Medical Council Of India vs Vandana Bhatnagar & Ors.
2011 Latest Caselaw 3108 Del

                                              REPORTBLE
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 LETTERS PATENT APPEAL NO. 84/2011

                                       Reserved on: 1st June, 2011
%                                     Date of Decision: 5th July, 2011

MEDICAL COUNCIL OF INDIA                  ....Appellant
            Through Mr. Amit Kumar, Mr. Ashish Kumar &
            Mr. Jawahar Narang, Advocates.

                             VERSUS

VANDANA BHATNAGAR & ORS.                 .....Respondents

Through Mr. Amarjit Sahni, Advocate for respondent No. 1.

Mr. Yashish Chandra, Advocate for Ms. Maninder Acharya, Advocate for respondent No. 2.

Mr. Rajeev Sharma & Mr. Chandan Sharma, Advocates for respondent No. 3.

LETTERS PATENT APPEAL NO. 85/2011

MEDICAL COUNCIL OF INDIA ....Appellant Through Mr. Amit Kumar, Mr. Ashish Kumar & Mr. Jawahar Narang, Advocates.

VERSUS DIMPLE CHAUDHARY & ORS. .....Respondents Through Mr. Vijay Kumar, Advocate for respondent No. 1.

Mr. Yashish Chandra, Advocate for Ms. Maninder Acharya, Advocate for respondent No. 2.

Mr. Rajeev Sharma & Mr. Chandan Sharma, Advocates for respondent No. 3.

and 8.

LPA Nos. 84/2011 & 85/2011                                         Page 1
 CORAM:

HON'BLE MR. JUSTICE DIPAK MISRA, THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

SANJIV KHANNA, J.:

These two intra-Court appeals by the Medical Council of

India (MCI, for short) are directed against the common order

dated 10th December, 2010 allowing Writ Petition (Civil) No.

11797/2009 filed by Dr. Vandana Bhatnagar and Writ Petition

(Civil) No. 12790/2009 filed by Dr. Dimpy Chaudhary and three

other doctors. The other respondents to these intra-Court

appeals are the University of Delhi, Faculty of Medical Sciences

and St. Stephen's Hospital. The facts stated below would

exposit that there is an inter se dispute between MCI and the

University of Delhi and the respondent doctors were compelled

to file the writ petitions to get justice.

2. The respondent doctors are MBBS. They appeared for

Delhi Post Graduate Entrance Examination conducted by the

University of Delhi and in view of the ranking secured were

called for counselling and were allotted/admitted to Diploma in

Gynecology and Obstetrics (DGO, for short) in St. Stephen's LPA Nos. 84/2011 & 85/2011 Page 2 Hospital, Delhi. Dr. Vandana Bhatnager was allotted the said

course in 1998, whereas Dr. Dimple Choudhary and Dr. Dipti

Dugra were allotted the said course in the year 2007. Dr. Anjali

Jain had cleared/completed the course in 2008. Dr. Deepanvita

Halder was pursuing the course after selection when the writ

petition was filed.

3. The contention raised by the appellant-MCI is that the

aforesaid course is not recognized by them and, therefore, even

if the respondent doctors have cleared the DGO course, the

same cannot be added and included in the professional

qualifications registered with them. The appellant has relied

upon Section 11 and Section 10-A, 10-B and 10-C of the Indian

Medical Council Act, 1956 (Act, for short).

4. As the aforesaid Sections are required to be examined,

they are being reproduced below:

"10-A. Permission for establishment of new medical college, new course of study, etc.--(1) Notwithstanding anything contained in this Act or any other law for the time being in force,--

(a) no person shall establish a medical college;

or

(b) no medical college shall--

(i) open a new or higher course of study or training (including a post-graduate course of LPA Nos. 84/2011 & 85/2011 Page 3 study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training (including a post- graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

Explanation 1.--For the purposes of this section, "person" includes any University or a trust but does not include the Central Government.

Explanation 2.--For the purposes of this section, "admission capacity", in relation to any course of study or training (including postgraduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.

(2)(a) Every person or medical college shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.

(b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.

(3) On receipt of a scheme by the Council under sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical LPA Nos. 84/2011 & 85/2011 Page 4 10-B. Non-recognition of medical qualifications 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 10-A, no medical qualification granted to any student of such medical college shall be a recognised medical qualification for the purposes of this Act.

(2) Where any medical college opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of the Central Government in accordance with the provisions of Section 10-A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification 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 10-A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act. Explanation.--For the purposes of this section, the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed.] 1 Inserted by Act 31 of 1993, Section 2 (w.r.e.f. 27-8-1992).

