Ms. Anuradha Saini And Ors., Ms. ... vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 1022 Del

JUDGMENT

S.B. Sinha, C.J.

1. In all these writ petitions, a common question namely vires of the Indian Medical Council (Amendment) Act, 2001 is involved.

FACTS:

2. The petitioners are studying MD Physician Degree from Odessa Pirogove Medical University, Ukraine (hereinafter referred to as 'the Ukraine University'). The degree of MD granted by the Ukraine University is recognised by the Medical Council Act and allegedly is considered to be equivalent to MBBS degree awarded in India. The petitioners joined the said courses of studies in the year 1995-96. The courses they were required to undergo were one year's preparatory course and six years regular course, the last year being considered to be that of internship. According to the petitioners, they at the time of joining the said course, were governed by the provisions of law and the rules and regulations prevailing at the relevant time in terms whereof upon completion of the said course, they would have become entitled to provisional registration in terms of Section 25 of the Medical Council of India Act (hereinafter called for the sake of brevity "the Act") without any requirement to comply with any further test.

3. By reason of the Indian Medical Council (Amendment) Act, 2001 in terms whereof, inter alia, Section 13(4A) has been inserted, they have, however, been made liable to appear in a screening test.

4. The principal contentions raised in these writ petitions is that Sub-section 13(3) of the Act cannot be given a retrospective effect so as to take away the vested or accrued right of the petitioners and/or impose a new obligation upon them. It is urged that Screening Test Regulations 2002 which have been made pursuant to the said amending Act having been given retrospective effect, they are liable to be declared ultra vires under Article 14 of the Constitution of India.

5. The contention of the respondents, on the other hand, as would appear from their counter-affidavit filed is that having regard to the fall in standard of education imparted in the Universities of Ukraine and other foreign universities and/or the fake degrees which are being produced, the said Amendment Act had to be enacted. It has been pointed out that the Government of India as also the Medical Council of India gave a warning to the students by issuing requisite advertisements in the newspapers that the students should not get any admission in medical courses through private agencies and if they do so, the same would be at their own risk.

6. It has been further been pointed out that a writ petition was filed by one Study Abroad Education Consultants Pvt. Ltd., allegedly the official representative of the Ministry of Health of the Russian Federation to select students for the medical universities in Russia, in this court which was marked as CW 3402/97 and a learned Single Judge of this court by a judgment dated 1st December 1997 (since reported as Study Abroad Educational Consultants Pvt. Ltd. v. Union of India, , observed:

"12. In these circumstances, the question that falls for consideration is whether the petitioner could seek a restraint on such a public notice or advertisement being issued by the respondents. There can be no dispute that the factum of continuance of recognition of these medical institutes is under review. The Medical Council of India has recommended de-recognition of degrees of these institutes and the decision is to be taken by the Central Government. During this interregnum the students, who may unwittingly and in the belief that recognition would continue, may get private sponsorship either by the petitioner or otherwise for pursuing their studies in the former USSR. These advertisement and notices are serving public interest in advising and forewarning the students with regard to the actual status regarding review and recognition of the medical institutions. The petitioners, in these circumstances, cannot make out a grievance out of a public notice or advertisement, informing the students or public at large of the factual situation on the ground that it is detrimental to its business and commercial interest.

13. In my view, the Medical Council of India would be failing in its duty if the risks entailed in future in pursuing medical education in erstwhile USSR and CIS countries at the present juncture are not made publicly known."

7. In the In the Letters Patent Appeal being LPA No. 96/1998 taken thereagainst, a Division Bench of this Court by order dated 1st December 1997 observed that the Government can take a decision in the matter of recognition or de-recognition of the institutions in Russia after consulting the medical Council of India.

8. Pursuant to the said direction, the Central Government filed two affidavits dated 1st April 1999 and 26th April 2000 in this regard informing that instead of going in for de-recognition in the erstwhile USSR, a system of pre-screening of the students desirous of taking admission in the medical institutions in foreign countries along with a system of post-screening of the student who are coming back in India after obtaining a degree from abroad, would be introduced.

9. Pursuant to such an assurances given to this court by the respondents in the said affidavit, the Act was amended which was notified on 3rd September 2001. In terms of the provisions of the said Amending Act, Screening Test Regulations, 2002 were framed. The said Regulations were framed with the approval of the Central Government and have been notified in the Official Gazette by the Medical Council of India on 18th February 2002.

