Bombay High Court
Dr. Kavyansh Bhan And Anr vs Union Of India Through The ... on 8 September, 2021
Bench: R.D. Dhanuka, R. I. Chagla
10-WP-5339-7659-2018.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5339 OF 2018
Dr. Kavyansh Bhan and Anr. ...Petitioners
Vs.
Union of India & Ors. ...Respondents
WITH
WRIT PETITION NO.7659 OF 2018
Dr Kirti Pawar ...Petitioner
Vs.
Union of India & Ors. ...Respondents
Mr. Pralhad D. Paranjape with Mr. Manish Kelkar and Ms.
Druti Datar for the Petitioner in both Writ Petitions.
Mr. Rui A. Rodrigues with Mr. D.P. Singh, for the Respondent
No.1 in both Writ Petitions.
Mr. Ganesh Gole with Mr. Ritesh Ratnam for the Respondent
No.2 in both Writ Petitions.
Mr. Naryan Sahu with Mr. Chirag Dave, Mr. Dnyaneshwar
Jadhav i/b. M/s. Legasis Partners for the Respondent
No.3 in both Writ Petitions.
CORAM: R.D. DHANUKA &
R.I. CHAGLA, JJ.
ORDER RESERVED ON 25TH AUGUST, 2021
ORDER PRONOUNCED ON 08TH SEPTEMBER, 2021.
J U D G M E N T ( Per R.I. Chagla, J. )
1. Rule.
10-WP-5339-7659-2018.DOC
2. The learned Counsel for Respondent Nos.1, 2 and
3 respectively waive service. Heard fnally by consent of
parties.
3. By these Writ Petitions fled under Article 226 of
the Constitution of India, the Petitioners are seeking the
quashing and setting aside of notifcation dated 22nd
January, 2018 published on 12th February, 2018 and issued
by the Respondent No.1 to the extent that Post Graduate
Diplomas (Orthopedics in Writ Petition No.5339 of 2018) and
(Ophthalmic Medicine and Surgery in Writ Petition No.7659
of 2018) being pursued by the respective Petitioners in the
Respondent No.3 - The College of Physicians and Surgeons,
Mumbai are de-recognized.
4. Both the Writ Petitions being almost identical and
challenging the said impugned notifcation dated 22nd
January, 2018 were heard together and are being disposed
off by a common order. For the sake of convenience, the facts
in Writ Petition No.5339 of 2018 are being adverted to.
10-WP-5339-7659-2018.DOC
5. Prior to December 2009, the Respondent No.1
had recognized a total of 10 posts of Post Graduate Diploma
and fellowships offered by the College of Physicians and
Surgeons. However, in the middle of the academic year,
Respondent No.1 vide notifcation dated 2nd December, 2009
de-recognized the ten medical qualifcations offered by the
College of Physicians and Surgeons. A corrigendum was
issued on 3rd February, 2010 by the Respondent No.1
clarifying that the de-recognition issued was to come into
effect from 2nd December, 2009 and which would mean that
the students who had taken admission before 2nd December,
2009 would not be adversely affected. It was further clarifed
by Respondent No.2 on its website that the students who got
admission prior to 2nd December, 2009 shall stand
recognized.
6. On 5th August, 2016, a committee was
constituted by the Respondent No.1 and Dr. Devi Shetty was
appointed as Chairman of the said committee to study the
curriculum of the College of Physicians and Surgeons diploma
and fellowship courses and provide recommendations for
recognition to these courses. The committee submitted its
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report on 7th October, 2016 justifying the need for granting
recognition to diploma and fellowship courses of College of
Physicians and Surgeons, Mumbai.
7. The Petitioner No.1 in January, 2017 completed
his MBBS course with internship from Nitte University,
Manglore which is recognized by Respondent No.2.
8. On 12th April, 2017, a meeting was held by the
Secretary, Ministry of Health and Family Welfare in which it
was decided that the diploma courses run by College of
Physicians and Surgeons will be included in the First
Schedule with condition that the courses will be reviewed
after every three years. The minutes of these meetings were
signed by the President of the Medical Council of India and
Chairman Academic Committee of the Medical Council of
India.
9. The Petitioner No.1 on 3rd October, 2017 through
the College of Physicians and Surgeons was allotted a seat at
Grant Medical Foundation Ruby Hall Clinic, Pune for Diploma
in Orthopedics (DORTHO).
