M.RAMESH v. Central Government Labour Court

2.MEDICAL COUNCIL OF INDIAREP. BY ITS SECRETARYAIWAN-E-GALIB MARGKOTIA ROADOPP. MATA SUNDARY COLLEGE FOR WOMENNEW DELHI – 110 002.3.STATE OF TAMIL NADUREP. BY ITS SECRETARY TO GOVERNMENTHEALTH AND FAMILY WELFARE (MCA 1) DEPARTMENTFORT ST. GEORGECHENNAI – 600 009.4.THE TAMIL NADU DR. M.G.R.MEDICAL UNIVERSITYNO.69, ANNA SALAIGUINDY, CHENNAI – 600 032.... Respondents in all the WPs.Writ Petitions filed under Article 226 of the Constitution ofIndia praying for the issuance of Writs of Declaration declaringRegulation for PG Diploma in Health Sciences of the year 2011-2012commenced by the fourth respondent as ultra vires to the Constitutionof India and illegal and contrary to the provisions of the IndianMedical Council Act, 1956.For Petitioners: Mr.K.M.Vijayan Senior Counsel for M/s.K.M.Vijayan AssociatesFor Respondent No.1 : Mr.N.Mariappan Central Government Standing CounselFor Respondent No.2 : Mr.V.P.RamanFor Respondent No.3 : Mr.P.Sanjai Gandhi, AGPFor Respondent No.4: Mr.Kalyanasundaram Senior Counsel for Mr.K.C.SrinivasanCOMMON ORDERThese writ petitions are filed praying to issue Writs ofdeclaration to declare the Regulation for Post Graduate Diploma inHealth Sciences of the year 2011-2012 commenced by the fourthrespondent as ultra vires to the Constitution of India and illegaland contrary to the provisions of the Indian Medical Council Act,1956. https://hcservices.ecourts.gov.in/hcservices/

2. Brief facts necessary for disposal of these writ petitionsare as follows: All the petitioners (25) in these writ petitions are PostGraduate students in Medicine and are currently undergoing M.D.R.D.(Radio Diagnosis) and Diploma course DMRD in Medical Colleges inTamil Nadu in the approved seats of the Medical Council of India. TheTamil Nadu Dr.M.G.R.Medical University proposed to introduce/commence11 P.G.Diploma courses in Medical Sciences without any approval fromthe Central Government and Medical Council of India, namely,1.HIV MedicineOne Year2.Occupational HealthOne Year3.Palliative MedicineOne Year4.Clinical ImmunologyOne Year5.Medical GeneticsTwo Years6.Critical Care in MedicineTwo Years7.Family Medicine-Distance EducationTwo Years8.Medical ImagingTwo Years9.Diagnostic UltrasoundTwo Years10.Clinical Laboratory MedicineTwo Years11.Clinical DiabetologyTwo Years3. According to the petitioners, the above said courses are partof recognized courses approved by the Medical Council ofIndia/Central Government, which are being conducted through differentcolleges and examinations are conducted by the fourth respondent-University. For instance, the courses Medical Imaging and DiagnosticUltrasound are part of M.D.(Radio Diagnosis) and also the course,namely, Diploma in Medical Radio Diagnosis. The fourth respondentsplitted and carved out the syllabus framed by the Medical Council ofIndia recognized courses and introducing the above new courseswithout any approval/recognition from the Medical Council of India orCentral Government. The petitioners being students of approvedcourses are prejudiced and having aggrieved against the illegalintroduction of new P.G.Diploma courses in Medical Sciences havefiled these writ petitions with the above said prayer.4. The action of the fourth respondent in allowing above said 11courses in certain institutions to admit students is in effectencouraging private centres to conduct courses in competition to thestudents, who are admitted to the approved courses by the MedicalCouncil of India, for which, common entrance examination is conductedand seats are filled up on the basis of merit alone. In the proposedP.G.Diploma Courses in Medical Sciences, the choice of admission isleft to the institutions/centres, which is in effectcommercialisation of medical education. The private hospitals andinstitutions are permitted to open education centres to run the abovecourses and the same is in contravention of Section 10A of the https://hcservices.ecourts.gov.in/hcservices/ Medical Council of India Act, 1956 (hereinafter called as the"Medical Council of India Act, 1956"), which prohibits any personincluding the University to open a new course without previouspermission of the Central Government or the recommendations of theMedical Council of India. Section 10A Explanation 1 defines, a"person", which includes University. The action of the fourthrespondent in permitting to conduct the said courses independentlywithout prior permission of Central Government is contrary to Section11(2) of the Medical Council of India Act, 1956. The Medical Councilof India being the sole authority to frame Regulations and Guidelinesin respect of standards and conduct of medical education created byan Act of Parliament cannot be by-passed by creating parallelP.G.Diploma/Certificate courses in the streams already conducted bythe Medical Council of India. The courses offered by the Regulationbeing identical of the courses within the schedule of recognizedqualification of the Medical Council of India, which is virtually anact to create duplicate unrecognised courses without approval of theCentral Government as well as the Medical Council of India andstudents to be admitted will not get the P.G.Diploma recognised bythe Medical Council of India. 5. The action of the fourth respondent is in violation ofSection 3 of the Indian Medical Degrees Act, 1916, which prohibitsauthorities other than those specified by the statute to confer,grant or issue degree, diploma license, certificate or other documentas qualified in Medical Science. The fourth respondent has no powerto make law in respect of the field occupied to the CentralGovernment as per Entry 66 of List 1 of the 7th Schedule of theConstitution of India.6. The fourth respondent-University has filed a common counteraffidavit opposing the prayer contending that in order to improve theskills of Under-Graduate candidates, who have qualified in M.B.B.S.,Degree, the University has decided to start P.G.Diploma in MedicalSciences from the academic year 2011-2012 and the said decision wastaken to meet the needs of the community and society at large. TheP.G.Diploma courses are designed as a comprehensive package, thecandidates get exposure to the various abstract disciplines withclinical skills. The diploma courses can cater to the various sectorsof medicine, which does not have a graduate degree from therecognized bodies. 