10. The respondents have contended that the Apex Court, in Civil Appeal No. 2779/2000 - Medical Council of India v. Indian Doctors from Russia Welfare Association and Ors., , has clearly approved the said policy decision and directed in exercise of its power under Article 142 of the Constitution of India that the same would apply to all institutions irrespective of the fact as to whether they wee parties thereto or not. It is, therefore, submitted that this court in the afore-mentioned situation should not entertain this writ petition.

SUBMISSIONS:

11. Dr. A.M. Singhvi, learned senior counsel appearing on behalf of the petitioners had taken us through the provisions of the Indian Medical Council (Amendment) Act, 2001 and submitted that having regard to the fact that a retrospective effect has been given thereto as a result whereof vested rights/accrued rights or benefits have been taken away and/or as thereby additional burden has been imposed, the same would be ultra vires Article 14 of the Constitution of India.

12. Reliance in this connection has been placed on Ex. Capt. K.C. Arora and Anr. v. State of Haryana and Ors., , Union of India and Ors. v. Tushar Ranjan Mohanty, and In Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors., .

13. Dr. Singhvi would urge that before the said amendment came into effect, the degrees granted by the universities per se were recognised in the event, they were specified in part II of the Third Schedule. Dr. Singhvi would argue that the holders of the foreign degrees were a class by themselves and as by reason of the amending Act, a sub-class has been created in terms whereof those who would pass out after the cut-off date will have to undergo a screening test, but no such test would be necessary for them who would obtain a degree prior thereto. In any event, the learned counsel would contend that the intention of the Medical Council of India being to put an end to grant recognition of such degrees, action could have been taken only in terms of Sub-section (4) of Section 19 of the Act.

14. Section 19(4), the learned counsel would argue, must be read contextually with Sections 15 and 25 thereof.

15. Eligibility of admission and eligibility of enrolment having been fixed in terms of the provisions of the Act and the petitioners having taken admission to the Ukraine University pursuant to or in furtherance of the provisions as they existed, they cannot be deprived of their right to continue their studies and obtain degrees which were to be recognised by the Medical Council of India. The learned counsel would contend that in the afore-mentioned situation, the impugned amending Act and consequentially the impugned Regulations must either be held to be bad in law or the same be read down so as to hold that those who had taken admission prior to they came into force, are not required to pass the screening test in terms thereof.

16. It was argued that in any event, the petitioners come within the purview of the guidelines framed by the Supreme Court of India. It was urged that the Apex Court was considering the cases of such students who formed a class by themselves inasmuch as they had been undergoing the courses of studies which were less than six years' duration and in that view of the matter, the said decision would not be applicable in the instant case.

17. In any event, contends the learned counsel, the decision of the Apex Court having been rendered under Article 142 of the Constitution of India can neither supersede the Constitutional protection guaranteed to a citizen nor thereby a right to agitate a new question can be taken away. The decision of the Apex Court, argues the learned counsel, would not be a binding precedent on a question which had not been considered. Reliance in this connection has been placed on State of UP and Anr. v. Synthetics and Chemicals Ltd. and Anr., .

18. Mr. Jayant Bhushan, the learned counsel appearing for the respondents, took us through the counter-affidavit filed on behalf of the respondents and would submit that no departure from the decision of the Apex Court would be permissible only because the petitioners have questioned the vires thereof. In any event, the learned counsel would contend that the amending Act is not retrospective but prospective in nature. Strong reliance in this connection has been placed on Punjab University v. Subash Chander and Anr., . Alternatively, it was submitted that the petitioners herein having not acquired any vested right, the retrospectivity granted in terms of the amending Act cannot be held to be ultra vires the Constitution of India. It was submitted that a delegated legislation can be held to be unconstitutional on the same grounds as are applicable to the legislative acts. Reliance in this connection has been placed on Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors., .

19. The learned counsel would contend that the legislature in its wisdom is entitled to fix a cut-off date wherefor no reason is required to be assigned.

CORE ISSUE

20. The short question which arises for consideration is as to whether by reason of the Indian Medical Council (Amendment) Act, 2001 and the Regulations framed there under any vested and/or they have been imposed with any additional burden or obligation.

RELEVANT STATUTES

21. Before proceeding to consider the matter, a survey of the relevant provisions of the Medical Council of India Act and the amendments made therein be made.