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10. It is the Petitioners case that the Respondent
No.1 accorded permission to 39 Post Graduate Diplomas
Courses offered by College of Physicians and Surgeons by
notifcation dated 17th October, 2017, which included the
diploma course of the Petitioners. It is the further case of the
Petitioners that on 25th October, 2017, the post holding
certifcate was issued to the Petitioner No.1 by the
Respondent No.3 and receipt was issued acknowledging
payment of admission fees by the Petitioner No.1.
11. On 17th January, 2018, another committee was
constituted under the Chairmanship of Dr. B.D. Athani to
examine the standard of College of Physicians and Surgeons
Courses. It is stated by the Petitioners that the committee
again recommended granting recognition to various diploma
courses including those of the Petitioners. However, on the
basis of an objection / letter dated 2nd November, 2017 of the
Respondent No.2 - the Medical Council of India, the
Respondent No.1 issued notifcation dated 22nd January,
2018 de-recognizing 36 out of 39 courses of the College of
Physicians and Surgeons, Mumbai which had been
recognized on 17th October, 2017 by the Respondent No.1.
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Being aggrieved by the notifcation dated 22nd January,
2018, published on 12th February, 2018, the present Petition
has been fled.
12. Mr. Pralhad Paranjape, the learned Counsel
appearing for the Petitioners states on instructions that he is
not pressing the case of Petitioner No.2 in Writ Petition
No.5339 of 2018. He submits that in view of the Petitioner
No.1 in Writ Petition No.5339 of 2018 and the Petitioner in
Writ Petition No.7659 of 2018 having been admitted to their
diploma courses prior to the impugned notifcation dated
22nd January, 2018, which de-recognized these courses, the
Petitioners were entitled to undertake and complete these
Post Graduate Diplomas Courses conducted by the College of
Physicians and Surgeons. He has submitted that by the
notifcation dated 17th October, 2017, the Respondent No.1
had in exercise of powers conferred under Sub Section (2) of
Section 11 of the Indian Medical Council Act, 1956 (102 of
1956) hereinafter referred to as ("IMC Act") after consulting
the Respondent No.2 Medical Council of India made further
amendments in the First Schedule of IMC Act. By these
amendments, the diploma courses (2 years courses at the
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Post MBBS level) granted by the College of Physicians and
Surgeons, Mumbai and which included the diploma courses
taken by the Petitioners were recognized. The Diploma
Courses have been mentioned in the said notifcation and
against each diploma course it is stated that "this shall be
recognized medical qualifcation when granted by the College
of Physicians and Surgeons, Mumbai on or after December,
2009". He has submitted that this clearly goes to show that
the diploma courses undertaken by the Petitioners by the
notifcation dated 17th October, 2017 were recognized
diploma courses / recognized medical qualifcation when
granted by the College of Physicians and Surgeons, Mumbai
on or after December, 2009.
13. The learned Counsel for the Petitioners has
placed reliance upon the decision of the Division Bench of
this Court in case of Anita Kishanrao Videkar Vs. Union of
India & Ors.1. He has submitted that in view of decision, the
Petitioners are not pressing their challenge to the validity of
the impugned notifcation dated 22nd January, 2018 but
1 Writ Petition No.5348 of 2018 with companion matters decision
dated 24th February, 2021.
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have restricted the issue in these Petitions as to whether the
impugned notifcation applies prospectively and not
retrospectively. He has submitted that the Division Bench of
this Court in the said decision has held that the impugned
notifcation dated 22nd January, 2018 applied prospectively
and would not apply in the case of the Petitioners therein
who had not only been duly admitted to the course after
clearing the requisite CET, but even successfully completed
the entire two years of instruction of the course and at the
end of which many have even been duly assessed for their
performance at the fnal examination and on that basis, even
awarded the prestigious qualifcation of Secondary DNB
course. It was thus held by the Division Bench that it would
be too late in the day for the Petitioners to now be told that
since the recognition of their qualifying course was
retrospectively withdrawn by Union of India, their entire
fellowship of two years and successful prosecution of course
would be brought to a naught. It has been further held by the
Division Bench that for admissions for the academic year
2018-19 onwards, the diploma awarded by College of
Physicians and Surgeons, Mumbai may not be recognized as
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an acceptable qualifcation for admission to secondary DNB
Courses. It was noted by the Division Bench of this Court that
the Petitioners therein do not challenge the de-recognition of
diplomas awarded by College of Physicians and Surgeons,
Mumbai by the notifcation dated 22nd January, 2018.