7. The fourth respondent-University constituted an ExpertCommittee to start One/Two Years Post Graduate courses under HealthSciences and also to formulate the Regulation, Syllabi and curriculumfor the said courses. The Medical Council of India is conductingonly P.G.Degree and some diploma courses and it is not conductingparallel P.G.Diploma course proposed to be conducted by theUniversity. The question of carving the syllabus from the recognizedcourses of Medical Council of India will not arise as separate https://hcservices.ecourts.gov.in/hcservices/ syllabus is prescribed. The agenda for the commencement of thecourses was placed before the 202nd Meeting was held on 17.3.2011 anda decision was taken to start the course of One and Two yearsduration on the P.G.Diploma level, namely, 1.HIV MedicineOne Year2.Occupational HealthOne Year3.Palliative MedicineOne Year4.Medical GeneticsTwo Years5.ImmunologyTwo Years6.Critical Care in MedicineTwo Years8. It is also contended in the counter affidavit that theStanding Academic Board has got power to advise the Governing Councilon the promotion of research in the University and to suggestmeasures for revisions and innovations in academic and researchprogrammes. The Standing Academic Board in its 41st meeting held on14.6.2011 resolved to start P.G. Diploma courses only inspecialities, in which, no courses are available and the said coursesshall be named as P.G.Diploma in Medical Sciences and an ExpertCommittee was constituted on 16.6.2011, which also examined thematter regarding the syllabus and name of the course and the saidsuggestion was also approved by the Governing Council in its 204thmeeting held on 12.7.2011 and Resolution No.30 was passed to approvethe Resolution of the 41st meeting of the Standing Academic Board. Itis further stated that most of the Post Graduate Degree holders arenot willing to serve in rural areas and only M.B.B.S. qualifiedDoctors are available in rural areas and for helping the UnderGraduate Doctors to improve their clinical and practical knowledge,the said courses are proposed to be commenced. The contribution ofprivate colleges is also very important, especially, in the medicalfield. Hence, the University has decided to start the courses inprivate institutions as well as in one Government institution. TheUniversity has drawn up a detailed list of infrastructure asprescribed by the Medical Council of India. The number of seats ineach course has been restricted to 2-5. At present, 11 institutionsincluding one Government institution have approached the Universityto grant approval to commence the said courses. The Tamil NaduDr.M.G.R.Medical University Chennai, Act, 1987 empowers to conferdegrees/diplomas and the institutions other than teaching institutionare to be treated as approved institutions and therefore there is nolegal impediment to start the courses by the said institutions. TheP.G.Diploma Courses in Medical Science likely to be commenced by theapproved institutions are not coming under Schedule 1 of the MedicalCouncil of India Act,1956 and the said courses are not parallelcourses conducted by the Medical Council of India. The otheruniversities such as Annamalai University, Alagappa University,Indira Gandhi Open University are conducting P.G.Diploma courses intheir respective universities under Distance Education Mode. Thequestion of getting permission from the Central Government or https://hcservices.ecourts.gov.in/hcservices/ recognition from the Medical Council of India is not necessary as thepersons, who are going to get P.G.Diplomas in Medical Sciences arenot going to enrol in any of the State Medical Council or CentralCouncil and there is no justification for the petitioners numbering25 to challenge the action of the University in these writ petitions.9. The Medical Council of India has filed a separate counteraffidavit contending that the Medical Council of India being astatutory authority created and constituted by the Central Governmentunder the Indian Medical Council Act, 1956, is the competentauthority for recommending the Central Government for granting priorpermission for establishing any Medical College or starting anyhigher course of study or for increase of intake in anycollege/institution. 10. Section 10A of the Medical Council of India Act, 1956 isapplicable including to Universities and also for any course ortraining including diploma courses. Any course started by any MedicalCollege or Institution in contravention of the statutory scheme ofthe Medical Council of India would result in denial of recognition ofthe medical qualification. The standard of medical education and itsco-ordination is occupied by the Medical Council of India Act, 1956and the regulations framed thereunder and the same will prevail overall other enactments as per Section 10A of the Medical Council ofIndia Act, 1956. Stating the said reasons, the Medical Council ofIndia has prayed for declaring the Regulation issued by the fourthrespondent as illegal, which in effect in supporting the case of thepetitioners.11. Mr.K.M.Vijayan, learned Senior Counsel for the petitionerssubmitted that the fourth respondent-University is proposing tocommence 11 Diploma Courses without prior permission of the CentralGovernment, which is bound to be obtained by any institution toconduct course/courses under Section 10A of the Medical Council ofIndia Act, 1956 as amended by Act 31 of 1993, which came into forcefrom 27.8.1992. The learned Senior Counsel also submitted that eventhe University cannot conduct any course within its campus as a'person' mentioned in Section 10A (1)(a), gives a meaning inExplanation 1 as "person includes any University or a trust but doesnot include the Central Government". The learned Senior Counselfurther submitted that an attempt was made earlier by the StateGovernment to conduct Certified Diploma Course in Diabetology bydistance mode (Six Months Course) through G.O.