"The statement of objects and reasons of the MCI Act, are as under:-

(a) to give representation to licentiate members of the medical profession, a large number of whom are still practicing in the country;

(b) to provide for the registration of the names of citizens of India who have obtained foreign medical qualifications which are not at present recognised under the existing Act;

(c) to provide for the temporary recognition of medical qualifications granted by medical institutions in countries outside India with which no scheme of reciprocity exits in cases where the medical practitioners concerned are attached for the time being to any medical institution in India for the purpose of teaching or research or for any charitable object;

(d) to provide for the formation of a Committee of Postgraduate Medical Education for the purpose of assisting the Medical Council of India to prescribe standards of post-graduate medical education for the guidance of universities and to advise universities in the matter of securing uniform standard for postgraduate medical education throughout India;

(e) to provide for the maintenance of an all-India register by the Medical Council of India, which will contain the names of all the medical practitioners possessing recognised medical qualifications.

That some of the sections of the MCI Act, relevant for the controversy in hand, are as under:-

(i) Section 2(e) of the MCI Act defines a 'Medical Institution' to mean any Institution within or without India which grant degrees, diplomas or licenses in medicine.

(ii) Section 2(h) of the Act defines in 'recognised medical qualification' to mean any of the medical qualifications included in the three Schedules to the said MCI Act, namely;

(a) The First Schedule relates to the recognised medical qualification granted by the Universities or Medical Institutions in India and as provided by Section 11 of the MCI Act.

(b) The Second Schedule recognizes the medical qualification granted by Medical Institutions outside India in accordance with the provisions of Section 12 of the MCI Act.

(c) The Third Schedule is divided into two(2) parts, Part I and Part II. It provides for the recognition of medical qualification granted by Medical Institutions not included in the First and the Second Schedule, in accordance wit the provisions of Section 13 of the MCI Act.

(iii) Section 3 of the MCI Act provides for the constitution and the composition of the Council and its members and the manner and mode in which the said members are to be nominated or elected to the said Council.

(iv) Section 6 prescribes the Council to be a body corporate by the name of 'Medical Council of India' having perpetual succession and a common seal capable of suing and being sued.

(v) Section 10A inserted by Act 31 of 1993 provides that no person shall establish a Medical College or no Medical College shall open a new or higher course of study or training or increase its admission capacity in any course of study or training except with the previous permission of the Central Government obtained in accordance with the provisions of the this Section. The said Section further lays down the manner and the mode in which such permission is required to be obtained from the Central Government.

(vi) Section 10B also inserted by Act 31 of 1993, provides that no medical qualification granted to any student shall be recognised in the event, the Medical College granting the said Degree is established without the previous permission of the Central Government.

(vii) Section 11 prescribes that the medical qualifications granted by any University or Medical Institution in India which are included in the First Schedule shall be recognised medical qualification for the purposes of MCI Act.

The First Schedule, as stated above, includes therein medical qualifications which are granted by any of the University or Medical Institutions in India. Such qualifications by virtue of Section 11 of the MCI Act shall be recognised medical qualifications for the purposes registration under the provisions of MCI Act.

(viii) Section 12 deals with the recognition of the medical qualification granted by Medical Institutions in countries with which there is a scheme of reciprocity. Medical qualifications granted by the Medical Institution outside India, which are included in the Second Schedule are recognised medical qualification for the purposes of the MCI Act.

(ix) Section 13 as it stood before the amendment carried out by Act 34 of 2001, dealt with recognition of medical qualification granted by certain Medical Institutions whose qualifications were not included in the First or the Second Schedule.

(x) Section 13(1) provides that the medical qualification granted by Medical Institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognised medical qualification for the purposes of the MCI Act.

(xi) Section 13(3) before it was amended by Act 34 of 2001, provided that the medical qualifications granted by Medical Institutions outside India which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of the MCI Act. It further provided that the person to be entitled to enrolment on any State Medical Register had to fulfill the following conditions, namely:

(i) That the said person is a citizen of India, and;

(ii) the said person has undergone such practical training after obtaining concerned qualifications as may be required by the rules or regulations in force in the country granting the qualifications;

or

In the event the said person has not undergone the aforesaid practical training, the said person has accordingly undergone such practical training as may be prescribed.'