14. The learned Counsel for the Petitioners has
thereafter placed reliance upon a decision of the Supreme
Court in the case of Suresh Pal and Ors. Vs. State of Haryana
& Ors.2. The Supreme Court was concerned in that decision
with a particular educational course undertaken by the
Petitioners therein. The Petitioners were admitted to the
educational course when the course was recognized and
somewhere along the line during the time they were
prosecuting the course, the course came to be de-recognized.
The Supreme Court accordingly held that when the
Petitioners were admitted to the course, it had requisite
recognition and thus it would be unjust for the Petitioners to
be told that their course had lost recognition. He has by
placing reliance on Suresh Pal (Supra) submitted that the
the facts in the present Petitions are similar to the facts in
2 (1987) 2 Supreme Court Cases 445.
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Suresh Pal (Supra). He has submitted that in the present
case, the Petitioners were also admitted to the diploma
courses when the courses were recognized and during the
time they were prosecuting the courses, the courses came to
be de-recognized. He has submitted that the decision of the
Supreme Court in Suresh Pal (Supra), makes it clear that it
would be unjust for the Petitioners to be told that their
diploma courses had lost recognition.
15. The learned Counsel for the Petitioners has
further submitted that the Division Bench of this Court, in
Anita Videkar (Supra) has in referring to the decision in
Suresh Pal (Supra) held that the facts in that case were even
at a better footing then the facts in Suresh Pal (Supra) as the
Petitioners had not only undertaken the courses but they had
even completed the courses after being declared as
meritorious candidate. He has submitted that the individual
qualifcation of secondary DNB courses had been held by the
Division Bench of this Court in Anita Videkar (Supra) to be
qualifcations duly obtained and the Petitioners were
declared to be individually eligible to pursue the secondary
DNB courses on the basis of the qualifying diploma held by
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them from the College of Physicians and Surgeons, Mumbai.
He has submitted that similarly the Petitioners in the present
Petitions too are required to be declared as individually
eligible to pursue the secondary DNB Courses on the basis of
qualifying diplomas held by them from the College of
Physicians and Surgeons, Mumbai as they too had recently
completed their Diploma Course. Further, these diploma
courses were recognized at the time when the Petitioners
were admitted to the diploma courses.
16. The learned Counsel for the Petitioners has
further relied upon the decision of this Court in the case of
Vidarbha Madhyamik Shikshak Sangh Vs. State of
Maharashtra & Ors.3. The Division Bench of this Court had
considered the issue as to whether withdrawal of
recognition / equivalence in regard to degree or diploma
retrospectively, is permissible or not. It was held therein that
this issue is no longer res integra and has been concluded by
the Division Bench of this Court in Narendra Sakharam
Jadahv Vs. State of Maharashtra4. It has been held that the
3 2003 SCC OnLine Bom 728.
4 (2000) 3 Mah LJ 806.
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withdrawal of recognition by Government Resolution cannot
be made applicable retrospectively and it can be made only
prospectively. The decision in Narendra Jadhav (Supra) in
turn placed reliance on the judgment of Suresh Pal (Supra).
The learned Counsel for the Petitioner has accordingly
submitted that the impugned notifcation dated 22nd
November, 2018 withdrawing the recommendation of the
diploma courses is required to be made applicable only
prospectively and not retrospectively.
17. He has submitted that the Committee constituted
under the Chairmanship of Dr. Athani on 17th January, 2018
to examine the standard of College of Physicians and
Surgeons, Mumbai diploma courses and which recommended
granting recognition to various diploma courses including
those undertaken by the Petitioners included the
representatives of the Medical Council of India. It is only that
by virtue of the prior objection / letter dated 2nd November,
2017 of the Medial Council of India that the Respondent No.1
issued the impugned notifcation de-recognizing 36 out of 39
diploma courses which had been prior recognized by
Respondent No.1. He has submitted that the impugned
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notifcation necessarily would have to apply prospectively
and cannot apply in the case of the Petitioners who were
admitted prior to the impugned notifcation and who have
been pursuing the diploma courses and in fact have now
completed the diploma courses.