(D) No.572, Health andFamily Welfare (MCA1) Department, dated 14.5.2008 in 14 GovernmentMedical Colleges with an intake students of 75 each of 750 in MadrasMedical College, Chennai and Kilpauk Medical College, Chennai and 50each in other Government Medical Colleges. The said GovernmentOrder was challenged before this Court by four Doctors inW.P.No.18829 of 2008 and the Division Bench of this Court consideringthe prohibition imposed under Section 10A of the Medical Council of https://hcservices.ecourts.gov.in/hcservices/ India Act, 1956 set aside the Government Order holding that anycourse in the medical field can be commenced only with priorpermission from the Central Government as per Section 10A of theMedical Council of India Act, 1956 as the field is completelyoccupied in Entry 66 of List 1 and the State Government has no powerto commence any course and if the same is permitted, it will begranting permission to introduce parallel course, which is not incompliance with the laws made by the Parliament. It was furtherordered that even the persons, who have undergone the CertifiedCourse are not entitled to get any Certificate, taking note of theincompetency of the State Government to start such Certified Coursein Government Medical Colleges and the said decision is reported in2008 (6) CTC 568 (Dr.V.Balaji vs. Union of India).12. The learned Senior Counsel for the petitioners alsosubmitted that unlike the All India Council for Technical EducationAct, 1987, the Medical Council of India Act, 1956 is very specificwhich prohibits commencement of any course including universitieswithout prior permission from the Central Government. Therefore, thejudgment rendered by the Honourable Supreme Court in the decisionreported in 2001 (8) SCC 676 (Bharathidasan University and Anothervs. All India Council for Technical Education and Others) isdistinguishable and the same cannot be relied on by the fourthrespondent to justify the issue raised in these writ petitions. Thelearned Senior Counsel also cited other judgments in support of hisarguments. 13. Mr.M.Kalayanasundaram, learned Senior Counsel for thefourth respondent submitted that the Tamil Nadu Dr.M.G.R.MedicalUniversity Act, 1987 was enacted to establish the fourth respondent-University and the University has already been included in the listof approved universities in the schedule of the Medical Council ofIndia. Section 4 of the said Act mentions about the objects of theuniversity, which includes providing instruction and training in suchbranches of learning in the field of Medical Science; to institutedegrees, diplomas and other academic distinctions; to organiseadvanced studies and health programme from time to time, etc. 14. Section 5 of the said Act empowers the University to holdexaminations and to confer degrees, diplomas and other academicdistinctions on any person, who has pursued an approved course ofstudy or training in a college or University; to establish, maintainand manage institutes of research, University colleges, departmentsto carry out the objects of the University and by virtue of the saidpowers, the University is competent to authorise institutions toconduct P.G.Diploma in Medical Sciences and the said courses can beoffered to the Medical Graduates i.e. who have passed M.B.B.S.Degree,for which, the Medical Council of India has already granted approvaland the P.G.Diploma Certificates to be issued need not be approved bythe Medical Council of India and the candidates passing out can https://hcservices.ecourts.gov.in/hcservices/ suffix the said Diploma along with their degree qualification. 15. Learned Senior Counsel for the fourth respondent-Universityalso submitted that the academic board is competent to decide aboutany issue including granting of permission to conduct P.G.DiplomaCourses in Medical Sciences by any institution and Section 44 of thesaid Act clearly states that the Regulation shall be placed beforethe Governing Council for information and the said procedure havingbeen followed proposing to commence courses in various institutionsincluding two Medical Colleges are well within the powers of thefourth respondent. The learned Senior Counsel further submitted thatthe courses now proposed to be conducted are not parallel coursesconducted by the Medical Council of India and the University isconferred with the power by the State Government, which is competentto enact under Entry 26 of List 3 and therefore, there is norepugnancy with the Central Act, Medical Council of India Act.Learned Senior Counsel argued that the decision cited by the learnedSenior Counsel for the petitioners, i.e., 2008 (6) CTC 568(Dr.V.Balaji vs. Union of India) cannot be applied to the facts ofthis case, contending that in this case permission was granted by theuniversity and not by Government. Learned Senior Counsel alsosubmitted that some other universities are conducting courses withoutthe approval of the Central Government or Medical Council of Indiaand no action is taken by the Central Government or Medical Councilof India against the said universities.16. Mr.V.P.Raman, learned counsel for the second respondent,relying on the counter affidavit filed, submitted that the fourthrespondent-University has no power or authority to grant permissionto any institution to offer P.G.Diploma courses, which are notapproved by the Central Government or the Medical Council of India.Section 10A of the Medical Council of India Act, 1956 clearly barsany person including universities to conduct any course withoutpermission from the Central Government on and after 27.8.1992. Thelearned counsel also submitted that the Tamil Nadu Dr.M.G.R.MedicalUniversity Chennai Act, 1987 having been enacted prior to theamendment issued to Section 10A of the Medical Council of India Act,1956 (Amendment Act 31 of 1993), which clearly states thatnotwithstanding anything contained in this Act or any other law forthe time being course, no person shall establish the Medical Collegeand no Medical College shall open a new or higher course of study ortraining and in admission for increase of intake of a person withoutprior permission from the Central Government obtained in advance. 