Medical, Legal, Medicolegal Information for Doctors and Lawyers

Case against anaesthesia training course for doctors

2012-04-22T14:39:00.003+05:30

http://www.thehindu.com/news/cities/Madurai/article3332604.ece

“Doctors compelled to undergo training against their will”

A government doctor has filed a writ petition in the Madras High Court Bench alleging that the State government was compelling medical practitioners possessing MBBS degrees to undergo a Life Saving Anaesthetic Skill (LSAS) training course that leads to a certification authorising them to administer general anaesthesia and spinal anaesthesia to obstetrics and gynaecology patients.

Admitting the writ petition filed by P.P. Ramajeyam, an Assistant Surgeon recruited to Tamil Nadu Medical Service through the Tamil Nadu Public Service Commission and posted to work at Government Hospital, Peraiyur, in Madurai district, Justice K. Venkataraman directed a government counsel to take notice on behalf of the Joint Director of Health Services and other official respondents.

According to the petitioner, the LSAS training, spanning for 24 weeks, covered all aspects of clinical anaesthesia and basic sciences. The trainees should complete 100 cases of spinal anaesthesia, 30 cases of general anaesthesia, 10 cases of epidural anaesthesia, and 10 cases of laryngeal mask insertion apart from cardio pulmonary circulatory resuscitation (CPCR) and cannulation on mannequins.

“Though the LSAS is only an optional training, all the government doctors with MBBS degrees are being compelled to participate in the training without getting their willingness… I never sent any application to undergo LSAS training. But without any application and without my consent, I was directed by the Joint Director to join LSAS training at Madurai Medical College,” he claimed.

His counsel C. Arulvadivel alias Sekar contended that such a training was ultra vires to the Constitution and contrary to the provisions of the Indian Medical Council Act, 1956, and the Indian Medical Degrees Act, 1916, and was being given to government doctors without the permission of Medical Council of India. “As per medial norms and ethics, a doctor should not practice in a branch of medicine without possessing statutorily prescribed qualification relevant to that branch. The certificate issued after the completion of LSAS training is not statutorily prescribed qualification to give anaesthesia to patients,” the petitioner's affidavit read.

Doctors not to be arrested for Medical Negligence

2012-03-12T15:01:00.003+05:30

Judgment of Jacob Mathew case Appeal (CRI) 144-145 of 2004 which clearly states as follows

"A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld".

Tamil Nadu IMA has approached the Tamil Nadu Government and got a GO NO.220 of 2008 Dated 4.7.2008 to implement the same Judgment in our State. It is high time IMA Head Quarters should get such an order from Central Government and also the respective state branches should approach and get a similar GO no.220 of 2008 like Tamil Nadu.

KIMS students seek protection for doctors

2012-03-10T14:04:00.000+05:30

From http://www.thehindu.com/todays-paper/tp-national/tp-karnataka/article2980403.ece

They condemn the recent attack on a few doctors

Medical students taking out a protest march in Hubli on Friday condemning the recent attack on doctors.

Hundreds of postgraduate and undergraduate students of the Karnataka Institute of Medical Sciences (KIMS) took out a march in Hubli on Friday, demanding that steps be taken to prevent attacks on doctors.

Supported by the faculty members of KIMS and the Indian Medical Association, Hubli, the protesters condemned the recent attack on a few doctors on duty at KIMS and the subsequent filing of a police complaint against them.

Over 700 medical students and members of the faculty participated in the march, holding placards condemning the attack on doctors, while highlighting what the medical profession stood for and how doctors cared for their patients.

The protesters were also critical of a section of the media for “sensationalising” news stories and for “errors” in reporting, particularly with regard to the recent attack on doctors.

The protesters submitted a memorandum, addressed to the Chief Minister, to the Hubli tahsildar, seeking adequate protection for doctors.

Inquiry

It may be recalled that following the police complaint filed by Mayappa Nagammanavar of Kalasur in Savanur taluk of Haveri district, alleging that the negligence of KIMS doctors resulted in his son Mailari's death, KIMS Director Vasantha Kamath ordered an inquiry into the matter.

Dr. Kamath's order was passed on Wednesday after members of Samata Sena also held a protest.

AIIMS doctors call off strike

2012-03-10T13:59:00.001+05:30

From http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/article2980281.ece

The resident doctors' association and students at the All-India Institute of Medical Sciences (AIIMS) called off their relay hunger strike on Thursday after the hospital authorities assured them that their demands would be addressed immediately.

The group has been agitating since Anil Meena, a 22-year-old medical undergraduate student from Baran district in Rajasthan, was found hanging from a ceiling fan in his hostel room last week.