18. Mr. Rui Rodrigues, the learned Counsel appearing
for Respondent No.1 submits that there is a window created
between the notifcation dated 17th October, 2017 issued by
the Respondent No.1 recognizing the diploma courses with
retrospective effect i.e. from December, 2009 and the
impugned Notifcation dated 22nd January, 2018 published
on 12th January, 2018. He states that the admissions taken
in such window can be saved. However, he has no clear
instructions from the Respondent No.1. In any event he
submits that after the de-recognition of the diploma courses,
students such as the Petitioners could have pursued the said
courses at their own risk.
19. Mr. Gole, learned Counsel appearing for the
Respondent No.2 - Medical Council of India has submitted
that for establishing a new medical college, the Applicant can
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only do so after obtaining prior permission from Central
Government under Section 10(A) of the IMC Act, 1956. The
permission granted by the Central Government for
establishment of the new medical college is based on the
recommendations of the Medical Council of India as per
Section 10(A) of the IMC Act and the Medical College
Regulations, 1999. Further, a medical college has to be
granted permission / recognition to conduct MBBS courses
by the Central Government and thereafter can only be
permitted to start higher courses of studies. He has placed
specifc reliance on relevant part of Section 11 read with
Section 10(B) of the I.M.C. Act, 1956 and which reads thus:-
"...................................
11.Recognition of medical qualifcations granted by
Universities of medical institutions of India.
1) The medical qualifcations granted by any
University or medical institution in India which are
included in the First Schedule shall be recognized
medical qualifcations for the purposes of this Act.
2) Any University or medical institution in India
which grants a medical qualifcation not included in
the First Schedule may apply to the Central
Government to have such qualifcation recognized,
and the Central Government, after consulting the
Council, may, by notifcation in the Offcial Gazette,
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amend the First Schedule so as to include such
qualifcation therein, and any such notifcation may
also direct that an entry shall be made in the last
column of the First Schedule against such medical
qualifcation declaring that it shall be a recognized
medical qualifcation only when granted after a
specifed date.
10B Non-recognition of medical qualifcations in
certain cases:-
1. Where any medical college is established except
with the previous permission of the Central
Government in accordance with the provisions of
Section 10A, no medical qualifcation granted to any
student of such medical college shall be a recognized
medical qualifcation for the purpose of this Act.
2. Where any medical college opens a new or higher
course of study or training (including a postgraduate
course of study or training) except with the previous
permission of the Central Government in accordance
with the provisions of Section 10A, no medical
qualifcation granted to any student of such medical
college on the basis of such study or training shall be
a recognized medical qualifcation for the purposes of
this Act.
3. Where any medical college increases its admission
capacity in any course of study or training except
with the previous permission of the Central
Government in accordance with the provisions of
Section 10A, no medical qualifcation granted to any
student of such medical college on the basis of the
increase of such medical capacity shall be a
recognized medical qualifcation for the purposes of
this Act.
.................................."
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20. He has submitted that only those medical
qualifcations granted by any University or Medical
Institution in India which are included in the First Schedule
shall be recognized and where they are not included in the
First Schedule, the Central Government may upon an
application from such University or Medical Institution, by
Notifcation in offcial Gazette amend the First Schedule to
include such medical qualifcation.
21. The learned Counsel for the Respondent No.2 has
further submitted that the Petitioners have based their
entire case upon the fact that the diploma courses pursued
by them were granted recognition by notifcation dated 17th
October, 2017. He has pointed out that a statement was made
by the Counsel for the Petitioners in Writ Petition No.5339 of
2018 that he is not pressing the case of Petitioner No.2,
which may be noted.
22. He has submitted that the Notifcation dated 17th
October, 2017 did not have the concurrence of the Medical
Council of India and it is upon the complaint made by the
Medical Council of India that Respondent No.1 reconsidered
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the notifcation dated 17th October, 2017 and thereafter
founded it appropriate to de-recognize the diploma courses
conducted by College of Physicians and Surgeons, Mumbai by
impugned notifcation dated 22nd January, 2018. He has
submitted that the Petitioners cannot take the beneft of the
notifcation dated 17th October, 2017, since the diploma
courses pursued by the Petitioners were de-recognized by the
impugned notifcation dated 22nd January, 2018. Further, he
has submitted that the notifcation dated 17th October, 2017
would not come to the aid of the Petitioners as the diploma
courses undertaken by the Petitioners and which were
conducted by the College of Physicians and Surgeons,
Mumbai were not recognized when the Petitioners had taken
admission in the said diploma courses. He has submitted that
it is an admitted position that the said diploma courses were
never recognized prior to December, 2009 and thus the
Notifcation dated 17th October, 2017 erroneously granted
recognition to such courses on or after December, 2009.