LPA Nos. 84/2011 & 85/2011 Page 5 10-C. Time for seeking permission for certain existing medical colleges, etc.-- (1) If, after the 1st day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment) Act, 1993 any person has established a medical college or any medical college has opened a new or higher course of study or training or increase the admission capacity, such person or medical college, as the case may be, shall seek, within a period of one year from the commencement of the Indian Medical Council (Amendment) Act, 1993, the permission of the Central Government in accordance with the provisions of Section 10-A.

(2) If any person or medical college, as the case may be, fails to seek the permission under sub-section (1), the provisions of Section 10-B shall apply, so far as may be, as if, permission of the Central Government under Section 10-A has been refused.] 1 Inserted by Act 31 of 1993, Section 2 (w.r.e.f. 27-8-1992).

11. Recognition of medical qualifications granted by Universities or medical institutions in India.--(1) The medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act.

(2) Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official LPA Nos. 84/2011 & 85/2011 Page 6 Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date."

5. It may be noted here that Section 10-A, 10-B and 10-C

were inserted and became part of the statute pursuant to the

amendment made by Act of 31 of 1993 with effect from 27th

August, 1992. After enactment of Sections 10-A, 10-B and 10-C

in the Act, the MCI has formulated Post Graduate Medical

Education Regulations, 2000 with retrospective effect from 27th

August, 1992.

6. The Act was enforced with effect from 30th December,

1956. Section 11 is a part of the enactment since the beginning

and consists of two sub-sections. Sub-section 1 stipulates that

medical qualifications granted by a university or medical

institutions in India and included in the First Schedule to the Act

shall be recognized medical qualifications. The First Schedule

includes names of universities or medical institutions in India, who

were/are recognized to award medical qualifications or degrees on

the date the Act was enacted or subsequently. Thus,

LPA Nos. 84/2011 & 85/2011 Page 7 universities/institutions and the medical qualifications mentioned

therein qualify as recognized medical institutions. Sub-section 2

to Section 11 applies when a university or medical institution in

India wants to grant or seeks recognition of a medical

qualification, which is not included in the First Schedule and

wants an amendment or inclusion in the First Schedule. Sub-

section 2 will not apply in case, where a medical qualification to

be issued by a university or institution is already included in the

First Schedule.

7. The admitted position in the present case is that the

University of Delhi is one of the universities mentioned in the

First Schedule. The First Schedule stipulates that the University

of Delhi is entitled to issue degree/diploma at post graduate

level. It is not disputed that DGO course is a Post Graduate

Level Diploma/Degree and mentioned in the First Schedule.

The relevant portion of the First Schedule to the Act reads as

under:

"University of Recognised medical qualification Abbreviation for Medical registration Institution University of Bachelor of Medicine and M.B.B.S. (Delhi Delhi Bachelor of Surgery [Diploma in Tuberculosis Diseases D.T.D. (Delhi)

(b)Master of Science (Anatomy) M.Sc. (Anatomy), Delhi.

                          Doctor of Medicine (Medicine)       M.D. (Med.), Delhi

LPA Nos. 84/2011 & 85/2011                                                      Page 8
                              Master of Surgery (Medicine)          M.S. (General Surgery),
                                                                   Delhi.
                             Doctor of Medicine (Obstetrics        M.D. (Obst. And
                             and Gynaecology)                      Gyn.),Delhi
                             [Diploma in Tuberculosis and          D.T.C.D.,Delhi
                             Chest Diseases.
                             [Diploma in Ophthalmology.            D.O., Delhi
                             Diploma in Anaesthesia                D.A., Delhi]
                             [Diploma in Gynaecology and           D.G.O., Delhi
                             Obstetrics
                             Master of Science (Medical Bio-       MS.C. (Med. Bio-Chem.),
                             chemistry)                            Delhi
                             [Doctor of Medicine (Medical Bio-     M.D. (Medical Bio-
                             chemistry)                            chemistry), Delhi]
                             Master of Science (Pharmacology)      M.Sc.(Pharm.), Delhi
                             Diploma in Child Health               D.C.H., Delhi]
                             [Master of Science (Medical           M.Sc. (Med.Bact.), Delhi
                             Bacteriology)
                             Doctor of Medicine (Medicine          M.D. (Med. Micro),
                             Micro-biology)                        Delhi.]
                             [Doctor of Medicine (Paediatrics)     M.D. (Paed.), Delhi
                             Doctor of Medicine (Social and        M.D. (Soc. And Prev.
                             Preventing Medicine)                  Med.), Delhi
                             Master          of          Surgery   M.S. (Ophth.), Delhi
                             (Ophthalmology)
                             Master         of         Medicine    M.D. (Anaes.), Delhi]
                             (Anaesthesiology)
                             [Master of Surgery (Anatomy)          MS. (Ana), Delhi
                             Doctor f Medicine (Pathology)..       M.D. (Path.), Delhi
                             Diploma in Medical Radiology -        D.M.R.D., Delhi
                             Diagnosis
                             Diploma in Medical Radiology -        D.M.R.T. , Delhi
                             Therapy
                             Diploma in Radiation Medicine     D.R.M, Delhi