17. The learned counsel for the second respondent also submittedthat the said issue is already settled by series of decisions of thisCourt as well as the Honourable Supreme Court. The learned counselalso argued that if any other university is conducting any medicalcourse/courses without the permission of the CentralGovernment/Medical Council of India, the same is illegal and there https://hcservices.ecourts.gov.in/hcservices/ cannot be equality in illegality. 18. Mr.P.Sanjai Gandhi, the learned Additional GovernmentPleader appearing for the third respondent supported the contentionsraised by the fourth respondent-University and submitted that as perthe Tamil Nadu Dr.M.G.R.Medical University Chennai Act, 1987, theP.G.Diploma courses now proposed to be permitted by the University intwo colleges and other institutions are permissible and there is noillegality in the said action of the fourth respondent-University.19. In reply to the said submission, the learned Senior Counselfor the petitioners submitted that the contention of the SeniorCounsel for the fourth respondent-University that the Tamil NaduDr.M.G.R.Medical University Chennai Act, 1987 will prevail over theMedical Council of India Act, 1956 and Regulations framed cannot beaccepted, as the very same contention of the university was repelledin the judgment of the Honourable Supreme Court in THIRUMURUGAKIRUPANANDA VARIYAR THAVATHIRU SUNDARA SWAMIGAL MEDICAL EDUCATIONALAND CHARITABLE TRUST VS. STATE OF TAMIL NADU & OTHERS reported in AIR1996 SC 2384. The learned Senior Counsel also submitted that theUniversity is only an affiliating body and it cannot conduct anycourse of study, as it is coming under Section 11(2) of the MedicalCouncil of India Act, 1956 to get recognition from the CentralGovernment and thereafter only, the qualification awarded will beincluded in the First Schedule in consultation with the MedicalCouncil of India. The learned Senior Counsel also relied onRegulation 7.20 of the Indian Medical Council (Professional Conduct,Etiquette and Ethics) Regulations, 2002 and contended that theP.G.Diploma courses now proposed to be conducted and persons, who arepassing the same cannot be treated as specialist and they cannot alsosuffix their P.G.Diploma in Medical Sciences along with their degreequalification. 20. I have considered the rival submissions made by therespective learned Senior Counsels and other learned other counselsappearing for the respective parties as well as the pleadings.21. The point arises for consideration is, whether the fourthrespondent-University is competent to grant permission to conductP.G.Diploma Courses in Medical Sciences from the academic year 2011-2012 to the hospitals/institutions without getting prior permissionfrom the Central Government, which can be granted only on the basisof the recommendation made by the Medical Council of India. 22. It is an admitted case of the fourth respondent-Universitythat without previous permission from the Central Government ascontemplated under Section 10A of the Medical Council of India Act,1956, the University decided to start P.G.Diploma courses in MedicalScience and granted permission to conduct courses in 11hospitals/medical colleges for one year/two years course in the https://hcservices.ecourts.gov.in/hcservices/ following courses.1.HIV MedicineOne Year2.Occupational HealthOne Year3.Palliative MedicineOne Year4.Clinical ImmunologyOne Year5.Medical GeneticsTwo Years6.Critical Care in MedicineTwo Years7.Family Medicine-Distance EducationTwo Years8.Medical ImagingTwo Years9.Diagnostic UltrasoundTwo Years10.Clinical Laboratory MedicineTwo Years11.Clinical DiabetologyTwo Years23. The primary contention of the petitioners is that withoutprevious permission from the Central Government, no institutionincluding any University can commence a new or higher course of studyor training including post graduate course of study or training toestablish either in the university or permit any hospital orinstitution and the same is prohibited under Section 10A of theMedical Council of India Act, 1956 as amended by Amendment Act 31 of1993, which came into force from 27.8.1992. 24. Section 2(a)(e) and (1) are other relevant provisions to beconsidered. Section 2(a) reads as follows:-" 2(a) "approved institution" means a hospital, healthcentre or other such institution recognised by a universityas an institution in which a person may undergo the training,if any, required by his course of study before the award ofany medical qualification to him.2(e) "medical institution" means any institution, withinor without India, which grants degrees, diplomas or licencesin medicine.2(l) "University" means any University in Indiaestablished by law and having a medical faculty." The medical colleges and institutions, which are granted permissionby the university to conduct P.G.Diploma courses are coming withinthe "medical institution" and "approved institution".25. The procedure for getting prior permission for establishingof a new medical college or institution, new course of study etc.,are clearly spelt out in Section 10A of the said Act. The relevantportion of the said Section reads as follows:-"10A. Permission for establishment of newmedical college, new course of study.