(xii) However, after amendment, carried out by Act 34 of 2001 the amended Sub-section 3 of Section 13 reads as under:

The medical qualifications granted by medical institutions outside India (before such date as the Central Government may, by notification in the Official Gazette, specify) which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualifications shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required byu the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country he has undergone such practical training as may be prescribed.

(xiii) The Amending Act 34 of 2001 also inserted Sub-section 4A, 4B and 4C to Section 13 of the MCI Act."

Sub-section 4A of the Section 13 as inserted by Act 34 of the 2001 provides that a person who is a citizen of India and has obtained medical qualification granted by any Medical Institution in any country outside India, after such date as may be specified by the Central Government under Sub-section 3, shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualifies the screening test in India prescribed for such purposes. Such medical qualification obtained by the said person, shall be deemed to be recognised medical qualification for the purposes of this MCI Act for that person after the qualifies the so called screening test.

Section 4A of Section 13, as inserted by Act 34 of 2001, reads as under:-

A person who is a citizen of India and obtains medical qualifications granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under Sub-section (3), shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualifies the screening test in India prescribed for such purposes and such foreign medical qualification after such person qualifies the said screening test shall be deemed to be the recognised medical qualification for the purposes of this Act for that person.

(xiv) Sub-section 4B of Section 13 which is also inserted by Act 34 of 2001, provides that any person who is a citizen of India shall not, after such date as may be specified by the Central Government under Sub-section 3, be eligible to get admission from any Medical Institution in any foreign country without obtaining 'Eligibility Certificate' issued to such person by the Council.

The said Sub-section 4B is as under:

"A person who is a citizen of India shall not, after such date as may be specified by the Central Government under Sub-section (3), be eligible to get admission to obtain medical qualification granted by any medical institution in any foreign country without obtaining an eligibility certificate issued to him by the Council and in case any such person obtains such qualification without obtaining such eligibility certificate, he shall not eligible to appear in the screening test referred to in Sub-section 4A."

(xv) Section 15 confers a right on a person having the medical qualifications listed in any of the Schedules, for enrolment on any State Medical Register which reads as under:-

"(1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical register.

(2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register,-

(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;

(b) shall practice medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner.

(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 (1 of 1872) on any matter relating to medicine.

(3) Any person who acts in contravention of any provisions of Sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

(xvi) Section 19 deals with the circumstances under which the recognition granted to the Medical Institution or University can be withdrawn by the Central Government.

(xvii) Section 19A provides for prescribing the minimum standards of medical education required in granting recognised medical qualification (other than post graduate medical qualification) by Universities or Medical Institutions in India.

(xviii) Section 25, inter alia, dealing with the provisional registration provides that a citizen of India on producing proper evidence that he has been selected for practical training in an approved Institution, shall be entitled to be registered provisionally in a State Medical Register and shall be entitled to practice medicine.

The said Section reads as under:-

"(1) A citizen of India possessing a medical qualification granted by a medical institution outside India included in Part II of the Third Schedule, who is required to undergo practical training as prescribed under Sub-section (3) of Section 13, shall, on production of proper evidence that he has been selected for such practical training in an approved institution, be entitled to be registered provisionally in a State Medical Register and shall be entitled to practice medicine in the approved institution for the purposes of such training and for no other purpose.....

(2) A person registered provisionally as aforesaid who has completed practical training referred to in Sub-section (1) or who has been engaged for the prescribed period in employment in a resident medical capacity in any approved institution or in the Medical Service of the Armed Forces of the Union, as the case may be, shall be entitled to registration in the State Medical Register under Section 15."

(xix) Section 32 empowers the Central Government to make rules to carry out the purposes of the Act.

(xx) Section 33 further provides that the Council may, with the previous sanction of the Central Government would have the power to make regulations, inter alia, providing for any or all of the instances mentioned there under.

FINDINGS

22. The legislative changes have been made pursuant to a policy decision taken by the Union of India. It is not in dispute that a Memorandum of Understanding was arrived at between the Medical Council of India and the erstwhile USSR in terms whereof candidates used to be sponsored for studies in medicines up to the year 1990. Consequent upon disintegration of USSR in 1991 and medical institutions in the erstwhile USSR attaining autonomous status, such sponsorship of students was stopped.