Master of Surgery (Plastic Surgery) M.Ch. (Plastic Surgery), Delhi] [Doctor of Medicine M.D. (Pharm.), Delhi (Pharmacology) Doctor of Medicine (Cardiology) M.D. (Cardiology), Delhi [Doctor of Medicine (Community M.D. (community Health Administration) Health Administration) [Doctor of Medicine (Dermatology M.D. (Derm. Including including Leprosy and Venereal Leprosy and Ven.

                             Diseases)                             Diseases)
                             Diploma in Venereology and            D.V.D.
                             Dermatology
                             [Diploma    in    Otology     and     D.L.O.
                             Laryngology                           This qualification shall be
                                                                   a recognised medical
                                                                   qualification        when

LPA Nos. 84/2011 & 85/2011                                                            Page 9
                                                                      granted on or before 30th
                                                                     April, 1979]
                             [Doctor of Medicine (Physiology)        M.D. (Phy.)
                             Diploma in Health Education             D.H.E.
                               when held by medical graduates
                             only].
                             [Doctor of Medicine (Tuberculosis       M.D. (Tuberculosis and
                             and Resp. Diseases)                     Resp. Diseases)
                             [Diploma in Dermatology]                D.D.]
                             [Doctor of Medicine (Forensic           M.D. (Forensic Medicine)
                             Medicine)

Note:- The above qualification shall be recognised medical qualification when granted by University of Delhi in respect of the students being trained at Maulana Azad Medical College, New Delhi and Lady Harding Medical College, New Delhi.

[b] Inserted by S.O. 2095, Gaz. Of Ind., 1961, Pt. II, S. 3 (ii), p. 2501."

(emphasis supplied)

8. DGO awarded by the University of Delhi was recognized

and included in the First Schedule of the Act by a notification in

1961. The University of Delhi in their counter affidavit has stated

that they had introduced DGO course in St. Stephen's Hospital

in the year 1976 and since then every year students have been

admitted to the said course without any objection from MCI. The

learned single Judge during the course of proceedings had

asked MCI to produce the original record by which recognition

was granted to the Delhi University. The original record was not

produced and it was stated by MCI that the same was not

traceable. Original record has not been produced before us.

The learned single Judge has rightly noticed that in the First

LPA Nos. 84/2011 & 85/2011 Page 10 Schedule to the Act, DGO course of the Delhi University is

included and mentioned as recognized medical qualification or

course which can be conducted by the said University. Delhi

University from the very beginning does not conduct any medical

course themselves but the courses are conducted and taught in

affiliated colleges or medical institutions. A reading of the First

Schedule, therefore, authorises and mandates that the

University of Delhi is entitled to conduct DGO courses and

award degrees through their affiliated colleges/medical

institutions. There is no restriction that the DGO course must be

conducted in a particular/specified affiliated college/institution or

any prior approval or permission is required from MCI. Delhi

University is entitled to conduct another course, Doctor of

Medicine (Forensic Medicine). However, in respect of the said

course, it is stipulated that the course must be conducted in

Maulana Azad Medical College, New Delhi or Lady Harding

Medical College, New Delhi and no other college/medical

institution. Thus, the First Schedule makes a distinction

between DGO course of the Delhi University and Doctor of

Medicine (Forensic Medicine), which can be conducted by the

Delhi University but only in two medical colleges mentioned

LPA Nos. 84/2011 & 85/2011 Page 11 therein. The learned single Judge in paragraphs 3 and 4 of the

impugned order dated 10th December, 2010 has recorded as

under:

"3. To remove any doubt as to whether the note under the Doctor of Medicine (Forensic Medicine), relates to the said qualification only or to all the qualifications mentioned above the note, the counsel for the respondent No. 3 St. Stephen's Hospital has been requested to check up in the earlier edition of AIR Manual of the year prior to the introduction in the Schedule of the Course of doctorate in Forensic Medicine Course. The counsel has produced the AIR Manual, Volume 25, 4th Edition in which in the Schedule aforesaid neither the course of Doctorate in Forensic Medicine appears (which was introduced in 1988) nor the note aforesaid appears.

4. From the aforesaid, it is quite clear that the recognition granted to the DGO course by the University of Delhi was without any such restriction as to the Institute/College/Centre from which the same is to be done."