- https://hcservices.ecourts.gov.in/hcservices/ (1) Notwithstanding anything contained in this Actor any other law for the time being in force,-(a) no person shall establish a medicalcollege; or(b) no medical college shall-(i) open a new or higher course of study ortraining (including a post-graduate course ofstudy or training) which would enable a student ofsuch course or training to qualify himself for theaward of any recognised medical qualification; or(ii) increase its admission capacity in anycourse of study or training (including a post-graduate course of study or training),except with the previous permission of the CentralGovernment obtained in accordance with theprovisions of this section.Explanation 1.-For the purposes of thissection, "person" includes any University or atrust but does not include the Central Government.Explanation 2.-For the purposes of thissection "admission capacity" in relation to anycourse of study or training (includingpostgraduate course of study or training) in amedical college, means the maximum number ofstudents that may be fixed by the Council fromtime to time for being admitted to such course ortraining.(2)(a) Every person or medical college shall,for the purpose of obtaining permission under sub-section(1), submit to the Central Government ascheme in accordance with the provisions of clause(b) and the Central Government shall refer thescheme to the Council for its recommendations.(b) The scheme referred to in clause (a)shall be in such form and contain such particularsand be preferred in such manner and be accompaniedwith such fee as may be prescribed.(3) On receipt of a scheme by the Councilunder sub-section (2), the Council may obtain suchother particulars as may be considered necessaryby it from the person or the medical college https://hcservices.ecourts.gov.in/hcservices/ concerned, and thereafter, it may,-(a) if the scheme is defective and does notcontain any necessary particulars, give areasonable opportunity to the person or collegeconcerned for making a written representation andit shall be open to such person or medical collegeto rectify the defects, if any, specified by theCouncil;(b) consider the scheme, having regard to thefactors referred to in sub-section (7), and submitthe scheme together with its recommendationsthereon to the Central Government.(4) The Central Government may, after consideringthe scheme and the recommendations of the Councilunder sub-section (3) and after obtaining, wherenecessary, such other particulars as may beconsidered necessary by it from the person orcollege concerned, and having regard to thefactors referred to in sub-section (7), eitherapprove (with such conditions, if any, as it mayconsider necessary) or disapprove the scheme, andany such approval shall be a permission under sub-section (1): ......."The said Section is prohibitory in nature as it starts with thewording that " notwithstanding anything contained in this Act orany other law for the time being force; no person shall establish amedical college or no medical college shall open a new or highercourse of study or training including a post graduate course of studyor training". Diploma Courses in Medical Sciences proposed to to beoffered for one year or two years course is coming within the meaningof post graduate course of study or training. Admittedly, noapplication seeking permission under sub-section 1 of Section 10A hasbeen submitted before the Central Government or the Medical Councilof India either by the fourth respondent-University or the 11hospitals/institutions, which are now granted permission to conductcertain courses. 26. The contention of the University is that the "University"being created under the Tamil Nadu Dr.M.G.R.Medical UniversityChennai Act, 1987 (Tamil Nadu Act 37 of 1987), can commence coursesor grant permission to approved institutions to conduct degrees,diplomas/certificates and the said enactment (Act) will prevail overthe Medical Council of India Act, 1956, therefore, no permissionneed be obtained under Section 10A of the Act. Section 10A clearlystates that "no person shall establish a medical college or no https://hcservices.ecourts.gov.in/hcservices/ medical college shall open a new or higher course of study ortraining including a post-graduate course of study or training" andin Explanation 1, it is stated that "person" includes any "Universityor a trust" but does not include the Central Government. The fourthrespondent-University is a University established under the TamilNadu Act 37 of 1987. Therefore, the fourth respondent-University isalso coming within the meaning of "person" under the Medical Councilof India Act, 1956. 27. Section 10A(1) of the Medical Council of India Act, 1956clearly states that "notwithstanding anything contained in this Actor any other law for the time being in force" includes the TamilNadu Act 37 of 1987 and therefore, the contention of the fourthrespondent-University that Section 10A will not preclude theUniversity from offering or granting permission to offer coursesthrough the approved institutions is unsustainable and the same is astatutory violation under Section 10A of the Medical Council of IndiaAct, 1956.28. A similar issue was considered by the Honourable SupremeCourt in the decision reported in AIR 1996 SC 2384 (THIRUMURUGAKIRUPANANDA VARIYAR THAVATHIRU SUNDARA SWAMIGAL MEDICAL EDUCATIONALAND CHARITABLE TRUST VS. STATE OF TAMIL NADU & OTHERS). In the saiddecision, the question arose was whether the State Legislation willprevail over the Central Legislation, namely, Section 10A of theMedical Council of India Act, 1956. The contention raised therein wasthat the provision under Section 5(5) of the Tamil Nadu Act 37 of1987 requiring prior permission of the State Government forestablishing a college is repugnant to rule under Section 10A of theAct. Paragraphs 31 and 32 of