No prompt arrest of doctors on Medical Negligence: Supreme Court of India

2012-03-09T16:51:00.000+05:30

Noting that frivolous complaints against doctors have increased by leaps and bounds, the
Supreme Court on Tuesday held that the police cannot arrest doctors over complaints of
medical negligence without prima facie evidence.
The apex court also restrained courts, including consumer fora, from issuing notices to
doctors for alleged medical negligence without seeking an opinion from experts.
“While this court has no sympathy for doctors who are negligent, it must also be said that
frivolous complaints against doctors have increased by leaps and bounds in our country
particularly after the medical profession was placed within the purview of the Consumer
Protection Act,” the court said.
A bench of Justices Markandeya Katju & R M Lodha ruled that courts must first refer
complaints of medical negligence to a competent doctor or a panel of experts in the field
before issuing notice to the allegedly negligent doctor.
“This is necessary to avoid harassment to doctors who may not be ultimately found to be
negligent. We further warn the police officials not to arrest or harass doctors unless the
facts clearly come within the parameter laid down in Jacob Mathew’s case, otherwise the
policemen will themselves have to face legal action,” the apex court said .

Doc goes missing

2012-03-05T10:42:00.000+05:30

From http://www.deccanherald.com/content/232095/doc-goes-missing.html

Head of the Department of Nuclear Medicine of Kidwai Hospital, Dr Parameshwar, went missing under mysterious circumstances on Saturday night.

Janet, the wife of the 59-year-old doctor, a resident of Rajajinagar, lodged a complaint with the police on Sunday that her husband went out around 6 pm, on Saturday, saying he wanted to meet a dentist, but failed to return. Janet called him up at 9.30 pm and he told her he would be back home late in the night. She dialled his mobile number around 11.30 pm, but it was switched off.

The police have launched a search operation to trace him.

700 junior resident doctors of Civil Hospital on strike

2012-03-05T10:41:00.000+05:30

From http://timesofindia.indiatimes.com/city/ahmedabad/700-junior-resident-doctors-of-Civil-Hospital-on-strike/articleshow/12127831.cms

AHMEDABAD: It was history repeating itself for the medical staff at the Civil Hospital as flash strike was announced

More than 700 doctors of Civil Hospital went on a strike late on Friday night after a resident doctor was allegedly beaten up by relatives of a patient that died during treatment at the hospital.

The doctors' association claimed support from other government hospitals in the state over issue of inadequate security. Senior state health officials rushed to the hospital to pacify the doctors on strike but the deadlock was not resolved as on Saturday night.

According to Shahibaug police officials, they recorded cross-complaints on Friday. "As per a complaint by Dr Nitin Chaudhary, a first-year surgery student, he was on duty at the C4 ward of the hospital. The doctor was summoned by the relatives to have a look at Shehnaz Bano Mansuri, 32, a resident of Rakhial, who was admitted in the ward. Mansuri was admitted for a fortnight due to swelling in the small intestine. She was not keeping well for two days and had become critical.

When Chaudhary attended to her for the third time, she had died", said a Shahibaug police official.

When Chaudhary declared her dead, he was assaulted by Mansuri's relatives led by Ismailbhai, her husband who accused him of negligence. Chaudhary later filed a complaint for assault against a group of five with police. As Shukal, inspector of Shahibaug police station, told TOI, Mansuri's family members have filed a cross-complaint against Chaudhary and Civil Hospital staff for negligence that led to her death.

As the news of assault spread in the campus, the doctors congregated and decided not to report on duty in protest. till the issue of their security gets resolved. Dr Hiren Patel, president of resident doctors' association at Civil Hospital, told

TOI that a physical or verbal abuse of a doctor at the hospital has become a routine affair.

"Every fortnight, at least one doctor is abused in the hospital by patients' relatives. We cannot work in such an environment and demand assured security at the workplace. While other states have legislations making such an assault a non bailable offence with three years' imprisonment and monetary fine, why can't the state take step towards that direction? More than 700 doctors have joined us and we have got support from hospitals in Bhavnagar, Surat, Jamnagar and VS Hospital," said Patel.

Another member of the association said that it is a now or never situation.

"We have been promised better security for last three years but nothing has happened. We want the government to understand our situation and pass the resolution in the ongoing session of legislative assembly," said the doctor.

Cancel MBBS seats of 88 with less than 50% in plus-2: Kerala HC

2012-01-02T13:08:00.001+05:30

From http://timesofindia.indiatimes.com/india/Cancel-MBBS-seats-of-88-with-less-than-50-in-plus/2-HC/articleshow/6569272.cms

THIRUVANANTHAPURAM: In a setback to self-financing medical colleges, the Kerala high court on Thursday upheld the Medical Council of India's rule that a candidate for admission to the MBBS course must secure 50% marks in qualifying exams (plus-two) and the entrance test ( Common Entrance Test).

