Dr. Muhzina Mariam Rahim, Dr. Jabin Ashraf T.P., Dr. Roshan Bastin, Dr. Sharon Paulson v Board of Governors in Superession of Medical Council of India, Union of India, Registrar, Kerala University of Health Sciences, Principal, Government Medical College, Kannur, and Principal, Malankara Orthodox Syrian Church Medical College, Kolenchery

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **WP(C).No.2021 OF 2020(C)** ## **PETITIONER/S:** - **1 DR. MUHZINA MARIAM RAHIM AGED 27 YEARS D/O.P.S.RAHIM, R/O.VAYALIRAMPU PADINJATTETHIL, EDATHARA, KALANJOOR (P.O), KOLLAM-689694.** - **2 DR.JABIN ASHRAF.T.P., AGED 29 YEARS D/O.MUHAMMED ASHRAF T.P., R/O.THEKKUMPURATH HOUSE, AYINTHOOR, EDAVANNA (P.O), MALAPPURAM676541.** - **3 DR.ROSHAN BASTIN, AGED 28 YEARS S/O.BASTIN LOVIS, R/O.5C PINEWOOD, SKYLINE CITY PARK APARTMENTS, JAWAHAR NAGAR, KADAVANTHRA, KOCHI-682020.** - **4 DR.SHARON PAULSON, AGED 27 YEARS D/O.PAULSON THOMAS, R/O.MEKKATTUKUNNEL HOUSE, MEVADA (P.O), KOTTAYAM-670503.** ## **BY ADV. V.A.HARITHA** ## **RESPONDENT/S:** - **1 BOARD OF GOVERNORS IN SUPERSESSION OF MEDICAL COUNCIL OF INDIA REPRESENTED BY ITS CHAIRMAN, POCKET-14, SECTOR-8, DWARAKA PHASE, NEW DELHI-110077.** - **2 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI- 110077.** _**WP(C).No.2021/20**_ 2 - **3 THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, MULAMKUNNATHUKAVU, THRISSUR-680596.** - **4 THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, KANNUR-670503.** - **5 THE PRINCIPAL, MALAKARA ORTHODOX SYRIAN CHURCH MEDICAL COLLEGE, KOLENCHERY, ERNAKULAM-682311.** **R1 BY SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA R2 BY SRI.ANISH JAIN, CGC R3 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES** ## **OTHER PRESENT:** ## **ASG P.VIJAYAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1506-2020, THE COURT ON 22-06-2020 DELIVERED THE FOLLOWING:** ## **V.G.ARUN, J.** ## **----------------------------------------------W.P(C).No.2021 of 2020 ----------------------------------------------Dated this the 22[nd] day of June, 2020** ## **JUDGMENT** The petitioners are pursuing their P.G.Diploma Courses in various subjects. They joined for the course in the year 2018. According to the petitioners, after acquiring MBBS degree, doctors can pursue either M.D/M.S course of three year duration or two year P.G.Diploma course. The petitioners contend that in terms of curriculum training and MCI requirements like infrastructure and teaching facilities, both the courses are equal. The petitioners' lament that, in spite of acquiring the P.G.Diploma, they are treated as equal to only graduate doctors and have to face several disadvantages in terms of job opportunities and future career, when compared with P.G.Degree holders. As per the Medical Council of India (MCI) norms, diploma holders cannot pursue super specialisation and cannot apply for academic positions at Medical Colleges. Even though P.G.Diploma holders were allowed to work as Senior Residents at Medical Colleges, after _**WP(C).No.2021/20**_ 4 issuance of the “Minimum Qualifications for Teachers in Medical Institutions (Amendment) Regulations, 2017”, P.G.Diploma holders cannot even practice as Senior Residents. While so, the Medical Council of India issued Exhibit P3 amendment notification, amending the provisions of the 'Opening of a New or Higher Course of Study or Training (including Post-graduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000' (hereinafter referred to as 'the Regulations, 2000'). The amendment to Clause 3(8) of the Regulations, 2000 is as under; _“A Medical College/Medical Institution shall be entitled to seek equal number of postgraduate degree (MD/MS) seats by surrendering recognised Diploma seats in corresponding course. For such purposes the applicant Medical College/Medical Institution shall make an application to the Central Government along with an undertaking for stopping admission. The Central Government shall on receipt of such application issue a notification omitting the name of Diploma in respect of the said Medical College/Medical Institution. The Central Government shall forward the application alongwith omission notification and undertaking to the Council for recommendation. The Council after verifying the documents shall make an appropriate recommendation to the Central Government without any physical verification in normal circumstances. However, Council may, if so require carry out physical verification assessment before making my recommendation to the Central Government. Such recommendation shall be for inclusion of degree course against the increased intake in the First Schedule of IMC Act, 1956. The_ _**WP(C).No.2021/20**_ 5 _decision by the Central Government in this regard shall be taken on or before the last date of grant of permission in respect of broad speciality courses for that academic year. Further, the surrendered Diploma seats shall not be included in the seat matrix of the subsequent academic years.”