9. Learned counsel for the appellant-MCI has relied upon

Rajasthan Pradesh V.S. Sardar Shahar and Another versus

UOI & ORS, 2010 (6) SCALE 107. The said decision makes a

distinction between the term "recognition" and "affiliation" for the

purposes of Indian Medical Central Council Act, 1970. The

aforesaid distinction was drawn in a different context and it was

LPA Nos. 84/2011 & 85/2011 Page 12 observed that "recognition" means that the school has been

recognised or acknowledged by the appropriate authority under

a particular statute and "affiliation" means that students of an

institute are eligible to appear in an examination. As far as

Section 11(1) is concerned, the said distinction is not relevant.

Section 11(1) uses the term "recognition" and stipulates that the

university or medical institutions, which are included in the First

Schedule shall be recognised medical qualifications for the

purposes of the Act. Thus, for the purpose of Section 11(1)

once the university/institution is included in the First Schedule,

consequences envisaged under Section 11(1) flow. Thus in

1961 after following the procedure prescribed in Section 11(2)

the University of Delhi became entitled to award DGO after it

was included in the First Schedule. There was no restriction or

requirement of affiliation of a particular college or institution

prescribed. Such prescribed restriction is to be found in respect

of degree of Doctor of Medicine (Forensic Science).

10. As noticed above, Sections 10-A, B and C were introduced

with effect from 27th August, 1992. DGO course was introduced

in the University of Delhi with effect from 1961 and in the St.

Stephen's College with effect from 1976. At that time, Sections

LPA Nos. 84/2011 & 85/2011 Page 13 10-A, B and C of the Act were not enacted as a part of the

statute. The said provisions, therefore, are not attracted to the

DGO course started by University of Delhi in St. Stephen's

College in 1976. In view of Section 10-A, if the Delhi University

wants to establish a medical college or open a new or higher

course of study or training or even increase the admission

capacity in any course or training, they will have to follow the

procedure prescribed under Section 10-A of the Act. However,

the said provision will not be applicable to the existing courses

which were already started by the Delhi University and included

in the First Schedule, in case there is no increase in the number

of students. Courses which are already in existence and included

in the First Schedule of the Act do not require registration under

Section 10-A, unless there is increase in the admission capacity.

The said provisons and, therefore, the Regulations of 2000 are

inapplicable and cannot be invoked by the MCI.

11. Section 10-A has a non-obstante provision and applies

notwithstanding anything contained in the Act or any other law

for the time being in force. The non-obstante clause has to be

given full play and meaning but not beyond what is stipulated in

10-A(1)(a) and (b). Section 10-A does not require any existing

LPA Nos. 84/2011 & 85/2011 Page 14 university/medical institution which is already included in the

First Schedule to apply once again, even if the conditions

stipulated in Section 10-A(1) are not attracted. Only when sub-

clauses (a) and (b) to Section 10-A(1) apply that the provision is

applicable and attracted. As noticed above, sub-clauses (a) and

(b) to Section 10-A(1) are not applicable to the facts of the

present case. Section 10-B has to be read along with Section

10-A. It provides for consequences where Section 10-A applies

and a medical college has not been established without previous

permission of the Central Government and in accordance with

the provisions of Section 10-A. Section 10-B also applies if a

new or higher course is started without permission of the Central

Government in accordance with Section 10-A or when there is

an increase in admission capacity except with previous

permission of the Central Government in accordance with

Section 10-A. In the last category, medical qualification granted

to a medical student on the basis of increase in capacity is not

recognised. Section 10-B cannot be applied and is not attracted

when Section 10-A is not applicable. Section 10-C is a transient

provision and is applicable where a university/medical

institution was set up on or after 1st day of June, 1992 but before

LPA Nos. 84/2011 & 85/2011 Page 15 the commencement of Indian Medical Council (Amendment) Act,

1993, which was made applicable with effect from 27th August,

1992. It also applies when a new/higher course is introduced or

when there is an increase in intake after 1st June, 1993. None of

the provisions 10-A, B and C stipulate that they will also apply to

recognised institutions mentioned in the First Schedule if

provisions of Section 10-A of the Act are not applicable. Section

10-C gives limited retrospective effect to Section 10-A for

institutions, which had come up on or after 1st day of June, 1992

and in cases where a new or higher course of study or training

or increase in admission capacity is made on or after 1st day of

June, 1992.

12. In view of the aforesaid discussion, the appeals have to be

dismissed. These are accordingly dismissed but there will be no

order as to costs.

(SANJIV KHANNA) JUDGE

( DIPAK MISRA ) CHIEF JUSTICE

JULY 05, 2011 VKR

LPA Nos. 84/2011 & 85/2011 Page 16