The order came from a bench of Justice Thottathil B Ravindran and Justice Bhavadasan on a bunch of petitions filed by some students whose admission had been objected to by the MCI as they had not met the marks requirement.

As many as 88 students had secured admission in five colleges, four run by Christian managements and one under the Muslim Education Society, during 2007-2008 in violation of the prescribed norms. The MCI had directed the students to discontinue their studies following which they approached the Supreme Court. The apex court, in turn, asked them to knock the doors of the HC.

The HC found that there was a central statute that required the candidate to secure not less than 50% marks in English and a minimum of 50% marks in Physics, Chemistry and Biology taken together both in the qualifying examination (plus two) and the competitive exams.

The colleges, however, had ignored the rule while admitting the students.

Kolkatta Court relief for medical college

2012-01-02T13:07:00.001+05:30

http://timesofindia.indiatimes.com/city/kolkata/Court-relief-for-medical-college/articleshow/6149608.cms

KOLKATA: KPC Medical College, which is under the Medical Council of India scanner, got relief from Calcutta high court on Thursday. The division bench of chief justice J N Patel and Justice Bhaskar Bhattacharya scrapped a PIL against the college.

Organisation for People's Right to Health and Education had filed the PIL against KPC Medical College with the complaint that the private medical college was not following norms while admitting students to the MBBS course.

They had also complained that the fee structure prescribed by Supreme Court was not being followed. College counsel Biswaroop Bhattacharya mentioned that the college got the approval of MCI in 2008 and was following all norms.

The college has 150 seats for MBBS, out of which 50 are admitted from WBJEE and 100 from an all-India admission test held as per the MCI norms.

Court upholds punishment for drunk cop

2011-12-19T00:51:00.001+05:30

http://timesofindia.indiatimes.com/city/chennai/Court-upholds-punishment-for-drunk-cop/articleshow/11089702.cms

CHENNAI: Showing zero-leniency to a drunk constable, who was dismissed from service for having attacked an innocent bystander , the Madras high court has upheld his removal.

On February 2, 2002, constable K Chelliah assaulted Karuppiah , who was waiting to board a bus at the Kallimandapam bus stand in Dindigul district. Besides verbally abusing, the constable kicked and slapped him. Chelliah's past conduct was taken into account by the inquiry officer, who pointed out that he had been punished five times for similar misconduct.

Chelliah preferred an appeal before the jurisdictional deputy inspector-general of police, besides approaching the erstwhile Tamil Nadu state administrative tribunal against the dismissal . After the abolition of the Tribunal, the matter was transferred to the HC.

Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Bill, 2011,

2011-12-04T11:10:00.000+05:30

From http://timesofindia.indiatimes.com/city/kochi/Doctors-get-a-helpful-diagnosis/articleshow/10966252.cms

It is good news for the medical fraternity in the state. The Kerala government has drafted a Bill, Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Bill, 2011, to protect doctors and healthcare institutions.

The bill has provisions to prohibit violence against doctors and hospitals, a problem which doctors' associations have been raising for the past decades.

Though the ordinance came into effect more than a year ago, its tabling in the Assembly was delayed, much to the concern of doctors and hospital management. What makes the Bill different is that it gives protection to all medical practitioners, registered nurses, medical students, nursing students and paramedical workers associated with hospitals and other health institutions. And its rules make such attacks non-bailable offences.

The Act, which has already been implemented in 16 states, including Andhra Pradesh and Tamil Nadu, has rules to prosecute anyone who causes damage and loss to hospitals and attacks doctors and other staff.

"The common law is not effective when it comes to attacks against doctors because it books culprits for trespassing and the case does not stand as most of them would be bystanders or relatives. The new Bill will address all these problems along with recommendations to address patients' grievances," says Dr A V Jayakrishnan, secretary of the Professional Protection Scheme (PPS) of the Indian Medical Association.

There have been reports of frequent attacks against hospitals over the years.

This year, till September, only 10 incidents were reported. According to the statistics available with the IMA, a total of 12 such incidents were reported from across the state last year while the number was 20 in 2009. There were 22 such attacks in 2007, which came down to 19 in 2008.

"The new Bill maintains that people who attack hospitals should pay double the cost of damage they cause. This Act was implemented for the first time in Andhra Pradesh and it has been found very effective even in Naxal-hit areas," says Dr K E Paulose, former national vice-president of IMA.

