwith the said batch. That is, according to the petitioner, the only way in which Regulation 7.7 can be interpreted to avoid the said Regulation being rendered redundant and a mere surplus-age. It was contended that the obligation cast upon the University to hold an examination within 6 months both in terms of Regulation 7.7 and Regulation 12.3 (supra) was intended to ensure that such of the candidates as pass the supplementary examination held within 6 months are able to join the main batch and do not loose valuable time in completing the course within the outer limit of 4 ½ years stipulated under the Regulations. We have carefully considered that line of reasoning but regret our inability to accept the same. Note (a) of Regulation 7.8 of the Regulations does not, in our opinion, admit of any interpretation other than what is evident from a plain reading of the same. Passing of the first professional examination is made compulsory by the Regulations Civil Writ Petition No. 17820 of 2008 - 17 - before a candidate can go to Phase II of the training programme. It is manifest from a plain reading of the provisions that no candidate, who does not fulfil that requirement can claim the right to join Phase II of the training programme. We may at this stage straightaway mention that the petitioners in Civil Writ Petitions No. 18206, 18846 and 19120 of 2008 squarely fall within the mischief of that note as they have not admittedly passed the first professional examination, which is a sine qua non for proceeding to Phase II of the training programme. Their attempt to get into the Phase II of the Training Programme flies in the face of the statutory provisions mentioned above and cannot, therefore, succeed. The question whether the regulations framed by the MCI are mandatory is no longer res integra, the same having been authoritatively answered by the Supreme Court in Medical Council of India Vs. State of Karnataka, JT 1998 (5) SC 40. While dealing with the directory and/or mandatory nature of the Regulations framed by the MCI, the Court observed:- “Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to clauses (fa), (fb) and (fc) (which have been introduced by the Amendment Act of 1993 w.e.f. August 27, Civil Writ Petition No. 17820 of 2008 - 18 - 1992) and Clauses (j), (k) and (l) of Section 33.” (emphasis supplied). The above position was reiterated by a Constitution Bench of the Supreme Court in Dr.Preeti Srviastava Vs. State of M.P.and others, (1999) 7 SCC 120. Interpreting Entry