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Nisha A. Shenai Vs. Ntr University of Health Sciences and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWP No. 34063 of 1998 and Batch
Judge
Reported in1999(3)ALD52; 1999(2)ALT776
ActsIndian Medical Council Act, 1956 - Sections 31 and 33; Medical Council of India Regulations of Graduate Medical Education, 1997 - Regulation 12(3)
AppellantNisha A. Shenai
RespondentNtr University of Health Sciences and ors.
Appellant Advocate Mr. G. Vidya Sagar, Adv.
Respondent Advocate Mr. K.G.K. Prasad, SC for NTR University and ;Mr. S. Niranjan Reddy, SC for Indian Medical Council, Hyd.
Excerpt:
.....two different classes and therefore, cannot complain of any discrimination. both the period of six months as well as 120teaching days are mandatory..........it is further stated that the university is bound by the regulations andnorms prescribed by the medical council of india. according to the norms and regulations of the medical council of india, the duration of first mdbs course is 18 months and out of !8 months of 1-1/2 month is summer vacation. therefore, the requirement 'is that every student has to attend class for a period of 16-1/2 months from the date of commencement of the classes. the regular students who were admitted into first mbbs course in january, 1998 have completed the required duration of period and became eligible to appear for the examinations to be held in the month of april, 1999. it is submitted that the petitioners herein have hardly completed study and attended the classes only for a period of 9 months and.....
Judgment:
ORDER

1. This batch of writ petitions may be disposed of by a common order, as one and [he same issue arises for consideration relating to the entitlement of the petitioners to appears in the examination for first year MBBS course commencing from last Monday of April, 1999. The petitioners assert that they are entitled to sit and write the examination of first year MBBS along with other students. The proceedings of the University dt. 2-11-S998 informing the Principals of all the Medical Colleges in the State of Andhra Pradcsh that the examinations will be commenced from the last Monday of April, ! 999 for the first MBBS students who were admitted in January, 1998 for the academic year 1997-98 and the students who were admitted into 1st MBBS will have the examinations in the month of October, 1999 is impugned in this writ petition. The petitioners complain of discrimination. The decision of the University in refusing to grant permission to the petitioners to appear for the examinations commencing in the month of April, 1999 is arbitrary, according to the petitioners. Consequently, they pray for issuance of appropriate direction directing the respondents herein to permit the petitioners to appear for the examinations to be held in April, 1999.

2. The facts relevant for the purpose of adjudication of this batch of writ petition as stated in WPNo.34100/1998 may briefly be noticed :

3. All the petitioners herein have appeared for EAMCET-1997 and were qualified for admission into MBBS course for the academic year 1997-98. The Government of Andhra Pradesh took decision for increase of seats in the Medical Colleges in the State of Andhra Pradeshvide G.O. Rt. No.1119 (HM&FW-CE;) Department, dated 25-6-1996. Pursuant to the said decision, the University of Health Sciences and the Director of Secondary Education have made application to the Government of India for increase of 220 seats in Siddartha Medical College, Vijayawada, Rangaraya Medical College, Kakinada, Kurnool Medical College, Knrnool, Sri Venkatcswara Medical College, Tjrupalhi and Kakatiya Medical College Warangal. The Government of India vide letter dated 26-3-1998 accorded approval for increase of 120 seats only in three Medical Colleges in the State of Andhra Pradesh for the academic year 1997-98 in the following manner :

1. Rangaraya Medical College,

Kakinada ... 50 seats

2. Kurnool Medical College,

Knrnool ... 20 seats

3. Kakatiya Medical College,

Warangal ... 50 seats

4. The Government of Andhra Pradesh earmarked 15% of seats for NRI/ Foreign students in order to augment the resources for improvement of the said Colleges. The University of Health Sciences called for applications from the candidates seeking admission into the said course. The counselling took place on 6-5-1998 and all the petitioners herein have been provisionally selected for admission to study first year MBBS for the academic year 1997-98. The Principal of Kakatiya Medical College admitted the petitioners in first year MBBS course for the academic year 1997-98 and all of them were directed to attend the classes from 18-5-1998. It is required to notice that these admissions relate lo additional seats created in the said three colleges after the sanction by the Government of India.

