Vaisak. K. Kanan vs Union Of India
2021 Latest Caselaw 1268 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7548 of 2020
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1. Vaisak. K. Kanan, son of M.V. Kunhikannan, Mavuppadi Karimbam, Badariya Nagar Road, P.S.- Taliparamba, District- Kannur, Kerala- 670142, presently residing in Room No 128, Chanakya New PG Hostel, Patna Medical College and Hospital, Patna, Bihar.

2. Prabhat Ranjan, son of Murlidhar Prasad Yadav, resident of village-

Bhavatiya, P.O.- Suhath, P.S.- Saurbazar, District- Saharsa, presently residing in Room No 122, Chanakya, New PG Hostel, Patna Medical College, Patna, Bihar.

3. Guvvala Shruthi, daughter of Sri Guvvala Ushaiah, resident of Hose No 5/48, Manakondur Mandal Monkondur, Karim Nagar, Andhrapradesh- 505469, presently residing in Room No 19, 1st Floor Kasturba Hostel for PG Girls, Patna Medical College and Hospital, Patna.

... ... Petitioner/s Versus

1. Union of India through its Secretary, Ministry of Health and Family Welfare, Nirmaan Bhavan, Near Udyog Bhavan, Metro Station, Maulana Azad Road, New Delhi- 110011.

2. Secretary, Ministry of Health and Family Welfare, Nirmaan Bhavan, Near Udyog Bhavan, Metro Station, Maulana Azad Road, New Delhi- 110011.

3. Board of Governors (In supersession of Medical Council of India), Pocket 14, Sector- 8, Dwarka, Phase- I, New Delhi, through its Secretary.

4. Secretary, Board of Governors (In Supersession of Medical Council of India), Pocket 14, Sector- 8, Dwarka, Phase- I, New Delhi, through its Secretary.

5. The State of Bihar through the Principal Secretary, Department of Health, Government of Bihar, Patna.

6. Principal Secretary, Department of Health, Government of Bihar, Patna.

7. Patna Medical College, Patna, through its Principal.

8. Principal, Patna Medical College, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Binodanand Mishra, Advocate For the Respondent/s : Mr. (Dr.) K.N. Singh, ASG Mr. Abhay Shankar Jha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 04-03-2021

The petitioners are pursuing Medical Postgraduate Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

Diploma Courses in Child Health/ Orthopedics/ Obstetrics and

Gynecology upon their admission for the academic session

2019-21, in Patna Medical College, Patna. They are seeking a

direction in the present writ application to upgrade their course

to Postgraduate Degree Course by converting the Postgraduate

Diploma seats against which they were admitted, into

Postgraduate Degree (MD/MS) seats.

2. It has been asserted in the writ application that the

Ministry of Health and Family Welfare, Government of India

had issued a public notice on 18.01.2019, whereby the medical

institutions were requested to send their applications for

increasing PG degree seats in their colleges in terms of

notification dated 12.07.2018 issued by the Medical Council of

India's Amendment Notification No. MCI-18(I)/2018-

Med./122294. It was made clear in the public notice dated

18.01.2019, issued by the Ministry of Health and Family

Welfare, Government of India that the Ministry shall consider

only those applications which were received till 25.01.2019 as

the last date for issuance of letter of permission for the academic

session 2019-20 i.e. 28.02.2019 was very close and approaching

fast. From the public notice dated 18.01.2019, which has been

brought on record by way of Annexure-2 to this application, it Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

transpires that the said amendment notification dated

12.07.2018, issued by the Board of Governors in supersession of

Medical Council of India (hereinafter referred to as 'the BoG')

enabled medical colleges to seek equal number of PG degree

(MD/MS) seats by surrendering recognized diploma seats in

corresponding courses, in the wake of which the Ministry was

receiving applications from medical institutions for increasing

PG degree seats.

3. It has also been asserted by the petitioners that the

BoG allowed conversion of postgraduate diploma course seats

prospectively for the academic session 2019-20 for two private

medical colleges in the State of Bihar. The petitioners, however,

admit in paragraph 19 of the application that no such conversion

of postgraduate diploma course seats into degree seats was

allowed in any of the government medical colleges including

Patna Medical College. The petitioners have also brought on

record a public notice issued by the Ministry of Health and

Family Welfare dated 18.03.2019 wherein the Ministry took

cognizance of the fact that in the light of the Amendment

Notification dated 12.07.2018(supra), which restricted

recognition of various diploma courses in respect of students

admitted in the academic year 2018-19, thus, enabling the Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

medical colleges/ institutions to seek equal number of PG

(MD/MS) seats in corresponding courses and accordingly a

notification restricting recognition of diploma courses to the

aforesaid effect was issued by the Ministry. Some of the diploma

courses, which were denotified in the light of the Amendment

Notification dated 12.07.2018, could not be converted into

degree seats by the BoG, which had the consequence of

depletion of PG seats during counselling for the academic

session 2019-20. It was in that background that the Ministry of

Health and Family Welfare considered it proper to re-notify

certain diploma courses which were not converted into degree

seats in respect of colleges/ courses mentioned in the table for

their inclusion in counselling for the academic session 2019-20.

Name of Patna Medical College figures at serial no. 6. It is

evident from the said public notice dated 18.03.2019 that

diploma courses in (i) Child Health (ii) Orthopedics and (iii)

Obstetrics and Gynecology amongst others were renotified by

virtue of the said public notice dated 18.03.2019 for the

academic session 2019-20.