23. He has submitted that the decision of the Division
Bench of this Court in Anita Videkar (Supra) has been
decided on the facts of that case and is not applicable in the
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case of the Petitioners. He has submitted that in that case it
has been held that the Petitioners therein had not only been
duly admitted to the diploma course after clearing the
requisite CET, but even successfully completed the entire two
years instruction of course, at the end of which they had
been duly assessed for their performance at the fnal
examination and on that basis even awarded the prestigious
qualifcation of secondary DNB Course. It was thus held by
this Court that, it was too late in the day for the Petitioners to
be told that since the recognition of their qualifying course
was with retrospectively withdrawn by the Union of India,
their entire fellowship of two years and successful
prosecution of courses would be brought to a naught. He has
submitted that in the present case allotment letter dated 3rd
October, 2017 was issued to the Petitioner No.1 in Writ
Petition No.5339 of 2018 and allotment receipt dated 26th
August, 2017 issued to the Petitioner in Writ Petition No.7659
of 2018 by which admission to the diploma courses of the
College of Physicians and Surgeons, Mumbai was granted to
the Petitioners prior to the notifcation dated 17th October,
2017. He has submitted that the diploma courses which were
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undertaken by the Petitioners in both Petitions got erroneous
recognition subsequently on 17th October, 2017. It is an
admitted position that the said diploma courses had never
been recognized by the Central Government and / or the
Medical Council of India. Hence, there was no question of the
diploma courses being recognized in the case of the
Petitioners vide notifcation dated 17th October, 2017. The
said diploma courses pursued by Petitioners were incorrectly
recognized in the notifcation dated 17th October, 2017 as
there was no recognition to these diploma courses prior to
December, 2009 and upon noticing this error, the impugned
notifcation dated 22nd January, 2018 was issued by
Respondent No.1 de-recognizing such diploma courses. He
has accordingly submitted that there is no merit in these
Petitions and that the Petitions be dismissed.
24. He has relied upon the decision of the Division
Bench of this Court in Dr. Priya P Shah Vs. Union of India5
(Coram : S.C. Dharmadhikari and Bharati H. Dangre, JJ). In
the said decision this Court had noted the submission of the
learned Counsel for the Medical Council of India and
5 Writ Petition No.6751 of 2018 dated 13th July, 2018.
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particularly, the submission as to how the Government of
India had continuously ignored the opinion of the Medical
Council of India and included the courses which were the
subject matter of that Petition in the First Schedule to the
IMC Act. Further, the Medical Council of India has indicted
the College of Physicians and Surgeons in very strong terms.
The communication dated 22nd November, 2017 from the
Medical Council of India to the Government of India has been
referred to wherein it has been stated that the College of
Physicians and Surgeons, Mumbai is nothing but a society
and is not a recognized University or deemed University and
not governed by UGC Act, 1956. It does not have a full time
teaching faculty, proper building, hospital and other
infrastructural facilities for imparting teaching and training
to the students. This Court had come down very heavily on
the Union of India and it was observed that the history of
medical education in India reveals that the Union of India
hardly cares for the opinion of the expert body and rather
brushes it aside conveniently so as to accommodate some
courses / some institutions / some colleges. It was further
observed by this Court that if we go on permitting this, a day
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will come when a course of this nature and type will be
conducted on a road side or on the pavement without any
infrastructure. We do not want any MBBS doctor with such
qualifcation attached to his name viz. DCH (CPS), etc. It is
ultimately a patient who will be misled and he would consider
such doctors to be experts. The learned Counsel for the
Medical Council of India has accordingly submitted that the
diploma courses of the College of Physicians and Surgeons,
Mumbai ought not to have been recognized in the notifcation
dated 17th October, 2017 and such recognition was thereafter
rectifed in the impugned notifcation by de-recognizing these
courses.
25. The learned Counsel for the Respondent No.3 -
College of Physicians and Surgeons, Mumbai has referred to
the Committee Report of recommendation of courses dated
14th April, 2017 as well as the report of hand holding
committee dated 17th January, 2018 and has submitted that
the representatives of Medical Council of India was a part of
the discussions which the Committee had and upon which the
Committee recommended granting recognition to the
diploma courses of the Respondent No.3. However, he has
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admitted that the diploma courses pursued by the Petitioners
in the two Petitions were not recognized or included in the
First Schedule of the IMC Act prior to December, 2009.