5. It may be noticed that regular students who were admitted into first year MBBS course for the year 1997-98 in themonth of January, 1998 started attending the classes right from 23-1-1998. But according to the petitioners, the classes for the regular students also commenced only on 2-2-1998. There is no dispute whatsoever that the admissions made in January,' 1998 into first year MBBS in respective Medical Colleges is with reference to the original seats allotted to various Medical College and whereas the petitioners who are admitted into MBBS course in various Medical Colleges in the month of May, 1998 is with-reference to the additional seats created in three colleges after the permission from the Government.

6. It is the case of the petitioner that regular batch of students had their vacations from 6-4-1998 to 15-6-1998 and whereas the petitioners herein joined the course only on 13-5-1998 and the course commenced from 18-5-1998 and classes were taken without any break whatsoever upto 14-6-1998 with an intention to make up the syllabus on par with regular students of 1997-98 batch. It is submitted that during the period from 18-5-1998 to14-6-1998 the Principal and the teaching staff have taken special interest to ensure that the petitioners could complete and make syllabus so as to attend the classes on par with other students who joined after summer vacation on 15-6-1998. It is their case that they have covered the entire syllabus both theory and practical during the period from 18-5-1998 to S4-6-1998 and came into the main stream since15-6-1998 and prosecuting the course along with regular students of 1997-98 batch. According to the petitioners, there is no difference whatsoever between those students who were admitted in the month of January, 1998 and these petitioners.

7. It is also the case of the petitioners that for all practical purposes, they are to be treated as the first year MBBS students for the year 1997-98 batch. The dates of admission into the Medical Colleges, according to them is of no consequence. Itis submitted that the petitioners were never informed at any point of time that they will be treated separately from the other batch of students admitted into the MBBS course for the academic year 1997-98. In fact, there is no difference as such since 15-6-1998 onwards, as the petitioners have joined the main stream and attending the classes along with the regular students.

8. The decision of the University in treatirig them differently from the regular batch of students is discriminatory and arbitrary, according to the petitioners. The uni-lateral decision of the University in depriving the petitioners of their legitimate right to appear for the examination along with regular batch of students is impugned on various grounds.

9. The facts in other writ petitions need not be noticed for the reason that the petitioners in other writ petitions are also similarly situated as the petitioners in WP No.34100 of 1998, as they have also joined the first year MBBS course pursuant to the counselling held in the month of May, 1998. They are not part of regular batch of students who were admitted into the Medical Colleges in the month of January, 1998.

10. In the counter-affidavit filed by the University, it is inter alia stated that regular batch of students were admitted into first year MBBS course prior to January, 1998 and classes commenced with effect from 23-1-1998 and whereas the petitioners were admitted into first year MBBS course in respective Medical Colleges of the State in the month of May, 1998. It is further stated that no instructions whatsoever have been issued by the University requesting the Principals of Medical Colleges to conduct special classes to the students who were admitted into MBBS course in the month of May, 1998.

11. It is further stated that the University is bound by the Regulations andnorms prescribed by the Medical Council of India. According to the norms and Regulations of the Medical Council of India, the duration of first MDBS course is 18 months and out of !8 months of 1-1/2 month is summer vacation. Therefore, the requirement 'is that every student has to attend class for a period of 16-1/2 months from the date of commencement of the classes. The regular students who were admitted into first MBBS course in January, 1998 have completed the required duration of period and became eligible to appear for the examinations to be held in the month of April, 1999. It is submitted that the petitioners herein have hardly completed study and attended the classes only for a period of 9 months and accordingly they are entitled to appear for the examinations only in the month of October, 1999. It is under those circumstances, the University has sent proceedings on 2-11-1998 to all the Principals of Medical Colleges in the State to conduct examination in April, 1999 for the regular batch of students and in October, 1999 to the students who are admitted into the Medical Colleges in May, 1998. It is submitted that the decision of the University does not suffer from any infirmity whatsoever. There is no arbitrariness whatsoever on the part of the University in deciding to hold two separate examinations for the students who were admitted into the Colleges in the month of January, 1998 and May, 1998. It is submitted that they constitute two different classes and therefore, cannot complain of any discrimination. The decision taken by the University is in the interest of the students. It is submitted that such a decision was taken by the University to uphold the academic standards.