the said judgment, it was answered asfollows:-" 31. It would thus appear that in Section 10-AParliament has made a complete and exhaustiveprovision covering the entire field for establishingof new medical colleges in the country. No furtherscope is left for the operation of the StateLegislation in the said field which is fully coveredby the law made by Parliament. Applying the tests laiddown by this Court, it must be held that the provisoto sub-section (5) of Section 5 of the MedicalUniversity Act which was inserted by the State Actrequiring prior permission of the State Government forestablishing a college is repugnant to Section 10-Ainserted in the Indian Medical Council Act, 1956 bythe Central Act which prescribes the conditions forestablishing a new medical college in the country. Thesaid repugnancy is, however, confined to the fieldcovered by Section 10-A, viz., establishment of a newmedical college and would not extend to establishment https://hcservices.ecourts.gov.in/hcservices/ of other colleges.32. The fact that the State Act has received theassent of the President would be of no avail becausethe repugnancy is with the Central Act which wasenacted by Parliament after the enactment of the StateAct. In view of the proviso to sub-article (2) ofArticle 254 Parliament could add to, amend, vary orrepeal the State Act. In exercise of this powerParliament could repeal the State Act either expresslyor by implication. (See: Zaverbhai Amaidas v. State ofBombay, SCR at p. 809; Deep Chand v. State of U.P.,SCR at p. 51.) Although the Central Act does notexpressly amend or repeal the State Act but the effectof the non obstante clause in sub-section (1) ofSection 10-A which gives overriding effect to theprovisions of Section 10-A over anything contained inthe Indian Medical Council Act, 1956 or any other lawfor the time being in force, is to renderinapplicable, and thereby repeal impliedly, theproviso inserted in sub-section (5) of Section 5 ofthe Medical University Act in the matter ofestablishment of a new medical college in the State ofTamil Nadu and its affiliation by the MedicalUniversity. In other words, as a result of insertionof Section 10-A in the Indian Medical Council Act,1956 by the Central Act, with effect from 27-8-1992,the proviso to Section 5(5) of the Medical UniversityAct has ceased to apply in the matter of establishmentof a medical college in the State of Tamil Nadu andits affiliation to the Medical University and for thepurpose of establishing a medical college permissionof the Central Government has to be obtained inaccordance with the provisions of Section 10-A. Ifsuch a permission is granted by the Central Governmenta further permission of the State Government under theproviso to Section 5(5) of the Medical University Actwould not be required for the purpose of obtainingaffiliation of such a college to the MedicalUniversity."29. In the light of the said judgment of the Honourable SupremeCourt, the said contention raised by the learned Senior Counsel forthe fourth respondent-University cannot be countenanced.30. A similar attempt made by the State Government to introducesix months Certificate course of Diabetology numbering 750 seats inGovernment Medical Colleges by issuing Government Order in G.O.(D).NO.572, Health and Family Welfare (MCA1) Department, dated 14.5.2008 https://hcservices.ecourts.gov.in/hcservices/ was set aside by the Division Bench of this Court in the decisionreported in 2008 (6) CTC 568 (Dr.V.Balaji vs. Union of India) on theground that the said Government Order was issued in violation ofSections 10A of the Medical Council of India Act, 1956 and 10A(1) ofthe Indian Medical Degrees Act, 1916. In paragraphs 18 to 22, it isheld thus:-" 18. The MCI Act of 1956 has been enacted bythe Parliament in terms of the legislative authorityunder Entry 66 of List I. The aforesaid subject underEntry 66 always remained a preserve of theParliament, even before the 42nd amendment of theConstitution. After the 42nd amendment, which cameinto effect on 3.1.1977, Entry 66 remained the same.But as a result of the 42nd amendment, Entry 11 in theState List (List II) was deleted. Entry 11 in theState List before deletion was as follows: -“11. Education including universities subject tothe provisions of entries 63, 64, 65 and 66 of List Iand entry 25 of List III”.19. Apart from deletion of the said Entry 11,Entry 25 of the Concurrent List (List III) was alsoamended by the 42nd amendment. Entry 25 of theConcurrent List prior to the 42nd amendment read asfollows: -“25.Vocational and technical training ofLabour.” After the amendment it reads as follows: - “25. Education, including technical education,medical education and universities, subject to theprovisions of Entries 63, 64, 65 and 66 of List I;vocational and technical training of labour.”20. A perusal of the changes made by the 42ndamendment in the State List and the Concurrent Listwould unmistakably show that the intention which isreflected by the said amendment is to confer theParliament with an extensive power to legislate inthe field of higher and technical education in orderto maintain uniform standards throughout India and totake away from the State List legislative power bydeletion of Entry 11 and also by amending Entry 25 ofthe Concurrent List. Therefore, the State’s exerciseof executive power must be made consistent with theaforesaid constitutional Scheme of curbing of itslegislative power in respect of higher and technical https://hcservices.ecourts.gov.in/hcservices/ education. If the State cannot make law in an area inview of lack of its legislative competence, as itcannot do in the filed of higher and technicaleducation, especially when it is occupied by the saidAct, which is a central law, it cannot issueexecutive orders in that area. That is the mandate ofArticle 162. 