_ By virtue of the amendment, every medical institution in the country became eligible to apply for enhancement P.G.Degree seats, on surrender of the existing P.G.Diploma seats. The amendment not being retrospective, is applicable only from 2019 onwards. The petitioners being in the 2018-20 batch, the benefit of the amendment would not be available to them. 2. The petitioners contend that having decided to permit conversion of the existing P.G.Diploma seats to P.G.Degree seats, the Medical Council of India should have extended the benefit to the existing students also. According to the petitioners, failure to give retrospective effect to the amendment amounts to discrimination and violates the guarantee of equal rights. The petitioners therefore challenge Exhibit P3 notification to the extent it excludes the 2018-20 batch of P.G.Diploma students from its purview. 3. According to the Medical Council of India, by enacting Exhibit P3, neither was any statutory right of the petitioner violated nor was there any failure by the Council to perform its statutory obligations. It is contended that the petitioners have no legal right to demand that Exhibit P3 notification should be given retrospective effect. The notification is intended to be prospective, inasmuch as a Medical _**WP(C).No.2021/20**_ 6 College/Medical Institution is entitled to seek increased number of MD/MS seats by surrendering equal number diploma seats and such surrender cannot be made in the case of ongoing P.G.Diploma courses. 4. Heard Ms.Haritha V.A, learned counsel for the petitioners and Sri.Titus Mani Vettom, learned Standing Counsel for the Medical Council of India. 5. Learned counsel for the petitioner made elaborated on the discrimination meted out to P.G.Diploma holders. It is submitted that the career prospects of the petitioners, which is already bleak, will be ruined if the benefit of the amendment is not extended to the 2018-20 batch also. It is pointed out that the petitioners have sought a direction to the Principals of their respective Colleges to surrender the existing P.G.Diploma seats, including the seats of the 2018-20 batch and to get those seats converted to P.G.Degree seats. It is submitted that no prejudice would be caused by adopting such procedure since the curriculum is the same for both courses. 6. The learned Standing Counsel submitted that Exhibit P3 notification was issued after obtaining approval from the Central Government and is intended to be prospective in operation. It is contended that the wording of Exhibit P3 itself would show that it is meant to be prospective. The learned Standing Counsel further contends that there is no valid legal ground in the writ petition for _**WP(C).No.2021/20**_ 7 quashing Exhibit P3 and that, as held by the Honourable Supreme Court in _**State of Tamil Nadu v. P.Krishnamurthy**_ [(2006) 4 SCC 517], there is a presumption in faovur of constitutionality or validity of a subordinate legislation and the burden is upon the person who attacks the legislation to show that it is invalid. 7. On consideration of rival submissions, I find that the contentions of the petitioners of P.G.Diploma being equal to the P.G.Degree course to be untenable. As admitted by the petitioners themselves, even the duration of the two courses are different. No material is made available to compare the curriculum and syllabus of the two courses come to assume that both courses are the same. In such circumstances, there cannot be a direction permitting the conversion of the ongoing P.G.Diploma seats to P.G.Degree seats. The intention behind Exhibit P3, as discernible from the notification, is to increase the number of doctors with Post Graduate Degree without increase in the number of seats. Therefore, no discrimination is meted out to the petitioners under Exhibit P3 notification. The petitioners have no legal right to demand that the notification should be given retrospective effect. The decision in that regard is within the exclusive domain of the regulatory body, which in this case is the Medical Council of India and no interference can be made to such decisions merely for the reason that it causes heartburn to a small section of doctors. At best, the petitioners can ventilate their grievance before _**WP(C).No.2021/20**_ 8 the Council through an appropriate representation. The petitioner having filed Exhibit P6 representation, the Council shall take a decision thereon in accordance with law, provided Exhibit P6 is pending in its files without consideration. The writ petition is disposed of as above. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**WP(C).No.2021/20**_ 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION OF MEDICAL COUNCIL OF INDIA DATED 05.06.2017 NAMELY THE "MINIMUM QUALIFICATIONS FOR TEACHERS IN MEDICAL INSTITUTIONS (AMENDED) REGULATIONS, 2017".** **EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTE OF DISSENT BY DR.KAMARAJ M.P. (LOKSABHA) ON THE NATIONAL MEDICAL COMMISSION BILL, 2017.** **EXHIBIT P3 TRUE COPY OF THE AMENDMENT NOTIFICATION OF MEDICAL COUNCIL OF INDIA DATED 12.07.2018.** - **EXHIBIT P4 TRUE COPY OF THE CORRIGENDUM DATED 10.3.2019 PUBLISHED BY THE BOARD OF GOVERNORS (IN SUPERSESSION OF MEDICAL COUNCIL OF INDIA).** **EXHIBIT P5 TRUE COPY OF THE REGULATIONS OF UNIVERSITY OF HEALTH SCIENCE FOR POST GRADUATE DEGREE IN MEDICINE AND POST GRADUATE DIPLOMA IN MEDICINE KERALA.** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 12.12.2019 SENT BY THE PETITIONERS TO THE BOARD OF GOVERNORS IN SUPERSESSION OF MEDICAL COUNCIL OF INDIA.** **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 12.12.2019 SENT BY THE PETITIONERS TO THE MINISTRY OF FAMILY AND HEALTHCARE.**