12. It is conceded at the Bar that the Medical Council of India is entitled to prescribe the minimum standards of Medical education required for grant recognised medical qualifications byUniversities or Medical institutions in India. There is no dispute whatsoever that the University of Health Sciences and the Medical Institutions in the State of Andhra Pradesh are bound by the minimum standards of Medical education prescribed by the Indian Medical Council. The Medical Council of India is entitled to make regulations with the previous sanction of the Central Government to carry out the purpose of the Indian Medical Council Act, 1956 (for short 'the Act'), The Council in purported exercise of the power conferred under Section 33 of the said Act is authorised to frame regulations provided for the course and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or Medical institutions for grant of recognised medical qualifications. It is also entitled to prescribe regulations for the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations. The question as to whether such regulations are mandatory is not res Integra. The Apex Court in Medical Council of India v. Stale of Karnataka, : [1998]3SCR740 , had an occasion to consider the question and after referring to the earlier decisions on the subject held :

'The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provisions of the Act even though the State Acts may be relatable to Entry 25 or 26 of List III (Concurrent List). Regulations framed under Section 33 of the Medical Council Act with the previous sanction of the Central Government are statutory. These regulations are framed to cany out the purpose of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council Act, itwill have mandatory force. Regulations have been framed with reference to clauses (fa), (fb) and (fc) (which have been introduced by the Amendment Act of 1993 w.e.f. 27-8-1992) and clauses (j), (k) and (l) of Section 33.'

13. The Apex Court in State of Kerala v. T.P. Roshana, : [1979]2SCR974 , held that 'the Medical Council has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions.' It is observed that 'the Medical Council as an expert body has the power to control the minimum standards of medical education and to regulate their observance. It is duty bound to exercise 'an overall invigilation in respect of medical courses.' It is thus clear that the regulations framed by the Medical Council relating to the qualification to study MBBS course, duration of course of study and other allied matters required to be held as mandatory. The University of Health Sciences and all Medical institutions in the State of Andhra Pradesh are bound by the said regulations. The University of Health Sciences and the medical institutions are required to arrange their academic programme to be in tune with the requirement prescribed by the Medical Council under the regulations.

14. The regulations framed by the Indian Medical Councils are mandatory and have the force of law.

15. Learned Standing Counsel for the Medical Council of India made available a copy of the regulations framed by the Medical Council of India in exercise of the power conferred under Section 33 of the Act. The Regulations are framed with the previous sanction of the Centra! Government on 4-3-1997 and published in the Gazette of India dated 17-5-1997. The notification declares that they shall come into force on the date of publication in the official Gazette. Thus it is clear that the regulations have come into force with effectfrom 17-5-1997, though they were made on 4-3-1997. The Regulations are called as 'the Regulations on Graduate Medical Education, 1997'.

16. Regulation No.7 deals with the training period and time distribution. It would be appropriate to have a look at the regulations ;

'Regulation No. 7 : Training period and time distribution:--(1) Every student shall undergo a period of certified study extending over 4-1/2 academic years divided into 9 semesters, (i.e., of 6 months each) from the date of commencement of his study for the subjects comprising the medical curriculum to the date of completion of examination and followed by one year compulsory rotating internship. Each semester will consist of approximately 120 teaching days of 8 hours each college working time, including one hour of lunch.