4. As has been noticed at the outset, the petitioners

were admitted in diploma courses for the academic session

2019-21 in Patna Medical College, Patna, which was re-notified Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

by the said public notice dated 18.03.2019. It is the petitioners'

case that the BoG vide letter dated 27.02.2020(Annexure-7)

addressed to the Ministry of Health and Family Welfare had

recommended Central Government for conversion of

postgraduate diploma course seats into degree seats

prospectively from the academic session 2020-21. The

recommendation includes conversion of diploma courses into

degree courses in Child Health/ Orthopedics/ Obstetrics and

Gynecology.

5. In the aforesaid background, the petitioners claim

that since diploma course seats have now been converted into

degree course seats, they should be allowed to pursue degree

courses instead of diploma courses against seats which have

been converted in the light of the recommendation of BoG.

6. A counter affidavit has been filed on behalf of

Ministry of Health and Family Welfare, Government of India

wherein it has been stated that as intimated by the BoG, there is

no provision to consider diploma passed out candidates/ ongoing

diploma course candidates to convert their diploma courses into

degree courses after submission of thesis/ dissertation.

7. A rejoinder affidavit has been filed on behalf of the

petitioners and dealing with the said stand of the Ministry of Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

Health, as noted in paragraph 14 of the counter affidavit, it has

been stated that since thesis of the students of 2019 batch have

not been submitted, their claim for upgradation of their course

should not be denied on the basis of the communication of BoG

as mentioned in paragraph 14 of the counter affidavit.

8. Mr. Binodanand Mishra, learned counsel appearing

on behalf of the petitioners has submitted that the petitioners

have suffered because Patna Medical College did not take

appropriate steps for upgradation of diploma courses into degree

courses despite public notice issued by the Ministry of Health

and Family Welfare in this regard. He has argued that because of

such inaction on the part of the college the petitioners had no

choice but to seek admission in diploma courses. He has further

argued that since diploma courses have now been denotified in

the college and equal number of degree seats have been allowed,

the petitioners should be given benefit of conversion of seats.

He has placed reliance on a Supreme Court's decision in case of

Chairman, Central Council of Homoeopathy vs. Varinder

Singh and others reported in (2001) 10 SCC 161 in support of

his contentions.

9. Per contra, it has been argued on behalf of the

Union of India that the petitioners cannot claim their admission Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

against degree seats, which if allowed, have been allowed

prospectively from the academic session 2020-21. It has been

contended that in the absence of any specific provision for

conversion of admission of a candidate from an ongoing

diploma course into a degree course, the petitioners cannot be

granted such relief in the present proceeding.

10. Before I advert to rival submissions made on

behalf of the parties, I must take note of the statement made in

paragraph 24 of the writ application, which reads as under :-

"24. That is is respectfully submitted here that though the conversion of postgraduate diploma seats into equal number of degree seats was allowed from the academic session 2019-20, however, the benefits of the said conversion could not be provided to the petitioners without any rhyme and reason. The petitioners had to suffer for no fault on their part."

11. The said statement is palpably false. It is evident

from Annexure-7 of the writ application that BoG had

recommended conversion of diploma seats into corresponding

degree seats in various medical institutions including Patna

Medical College prospectively from the academic session 2020-

21 and not from the academic session 2019-20. The said

statement, in the Court's opinion, is misleading and itself is a

ground to dismiss this writ application.

Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

12. Further, indisputably, admission into PG degree/

diploma courses in medical institutions is allowed on the basis

of a combined entrance test, merit of the respective candidates

in the said test and counselling held by the competent authority

for the said purpose. The petitioners were apparently allowed

admission in diploma courses on the basis of their ranking in the

test and the counselling held for the said purpose for the

academic session in question. Upgradation of their courses in

the form, as sought for in the writ application, will be, in the

Court's opinion, a gross violation of Article 14 of the

Constitution of India, inasmuch as, candidates more meritorious

than these petitioners shall stand discriminated against for

having been given no opportunity to claim admission into the

said degree courses. In any event, the petitioners cannot be

permitted to be admitted against degree seats which came to be

notified for the academic session 2020-21, they being not

applicants for the said seats.

13. The Supreme Court's decision in case of Varinder

Singh (supra), relied on by the learned counsel for the

petitioners does not support the petitioners' case. In the said

case, some students had filed a writ application before the High

Court of Punjab and Haryana seeking relief that diploma courses Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

to which they have been admitted at the college should be

allowed to be converted into a degree course. They had asserted

that students of another Homeopathic Medical College were

permitted to be awarded a degree course by conversion of a

diploma course. A Full Bench of the High Court of Punjab and

Haryana had allowed the writ application with certain directions

after noticing various irregularities committed either by the

college or by the authorities. The Full Bench of the High Court

of Punjab and Haryana was of the view that if the students were

asked to complete the years of study required for degree course

and the number of hours of study for degree course, there should

be no difficulty and that the said batch of students should be

entitled to have conversion of diploma course into degree

course, in the facts and circumstances of that case.

14. In the peculiar facts and circumstances of the case,

the Supreme Court did not consider it proper to interfere with

the Full Bench decision of the High Court of Punjab and

Haryana, as can be noticed from paragraph 13 of the judgment.

Only part of the order, whereby certain observations were made

by the Central counsel and the State counsel or Homeopathy in

relation to expenditure for the degree courses to be borne by the

students, was set aside by the Supreme Court. It is significant to Patna High Court CWJC No.7548 of 2020 dt.04-03-2021

note that in Paragraph 16 of Varinder Singh's case (supra), the

Supreme Court has made following observation :-

"16. We make it clear that the above orders are passed in the peculiar facts and circumstances of the case and should not be treated as a precedent in any other case."

15. It is, thus, totally misconceived for the learned

counsel for the petitioners to have placed reliance on the

Supreme Court's decision in case of Varinder Singh (supra) in

this case.

16. For the aforesaid reasons, I do not find any merit in

this application, which is accordingly dismissed.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          05.03.2021
Transmission Date       NA