21. The argument of the learned counsel for theState that since the certificate course in the fieldof medical education is not a recognizedqualification under the schedule to the said Act, theState does not need the permission of the CentralGovernment or the Medical Council of India to startthe said certificate course is equally untenable. Ifthe State’s argument is upheld, then it would amountto allowing the State to run a parallel course,whether it is an under-graduate or post-graduatecourse of 6 months or one year, even though it iscontrary to any post-graduate course, which is runwith the permission of the Medical Council of India.In the instant case, it has been admitted by theState that the Post Graduate Medical Course is nowrunning in Medical Colleges in the State with thepermission of the Medical Council of India.Therefore, by the impugned G.O the State is seekingto introduce in exercise of its so-called executivepower, a course of a different nature on the samesubject, may be for a smaller duration, and by givingit a different name. The same is nothing but a coursein medical education.22. To our judgment, this is clearly notpermissible having regard to the constitutionalscheme discussed above which controls the legislativepower of the State in higher and technical education.A Certificate Course in Diabetology, which is aspeciality, certainly falls in that category." (Emphasis supplied)From the above referred judgment, it is beyond doubt that withoutprior permission from the Central Government, no course in medicaleducation can be permitted in any institution including universities.31. The Medical Council of India is constituted as an expertbody to control the minimum standards of medical education and toregulate their observance and it can supervise the qualifications oreligibility standards for admission in the medical institutions. Thesecond respondent-Medical Council of India also relied on a judgmentof the Supreme Court in MEDICAL COUNCIL OF INDIA VS. STATE OF https://hcservices.ecourts.gov.in/hcservices/ KARNATAKA reported in 1998 (6) SCC 131 particularly paragraph 57. Toemphasise the above proposition, paragraph-57 of the said judgmentreads as follows:-" 57. In the case of Medical Council of India vs.State of Karnataka a bench of three judges of thisCourt had distinguished the observations made inNevedita Jain. It has also disagreed with Ajay KumarSingh vs. State of Bihar and has come to theconclusion that the medical council regulations have astatutory force and are mandatory. The court took noteof the observation in State of Kerala vs. T.P.Roshana(SCC at p.580) to the effect that under the IndianMedical Council Act, 1956, the Medical Council ofIndia has been set up as an expert body to control theminimum standards of medical education and to regulatetheir observance. It has implicit power to supervisethe qualifications or eligibility standards foradmission into medical institutions. There is underthe Act an overall vigilance by the Medical Council toprevent sub-standard entrance qualification wouldapply equally to postgraduate medical courses. We arein respectful agreement with this reasoning."(Emphasis supplied)The said position of law has been re-affirmed in the decisionreported in 1999 (7) SCC 120 (Dr.Preeti Srivastava vs. State ofMadhya Pradesh & Others, 2001 (8) SCC 664 (State of Punjab vs.Dayanand Medical College and 2003 (7) SCC 83 (State Madhya Pradesh &Others vs. Gopal D.Tirthani & Others. The universities or States arebound to follow the Medical Council of India norms not only foradmitting the students but also for conducting examinations.32. In the counter affidavit filed by the Medical Council ofIndia, it is specifically stated that any course started by a medicalcollege/institution contrary to the statutory scheme would result indenial of recognized medical qualification under the Act. The coursesnow proposed to be permitted by the fourth respondent-University areP.G.Diploma courses in Medical Sciences and the University ispermitting candidates, who successfully passed the examination tosuffix the said diploma along with M.B.B.S. Degree. Allowing suchpersons to suffix the diploma along with their degree is in violationof the Indian Medical Degrees Act, 1916 and the Indian MedicalCouncil (Professional Conduct, Etiquette and Ethics) Regulations,2002. Clause 1.4.2, which states that "Physicians shall display assuffix to their names only recognized medical degrees or suchcertificates/diplomas and memberships/honours which conferprofessional knowledge or recognizes any exemplaryqualification/achievements". The said provision enables thePhysicians to suffix degrees/diplomas, which are only recognized by https://hcservices.ecourts.gov.in/hcservices/ the Apex Body, namely, the Medical Council of India. Without suchrecognition, if any person is allowed to suffix P.G.Diploma inMedical Sciences along with M.B.B.S. Degree, the general public willdefinitely get an impression that the Physician is a specialist. Suchspecialise status can be claimed by any Physician only after gettingan approved P.G.Diploma and not half backed Diploma courses offeredby the fourth respondent-University. 33. As rightly contended by the learned Senior Counsel for thepetitioners, the fourth respondent-University cannot contend thatBharathidasan University was allowed to conduct engineering courseswithout the approval of the All India Council for Technical Educationin terms of the judgment of the Supreme Court in BHARATHIDASANUNIVERSITY AND ANOTHER VS. ALL INDICA COUNCIL FOR TECHNICAL EDUCATIONAND OTHERS reported in 2001 (8) SCC 676. There is a clear distinctionbetween the All India Council for Technical Education Act, 1987 andthe Medical Council of India Act, 1956. In the All India Council forTechnical Education Act, 1987, section 10(k) does not cover theUniversity and therefore the said judgment permitted the saidUniversity to offer B.E. Degree Courses without the approval of theAll India Council for Technical Education. In this case, Section 10A(1) of the Medical Council of India Act, 1956 clearly states that "noperson shall establish a medical college or no medical college shallopen a new or higher course of study or training including a post-graduate course of study or training. The said "person" includes anyUniversity as per Explanation 1. Hence, in any event, the fourthrespondent-University is not empowered to grant permission to anyinstitution or medical college to conduct any P.G.Diploma Course inMedical Sciences without previous approval of the Central Governmentas required under Section 10A(1) of the Medical Council of India Act,1956. 