23. The Council allegedly observed decline in the standard of medical education imparted in the said institutions. It further took into consideration the problems which used to arise out of commercial exploitation of medical education by private agencies. It, therefore, took a decision to recommend to the Union of India for de-recognition of 29 institutions in the erstwhile USSR included in part II of the Third Schedule appended to the Act. However, as those students sponsored by the Council in terms of the Memorandum of Understanding had not completed their studies, they recommended withdrawal of recognition of those institutions after 31st December 1997. In lieu of such recommendations, two advertisements - one by the Central Government and another by the Medical Council of India, were issued in the following terms:

"MINISTRY OF HEALTH AND FAMILY WELFARE (Department of Health) New Delhi Beware of Private Agencies Recruiting students for medical courses in Russian Federation

The Government of India in the Ministry of Health and Family Welfare does not recognize any agreement signed by any private agency with Russian Ministry of Health and Medical Industry. No private agency has been authorised by the Government of India to select students for admission in Under-Graduate and Post- Graduate Medical Courses in Russia and other C.I.S. countries. The student approaching such private agencies for admissions in medical courses in Russia and other C.I.S. countries will be doing so at their own risk and the Government of India will not be responsible for any consequences of their joining medical courses through private agencies.

(ALOK PRETI) DIRECtor (ME) GOVT. OF INDIA

DAVP 550(47)94"

24. As noticed hereinbefore, the Central Government in LPA 96/98 undertook to issue a policy decision. In the counter-affidavit filed before this court, it was stated that such policy decisions had been taken after taking into account the following factors:

"(i) Besides the decline in the standard of education reported by the Medical Council of India in respect of medical institutions in the CIS countries, the Council also came upon a number of cases where the student had produced fake medical degrees from abroad and the Council has filed FIR with the Police authorities against such candidates.

(ii) Unlike the medical institutions in India, it is not possible for Medical Council of India to conduct periodical inspection of the institutes recognised by them abroad to ensure maintenance of standard of medical education.

(iii) There were as many as 40 requests pending with the Medical Council of India received from various medical institutes situated in many countries for recognition of their degrees by Medical Council of India, however, due to financial and administrative constraints it was not possible for the Council to visit each institution abroad for the purpose of their recognition.

(iv) Due to difference in standard of medical education from country to country there is no yardstick available with the Medical Council of India to assess the standard of education abroad.

(v) In most of the countries of the world like UK, USA and some of our neighbouring countries a screening test is held before any person with foreign medical qualification is registered in that country. There is no reason why a similar system cannot be adopted in India."

25. In pursuance to the said policy decision, the Act, as noticed hereinbefore, was amended. The Central Government framed Screening Test Regulations, 2002, a copy whereof is contained in Annexure R/7 to the counter-affidavit and eligibility requirement for taking admission for an Undergraduate Medical Course in Institutions Abroad Regulations, 2002, the main provisions whereof are:

(i) An Indian citizen possessing a primary medical qualification awarded by any of the medical institutions outside India and desirous of getting provisional permanent registration with the Medical Council of India or any State Medical Council on or after 15.3.2002 shall have to qualify a Screening test conducted by the prescribed authority for the purpose of their registration in India. A person seeking permanent registration shall not have to qualify the Screening test if he or she had already qualified the same before getting his or her provisional registration.

(ii) The primary medical qualification possessed by the Indian citizen should be recognised medical qualification for enrolment as medical practitioner in the country in which the institution awarding the said qualification is situated.

(iii) Any Indian citizen who is desirous of taking admission in an under graduate medical course abroad on or after 15th March, 2002 shall have to obtain an Eligibility Certificate from the MCI stating that he or she fulfills the minimum eligibility criteria laid down by the MCI for admission in MBBS course in India. He shall also have to produce the same at the time of appearing in the Screening test, after completion of his degree abroad, for the purpose of obtaining registration in India.

26. Before we proceed to consider the question of constitutionality of the amending Act, the Statement of Objects and Reasons thereof may be noticed, which are to be following effect:

"The Indian Medical Council Act, 1956 contains provisions in Section 12, 13 and 14 with a view to recognizing medical qualification granted by medical institutions in foreign countries.

2. Over a period of time it has come to the notice that a large number of private agencies sponsor students for medical studies in institutions outside India for commercial considerations. Such students also include the student who did not fulfill the minimum eligibility requirements for admission to medical courses in India. Serious aberrations have been noticed in the standards of medical education in some of the foreign countries which are not at par with the standards of medical education available in India. Due to lack of uniformity in the standards of medical education in various foreign countries, it has been decided that a provision should be made in the Indian Medical Council Act, 1956 to enable the Medical Council of India to conduct a screening test in order to satisfy itself with regard to the adequacy of knowledge and skills acquired by citizens of India who obtain medical qualifications from universities or medical institutions outside India before they are granted registration to practice medicine in India.