26. Having considered the submissions, we are of the
view that the diploma courses undertaken by the Petitioners
in both the Writ Petitions viz. Post Graduate Diploma in
Orthopedics pursued by the Petitioners in Writ Petition
No.5339 of 2018 in the College of Physicians and Surgeons,
Mumbai and the Post Graduate Diploma Course in
Ophthalmic Medicine and Surgery pursued by the Petitioners
in Writ Petition No.7659 of 2018 in the College of Physicians
and Surgeons were never recognized by the Central
Government by their inclusion in the First Schedule prior to
December, 2009. Considering this position, the subsequent
notifcation issued on 17th October, 2017 granting
recognition to such diploma courses pursued by the
Petitioners in both Petitions on and from December, 2009
appears to have been incorrectly issued. Such recognition of
the diploma courses pursued by the Petitioners could have
only been given provided the said diploma courses had been
recognized prior to being de-recognized on 2nd December,
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2009. We fnd much substance in the submissions of the
learned Counsel for the Medical Council of India that there
was a mistake / omission on the part of the Central
Government in issuing the notifcation dated 17th October,
2017 since the said diploma courses pursued by the
Petitioners were never prior thereto recognized by the
Central Government in consultation with the Medical Council
of India as per the scheme of the IMC Act and the statutory
regulations made therein.
27. It is clear from reading of Section 11 that
recognition of medical qualifcation granted by medical
colleges can only be by their inclusion in the First Schedule of
the IMC Act. This is clear from the wording of Section 10(B)
which provides that no new or / higher course of study
opened by any medical college shall be granted recognition
except with the previous permission of Central Government
in accordance with any provisions of Section 10(A) and only
upon such previous permission of the Central Government
that such medical qualifcation shall be a recognized medical
qualifcation by their inclusion in the First Schedule of the
IMC Act. It is provided in Section 11 of the IMC Act that in
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the event that the University or medical institution in India,
grants a medical qualifcation not included in the First
Schedule, such University or Medical Institution may apply
to the Central Government to have such qualifcation
recognized and the Central Government after consulting the
Medical Council of India may by notifcation in the Offcial
Gazette amend the First Schedule so as to include such
qualifcation therein and any such notifcation issued may
direct that an entry shall be made in the last column of First
Schedule against such medical qualifcation declaring that it
shall be a recognized medical qualifcation only when granted
after a specifed date.
28. In view of the position that, the said diploma
courses pursued by the Petitioners in the College of
Physicians & Surgeons, Mumbai were not recognized in
conformity with Section 10 (A) 10(B) and Section 11 of the
IMC Act, such diploma courses could never have received the
subsequent recognition as it had received under the
notifcation dated 17th October, 2017 and that to from
December, 2009. From a reading of the notifcation dated
17th October, 2017 it appears that the Notifcation is issued in
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exercise of power conferred in Sub Section 2 (2) of Section
11 of the IMC Act, 1956 by the Central Government upon
consulting the Medical Council of India. However, the non-
consultation of the Medical Council of India has been noted
by this Court in decision relied upon by the learned Counsel
for the Medical Council of India viz. Dr Priya Shah (Supra),
wherein this Court has observed that the Central
Government continuously ignores the opinion of the Medical
Council of India and includes courses in the First Schedule to
the IMC Act. The Medical Council of India has indicted the
College of Physicians and surgeons in very strong terms and
this can be seen from its communication dated 2nd
November, 2017. This Court had observed that the two years
diploma courses being conducted by the College of Physicians
and Surgeons, Mumbai throws the entire medical education
in total disarray. This Court had therefore, directed the
Medical Council of India to set out corrective steps at its end.
It is in view of the Central Government issuing the
notifcation dated 17th October, 2017 which recognized the
diploma courses such as courses perused by the Petitioners
in both Petitions that the Medical Council of India issued
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objection letter dated 2nd November, 2017 to the Respondent
No.1 - Union of India for de-recognition of such diploma
courses. Acting upon such objection letter dated 2nd
November, 2017, the Respondent No.1 Union of India issued
the impugned notifcation dated 22nd January, 2018 de-
recognizing the said diploma courses of the College of
Physicians and Surgeons, Mumbai.