34. As rightly submitted by the learned Senior Counsel for thepetitioners, all the P.G.Diploma courses in Medical Science nowpermitted by the fourth respondent-University are available in theMedical Council of India Regulation either as P.G.Diploma courses orpart of Degree courses or both. The approved equivalent coursesavailable as per Medical Council of India Regulations are as follows:-1.HIV Medicine one year course is part of M.D.Dermatology,Venerology and Leprosy and as P.G.Diploma in same branch.2.Occupational Health is conducted as Diploma Course (D.O.H.)3.Palliative Medicine is conducted as a part of M.D. Palliative Medicine. 4.Clinical Immunology is conducted as Diploma in Allergy andClinical Immunology. https://hcservices.ecourts.gov.in/hcservices/

5.Medical Genetics is a part of M.D.Medical Genetics6.Critical Care in Medicine is available as a part of D.M.(Critical Care and PDCC in Critical Care Medicine) (Diploma)7.Family Medicine – Distance Education is part of M.D. FamilyMedicine.8.Medical Imaging is a part of M.D. Radio Diagnosis 9.Diagnostic Ultrasound is a part of PG Degree in M.D. RadioDiagnosis and Radio Diagnosis as Diploma (DMRD)10.Clinical Laboratory Medicine is available as Diploma ClinicalPathology (DCP) 11.Clinical Diabetology is a part of D.M.Endocrinology. Thus, the contention of the fourth respondent that it has permittedthe institutions to commence courses, which are not available in thelist of approved Degree or Diploma courses of Medical Council ofIndia is contrary to record. The above narrated courses/equivalentcourses are mentioned in the Medical Council of India AmendmentNotification dated 8.12.2010. Thus, it is evident that the fourthrespondent-University is seeking to introduce courses of differentnames on the same subjects. Admittedly, these courses are in medicaleducation.35. The contention of the fourth respondent-University raised inthe counter affidavit in paragraph-17 is that "there are severaldiplomas being offered by different universities such as, AnnamalaiUniversity, Alagappa University, Indira Gandhi Open University underDistance Education System." The learned Senior Counsel for the fourthrespondent-University vehemently contended that the Medical Councilof India and Central Government are allowing such universities toconduct Diploma Courses without prior approval, hence, the fourthrespondent-University is also entitled to conduct courses throughapproved institutions and colleges without previous permission. 36. The said contention is replied by the learned counsel forthe Medical Council of India through instructions that suchuniversities are conducting P.G.Diplomas without permission ofCentral Government and Medical Council of India and the said medicalqualifications are not recognised by the Central Government underSection 11 of the Medical Council of India Act, 1956. It is alsostated that the Medical Council of India has no power to penalise theuniversities/institutions that are violating the mandate of MedicalCouncil of India Act, 1956 and they are illegally conductingP.G.Diploma Courses that relates to the medical education stream.Thus, it is evident that if any university or institution offersP.G.Diploma or Degree as well as Certificate Course without prior https://hcservices.ecourts.gov.in/hcservices/ permission of Central Government/Medical Council of India, there isno justification for the fourth respondent-University to permitinstitutions to conduct courses in violation of Medical Council ofIndia Act, 1956 and Regulation. The courses offered by the saiduniversities being illegal as per the contention of Medical Councilof India, the said illegality cannot be cited or treated as aprecedent. In this case, the petitioners have approached this Courtagainst the fourth respondent-University. If any other personincluding the fourth respondent-University or Medical Council ofIndia approaches this Court against such universities which areconducting courses without the permission of CentralGovernment/Medical Council of India, this Court will definitelyconsider the said matter and pass appropriate orders after hearingthe said universities.37. Thus, the issue raised in these writ petitions are foundagainst the fourth respondent-University. The petitioners have madeout a case for allowing these writ petitions. Consequently, thesewrit petitions are allowed. No costs. Connected miscellaneouspetitions are closed.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarkbTo1.THE SECRETARY TO GOVERNMENTUNION OF INDIAMINISTRY OF HEALTH & FAMILY WELFARENIRMAN BHAVAN, MAULANA AZAD ROADNEW DELHI- 110 011.2.THE SECRETARYMEDICAL COUNCIL OF INDIAAIWAN-E-GALIB MARGKOTIA ROADOPP. MATA SUNDARY COLLEGE FOR WOMENNEW DELHI – 110 002.3.THE SECRETARY TO GOVERNMENTSTATE OF TAMIL NADUHEALTH AND FAMILY WELFARE (MCA 1) DEPARTMENTFORT ST. GEORGECHENNAI – 600 009. https://hcservices.ecourts.gov.in/hcservices/

4.THE TAMIL NADU DR. M.G.R.MEDICAL UNIVERSITYNO.69, ANNA SALAIGUINDY, CHENNAI – 600 032.1 cc to Government Pleader, Sr.No.686701 cc to Mr.K.C.Srinivaasan, Advocate, Sr.No.686091 cc to M/s.K.M.Vijayan Associates, Advocate, Sr.No.684221 cc to Mr.N.Mariappan, Advocate, Sr.No.683831 cc to Mr.V.P.Raman, Advocate, Sr.No.68522 Order in W.P.Nos.16189 TO 16193 OF 2011NR {CO}TP/11.11.2011.