3. Further, issue of prior eligibility certificate by the Medical Council of India would ensure that only those candidates who conform to the Council norms of admission to the medical college in India would go for under-graduate medical education outside India.

4. The Bill seeks to achieve the above objects.

C.P. THAKUR

NEW DELHI:

THE 2ND MARCH, 2001"

27. The questions posed in these writ petitions are to be considered in the afore-mentioned backdrop of events. By reason of the amending Act, the words "before such date as the Central Government may, by notification in the Official Gazette, specify" had been inserted before the words "granted by medical institutions outside India" and which are included in Part II of the Third Schedule. By reason of Sub-section (4A) of Section 13, an embargo has been placed to the effect that after such date as may be specified by the Central Government, no person shall be entitled to be enrolled in any Medical Register unless the qualifies the screening test in India prescribed for such purpose. It is not in dispute that 15th March 2001 is the date specified by the Central Government.

28. By reason of a Parliamentary enactment, it is trite, even a vested right or accrued right can be taken away.

29. In Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors., (supra), the position of law in this regard was stated in the following terms:

"20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

.....

.....

24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at the time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon v. Union of India, ; B.S. Yadav v. State of Punjab, and State of Gujarat v. Raman Lal Keshav Lal Soni .

25. In these cases we are concerned with the pension payable to the employees after their retirement. The respondent were no longer in service on the date of issuance of the impugned notifications. The amendments in the rules are not restricted in their application in futuro. The amendments apply to employees who had already retired and were no longer in service on he date the impugned notifications were issued."

30. By entering into courses of studies, does a student get a vested right or a benefit? The answer thereto must be rendered in the negative. The standard of medical education is determined by the medical Council of India. In the event, the Medical Council of India finds fall in standard in the matter of imparting of medical education, indisputably it has the right to take appropriate action in the matter. What would, however, be the nature of such action depends upon the facts and circumstances of each case.

31. In the instant case, an action has been taken by the legislature. It may be true that such actions could also be taken in terms of the provisions of Section 19 of the Act but only because the Medical Council of India has additional power to de-recognise a degree from a specified date in terms of Sub-section (4A) of Section 19, the same by itself, in our opinion, would not be a ground to hold that the amending Act of 2001 itself is unconstitutional. Recognition of a degree continues so long the institution fulfills the conditions laid down under the statute. By reason of a provision of a statute, the standard of education can be prescribed. There, thus, cannot be any doubt whatsoever that the Parliament must also be held to have the legislative competence also to alter such conditions. It is not a case where the petitioners have already obtained a degree and which became a recognised one by reason of operation of the provisions of statute, the said right which is a vested one cannot be taken away. The petitioners, in this case are yet to obtain a degree. Unless and until they obtain a degree, the question of their right of start medical practice in India can neither be said to be vested nor accrued. Even by reason of a statute, or in terms of the Rule framed under proviso to Article 309 of the Constitution of India, retrospectivity can be given so as to alter the terms and conditions of service.

32. In K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr., , the Apex Court clearly held that by reason of abolition of posts, a right of life and liberty is not taken away. If by reason of abolition of a post, the right of an employee to continue in employment can be taken away, there is no reason as to why the degrees which were prior to the enactment of the Amending Act were recognised in terms of the Section 13 can be subjected to a further rigour.

33. In Punjab University v. Subash Chander and Anr., , a three-Judge Bench of the Apex Court was dealing with the question where the student was admitted in 1965 in terms whereof 50% marks as the minimum marks were required to pass in each subject. The said provision was amended to the effect that instead and in place of aggregate marks, the grace marks would be given in all papers. Such a provision was held not to have any retrospective effect. Without multiplying decisions, we may quote the following excerpt from G.P. Singh's Principles of Statutory Interpretation, at page 369:

" The rule against retrospective construction is not applicable to a statute merely "because a part of the requisites for its action is drawn form time antecedent to its passing". If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act is, therefore, not retrospective merely because it applies also to those to whom pre-amended Act was applicable if the amended Act has operation from the date of its amendment and not from an anterior date. But this does not mean that a statute which takes away or impairs any vested right acquired under existing laws or which creates anew obligation or impose a new burden in respect of past transactions will not be treated as retrospective. Thus to apply an amending Act, which creates a new obligation to pay additional compensation, to pending proceedings for determination of compensation for acquisitions already made, will be to construe it retrospective which cannot be done unless such a construction follows form express words or necessary implication."