29. The larger issue has been addressed as to
whether the impugned notifcation dated 22nd January,
1980 operates prospectively or retrospectively and / or
whether it would apply to the admission of the Petitioners to
the diploma courses secured prior thereto. However, in view
of the position that the diploma courses were never
recognized prior to December, 2009, it would not be
necessary to go into the larger issue.
30. The decision of this Court in Anita Videkar
(Supra) cannot be applied to the case of the Petitioners. In
that case the diploma course was recognized as per
notifcation dated 17th October, 2017 on or after December,
2009. Further, the Petitioners have not only been duly
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admitted to such diploma course after clearing the requisite
CET but have successfully completed the entire two years
instruction of course, at the end of which many had even
been duly assessed for their performance at the fnal
examination and on that basis, even awarded the prestigious
qualifcation of Secondary DNB Course. In view of the above
facts, the Division Bench of this Court held that it was too
late in the day for the Petitioners to now be told that since
recognition of their qualifying course was retrospectively
withdrawn by the Central Government, their entire
fellowship of two years and successful prosecution of the
courses would be brought to a naught. In the present case the
Petitioners had been admitted to the diploma courses of the
College of Physicians and Surgeons three months prior to the
impugned notifcation being issued on 22nd January, 2018
de-recognizing these courses. The Petitioners thereafter
pursued the de-recognized diploma courses and have
recently completed them. Thus, the fnding of the Division
Bench is not applicable to the case of the Petitioners.
31. The decision of the Supreme Court in Suresh Pal
(Supra) was in the context of a particular educational course
10-WP-5339-7659-2018.DOC
to which the Petitioners had been admitted at the time when
the course was recognized and somewhere along the line,
during the time they were prosecuting the course, the course
became de-recognized. It is in this context that the Supreme
Court held that when the Petitioners were admitted to the
course, it had the requisite recognition, it would be,
therefore, unjust for them to be told that their course had lost
recognition. This decision also does not apply in the facts of
the present case as the Petitioners were admitted to a course
which had no recognition under the provisions of the IMC Act
and by the notifcation dated 17th October, 2017, there was a
clear error in including such diploma courses which had not
being recognized prior thereto and giving them recognition
on or after December, 2009. The 10 medical qualifcations
which had been de-recognized on 2nd December, 2009 were
the only courses which could have been recognized on or
after December, 2009 by the said Notifcation dated 17th
October, 2017. Admittedly the diploma courses pursued by
the Petitioners in the College of Physicians and Surgeons,
Mumbai were clearly not part of the ten medical
qualifcations. In our view, the said notifcation dated 17th
10-WP-5339-7659-2018.DOC
October, 2017 could not have granted such recognition to the
diploma courses pursued by the Petitioners as these diploma
courses had not been recognized prior thereto. The said
diploma courses were also not included in the First Schedule
to the IMC Act, 1956 prior to December, 2009 and could not
be included by way of the notifcation dated 17th October,
2017.
32. The decision of this Court in Vidarbha (Supra)
relied upon by the learned Counsel for the Petitioners will not
come to the aid of the Petitioners. In the said decision it has
been held that the Government Resolution withdrawing
recognition / equivalence in regard to degree or diploma
courses cannot be made applicable retrospectively and can
be made applicable only prospectively. Considering that the
diploma courses pursued by Petitioners in both Petitions had
not received any recognition prior to December, 2009, it
would be immaterial as to whether the impugned notifcation
dated 22nd January, 2018 applied retrospectively or
prospectively in so far as the Petitioners case is concerned.
Thus, this issue is not required to be determined in this
Petition.
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33. We have noted the fact that the Petitioners have
already completed the diploma courses pursued by them in
College of Physicians and Surgeons, Mumbai. The Petitioner
No.1 in Writ Petition No.5339 of 2018 has completed diploma
course in Orthopedics in July, 2021 and the Petitioner in Writ
Petition No.7659 of 2018 had completed the diploma course
in Ophthalmic Medicine and Surgery in October, 2020. Such
completion of the diploma courses would be an immaterial
fact considering that the diploma courses was admittedly not
recognized prior to December, 2009. In view thereof, no
equity can be claimed by the Petitioners in completing their
diploma courses of the College of Physicians and Surgeons,
Mumbai. We do not fnd any merit in any of these Writ
Petitions and accordingly the Writ Petitions are dismissed.
There shall be no order as to costs.
( R. I. CHAGLA J. ) (R.D. DHANUKA, J.)