(2) The period of 4-1/2 years is divided into three phases as follows :

(a) Phase 1 (two semesters) - consisting of Pre-clinical subjects (Human Anatomy, Physiology including Bio-Physics, Bio-Chemistiy and introduction to Community Medicine including Humanities. Besides 60 hours for introduction to community Medicine including Humanities, rest of the time shall be somewhat equally divided between Anatomy and Physiology plus Bio-chemistry combined (Physiology 2/3 and Biochemistry 1/3).

(b) ........................................

(c) ........................................

(3) The first 2 semester (approximately 240 teaching days) shall be occupied in the Phase 1 (Pre-clinical) subjects and introduction to a broader understanding of the perspectives of medical education leading to delivery of health care. No student shall be permitted to join the PhaseII (Para-clinical/clinical) group of subjects until he has passed in all the Phase 1 (Pre-clinical) subjects for which he will be permitted not more than four chances (actual examination), provided four chances are completed in three years from the dale of enrollment.'

Regulation No.8 deals with Phase Distribution and Timing of Examinations and it declares that the 1st professional examination is to be held during second semester and each semester is divided into six months period.

17. Regulation No.12 in Chapter IV prescribes essentialities for qualifying to appear in professional examinations. It may be noticed that 75% of the attendance in a subject for appearing in the examination is compulsory. Regulation 12(3) prescribes the mode and method of University Examinations. It even provides for distribution of marks to various discipline.

18. It is thus clear that the entire academic activity is regulated by the Regulations framed by the Medical Council of India in exercise of its power under Section 31 of the Act.

19. Every student is required to undergo a period of certified study extending over 4-1/2 academic years divided into 9 semesters, i.e., 6 months each from the date of commencement of the study to the date of completion of examination. Each semester will consist of approximately 120 teaching days. In my considered opinion it is mandatory that every student is required to study for a period extending over 4-1/2 academic years. The period cannot be reduced either by the University or any medical institution in India. It is also mandatory requirement that each semester will consist of approximately 120 teaching days spread over a period of six months. Both the period of six months as well as 120teaching days are mandatory requirement. 1 am supported in this view of mine by two Division Bench judgment of this Court, rendered in WP No. 1855 of 1995, dated 19-3-1997 and WP No. 13802 of 1996 and Batch dated 20-3-1997. It is observed by this Court as under :

'The instance on 85% attendance in the period of training is one of the eligibility criteria to take P.O. examinations but 85% attendance has to be calculated with reference to the whole period of training. This rule has a rationale behind it. In any training, more so in a course of specialisation, the optimum benefit caff be derived by the students only when they undergo the training regularly and punctually. Absence upto a maximum of 15% of the training period is, however, considered by the University not detrimental to the training. A candidate cannot be permitted to claim, within the period of training, on completion of 85% of part of the training period that he is either entitled to lake the examination which would be scheduled immediately thereafter or to join any other course as if the training period is over. Such an assumption will be erroneous. It is only when a candidate completes the whole period of training that he can request that his absence upto the maximum of 15% be condoned to enable him to take the examination held at the end of the period of training.'

For the aforesaid reasons, no significance need be attached to the extra classes alleged to have been conducted by the Principal of the College so as to make up the study of syllabus by the petitioners. It is not as if 120 teaching days can be completed in four months. Each semester has to be necessarily spread over a period of six months. Both the requirements are intermixed.