34. If the petitioners have no vested right, the retrospective effect even if given by the reason of the amending Act, cannot be held to be bad in law. The inhibition against retrospective construction is not a rigid rule and must vary secundum materium (See Barbar v. Piden, (1937) 1 AII ER, 126 and Carson v. Carson, (1964) 1 All ER 681, p. 687).

35. Furthermore, by reason of the amending Acts and the Regulations framed there under, the petitioners are not being debarred from starting any medical practice in India but they are merely to undergo a screening test as provided for in the statutory regulations. As has been noticed hereinbefore, such screening tests are required to be undergone in several countries where doctors from abroad with a foreign degree intend to start medical practice.

36. The next question which arises for consideration is as to whether the cut-of date was fixed off the hat so as to be rendered unconstitutional. It is not in dispute that such a cut-of date can be provided in terms of he provisions of the statute. In University Grants Commission v. Sadhana Chaudhary and Ors., . It has been observed therein:

"21...It is settled law that the choice of date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. when it is seen that a line ore a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works at p. 579 and Sushma Sharma (Dr) v. State of Rajasthan

37. If a cut-off date can be fixed by the legislature, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the statute seeks to achieve. such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India.

38. Whenever such a cut-off date is fixed, a question may be raised as to why a person would suffer only because he comes within the wrong side of the cut-off date but only because some persons or a section of society would face hardship by itself cannot be a ground to hold that the cut-off date is ultra vires the Constitution.

39. In the afore-mentioned background, the decisions cited by Dr. Singhvi may be considered.

40. In Ex. Capt. K.C. Arora and Anr. v. State of Haryana and Ors., , he facts involved, as stated in paragraphs 3 to 5 of the reported decision, reveal that by reason of certain concessions granted in the matter of recruitment of Army, the commissioned officers who were in the India Army for more than five years and after their release there from, became entitled to benefit vested in them under conditions of service. In that situation, an amendment made in Rule 2 of the Punjab National Emergency (Concessions) Rules, 1965 amending the expression 'military service' came up for consideration. The Apex Court referred to its Constitutional Bench decision in State of Gujarat v. Raman Lal Keshav Lal Soni, D(1983) SCC 33 and held that an accrued right cannot be taken away by making amendment of he rules with retrospective effect.

41. In Union of India and Ors. v. Tushare Ranjan Mohanty (supra), the apex court was concerned with a rule made under proviso to Article 309 of the Constitution of India in terms whereof a vested right had been taken away with retrospective effect. It was held that by reason of the amended Rule 13 of the Indian Statistical Service Rules, 1961 whereby and whereunder a policy of reservation had been introduced with retrospective effect as a result whereof the vested right of several persons had been taken away, was not sustainable. Such is not the position here.

42. Furthermore, in the instant case, the Central Government has clearly come out with a definite policy. The executive policy has been given the shape of legislative policy. such legislative policy, having regard to the purposes and objects, he Medical Council of India Act seeks to achieve, can neither be said to be unreasonable no arbitrary in terms whereof a student obtaining a degree from a foreign university is subjected to a screening test. The Central Government in its counter-affidavit has categorically stated that having regard to the several constraints and other limitations it is not possible for it to visit all the universities. It has to consider the standard of education imparted in those universities on the basis of the materials placed before it.

43. The Medical Council being an expert body, if a policy decision has been taken by it as regards the necessity of asking a student having a degree form some foreign universities to undergo a screening test, no fault can be fund therewith. The said policy decision has also been upheld by the Apex Court in Medical Council of India v. Indian Doctors from Russia Welfare Association and Ors. (supra) to the extent that subject to the guidelines issued by the Apex Court, the validity thereof has been upheld and as such, the same would be a law which would be binding on this court.

44. For the views we have taken, it is not necessary for this court to consider other contentions raised by learned counsel for the parties. These writ petitions are, therefore, dismissed but in the facts and circumstances of the case, there shall be no order as to costs.