20. At this stage, it is required tonotice that prior to these regulations which have come into force with effect from4-3-1997 the regulations mandated that first 18 months shall be occupied in the study of Phase I (Pre-clinical) subjects. The period is now reduced to two semesters of six months each. The University proceeds on the assumption that the old regulations are applicable in case of 1997-98 batch of students. Learned Standing Counsel for the University brings to my notice the resolution of the Executive Council of the University approving the decision of the Academic Council in this regard. The Executive Council in its meeting held on 31-12-1997 resolved to implement ihe Medical Council of India Regulations of Graduate Medical Education-1997 instead of i 997-98 in view of the fact that the regulations are received only in July, 1997. In the resolution it is observed that it is not feasible lo implement the Regulations for the 1997-98 batch. It is also stated by the learned Standing Counsel for the University that many of the Medical and Health Universities have taken such decision to implement the regulations framed by the Indian Medical Council only with effect from the academic year 1998-99 instead of 1997-98. As noticed earlier, the regulations have come into force with effect from 17-5-1997. Admissions into the first year MBBS course for the regular batch for the year 1997-98 for whatever reasons were finalised in the month of January, 1998 and whereas the admissions of the petitioners, though for the same batch were completed in the month of May, 1998. Under those circumstances, 1 find it difficult to appreciate the stand taken by the University. As held by the Apex Court in Medical Council of India's case (supra) the regulations framed under Section 33 of the Act with the previous sanction of the Central Government are statutory in nature and will have statutory force. It is rather surprising to notice the University taking such plea as if it is not bound by the regulations which are statutory in nature. The University of Health Sciences, the Medical Institutions and the studentsundergoing study are all equally bound by the regulations. No institution or person can be allowed (o have their own choice'in the matter of implementing and following statutes. Statutes and instruments in the nature of the statute come into operation as provided for in the Act. The discretion is given only to the Executive in the matter of notifying as to form what date the statute or the statutory instructions would come into operation. In some of the statutes the Act itself declares as to with effect from what date it shall come into force, leaving no option even to the executive to specify as to the operation of the statute. Operation and commencement of a statute is not a matter of choice. In the instant case, the Medical Council in categorical terms declared in the notification that the Regulations shall come into force on the date of the publication in their official Gazette. Regulations are accordingly published and notified in the Gazette of India on 17-5-1997. The regulations have accordingly come into force with effect from 17-5-1997 leaving no option, to any University, Institution or individuals in the matter of implementation of the Regulations. The regulations have the force of the statute.

21. Admissions were finalised for the 1997-98 batch after the regulations have come into force with effect from 17-5-1997. It is therefore, clear that there is no choice left of the University or Medical Institutions in the State of Andhra Pradesh in the matter of implementation of the Regulations. The University has no discretion in the matter except to follow and implement the regulations immediately with effect from 17-5-1997. Even otherwise the University has admitted that it received the copy of the Regulations in July, 1997 itself and whereas the admission for the year 1997-98 batch have taken place during the year 1998.

22. For the aforesaid reasons, I have to hold the admissions of the petitionersinto first year MBBS for 1997-98 batch, the course of study and duration thereof and the examinations to be conducted by the University are required to be regulated by the 'Regulations on Graduate Medial Education, 1997.' Viewed from that angle, the question that would arise for consideration is as to whether the petitioners are not entitled to appear for the examinations to be held in the month of April, 1999? Their course of study of 1st Phase commenced only with effect from May, 1998. They would be completing two semesters of six months each in the month of May, 1999. They are entitled to appear for the examinations even during the second semester, however, subject to their completing the period of certified study extending over a period of two semesters of six months each. Evidently, they will be completing the same in the month of May, 1999 and entitled to appear for the examination after such completion, however, subject to the requirement of attendance. It is clear from the Regulation that the second semester spread over for a period of six months would include the period required for conducting the examinations. It is not as if examinations are to be held only after completion of six months period. The examinations and completion of six months can be co-terminus. The University is bound to hold the examinations for these petitioners immediately on their completion of study of two semesters of six months each consisting of approximately 240 teaching classes. The decision of the University to hold the examinations for the petitioners in the month of October, 1999 is accordingly declared illegal and ultra vires.

23. It is now brought to my notice about which there is no dispute that the examinations for the regular students are to commence from 26-4-1989 and the practicals to commence from 17-5-1999. Examination includes the practicals. It is thus clear that the petitioners fulfil therequirement of the regulations as they would be completing the study of one year divided into semesters of six months each by the time of completion of examinations. Thus the petitioners are entitled to appear for the examinations commencing from 26-4-1999 along with the batch of students who are admitted in the month of January, 1998. There shall be an order accordingly. The respondents are accordingly directed to permit the petitioners to appear for the examinations commencing from 26-4-1999.

24. The writ petitions are accordingly allowed. No order as to costs.


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