All the offences under this Act are cognizable and non-bailable, which the medical practitioners feel would go a long way in curbing the repeated attacks against them, giving them a friendly environment and protection at workplace.

Weightage for Rural Service in PG Medical Entrance in Karnataka - Judgement

2011-11-15T00:37:00.000+05:30

Dr. T. Prathap And Ors. vs State Of Karnataka By Its ... on 21 April, 2005
Equivalent citations: AIR 2005 Kant 386, ILR 2005 KAR 2682, 2005 (4) KarLJ 279
Author: S A Nazeer
Bench: S A Nazeer
ORDER

S. Abdul Nazeer, J.

1. The petitioners in these cases have sought for a declaration that the service weightage of 4 marks for every completed one year of service on contract basis granted by the Government Order bearing No. HFW 470 MPS 2004, dated 18-1-2005 (Annexure-'B' to the writ petitions) by the Clause reading "in case of service rendered as contract Doctors, the service weightage so admissible shall be 4 marks for every completed one year of service" is illegal and unconstitutional.

2. The brief facts of the case are as follows:

The petitioners are aspirants for admission to Post-Graduate Medical and Dental and Diploma Courses for the academic year 2005-2006. They are in-service candidates prescribed under the Rules Governing Admission. They have taken the Entrance Test as in-service candidates. The 1st Petitioner though a Medical Officer in the services of the Government of Karnataka has taken the test as an open category candidate since he does not fall within the definition of 'in-service candidate' prescribed under the Rules governing admissions. They are aggrieved by the impugned Government Order providing for a service weightage of 4 marks for every completed one year of service rendered as Contract Doctor. It is further contended that during the year 1992, pending direct recruitment as per Rules, as a stop gap arrangement, 380 Doctors were appointed on contract basis by the State Government. Applications were invited at the District level stipulating that the appointment is on contract basis, the appointees will not have any claim for regularisation or regular appointment and they will not be entitled to any emoluments except a consolidated amount of Rs. 4,000/- per month. The appointments were on contract basis terminable at any time and the period of contract was stipulated as three years. Their appointment was purely contractual and no merited candidate applied in response. When the said Doctors were working on contract basis, in response to the Notification issued by the Karnataka Public Service Commission in the year 1995 most of these doctors working on contract basis also applied and failed to get a place in the select list due to their low merit. When the provisional select list was published in the year 1996 the contract doctors finding that most of them have failed to make it to the select list moved the Government for regularisation of their services and that their services were regularised as per the Notification dated 24-7-1997. The Rules under which regularisation was made as also the regularisation notification clearly stipulated that the services rendered on contract basis will not count for any purpose. Similar regularisation exercise was made by another notification dated 7-12-1999. It is alleged that the Government went on to accommodate the contract doctors is evident from the fact that while the candidates who came to be selected on their merit pursuant to the application invited by the Karnataka Public Service Commission (for short 'KPSC') in the year 1995, interviews held and provisional list and select list published in the year 1996 were appointed only on 25-7-1997 and the contract Doctors who failed to get selected in the KPSC selection and who had been appointed on contract basis without any screening and without any selection were given regular appointments with effect from 9-6-1997 by a Notification dated 24-7-1997. The very same misplaced benevolence in favour of contract doctors is evident from the impugned Government Order dated 18-1-2005. The Petitioners have urged that no weightage can be given for a period when the candidates could not be said to be in-service. The Contract Doctors are not members of service when the appointment on contract is contrary to the Statutory Recruitment Rules. It is not in substantive capacity. Therefore, giving service weightage of 4 marks for every completed one year service on contract basis as per the Government Notification dated 18-1-2005 is contrary to law.

3. Respondents 4 to 6 were the contract doctors whose services have been regularised subsequently. They have filed impleading application which was allowed by this Court. It is contended by them that they were recruited as Doctors on contract basis and subsequently they were absorbed as regular doctors. Initially, they were recruited and posted to Rural areas. Recruitment was made by the Directorare of Health and Family Welfare and a merit list was prepared and selection was made by following roster and Recruitment Rules which were framed at the said point of time were strictly followed. Thereafter, they were absorbed on permanent basis. Recognising their rural service during their contract period, the Government has granted weightage of 4 points. The Petitioners cannot find fault with the same.

4. The State Government has filed its counter. It is contended that it has received large number of representations from Government Doctor's Association to the effect that in view of their Rural Service, it is extremely difficult for them to secure 50% of the marks in PGET to become eligible for admission to PG Courses in terms of Regulation 9 of the Medical Council of India Post Graduate Medical Education Regulations 2000. Their reasonable demands were discussed in many meetings to formulate a conscious decision. After extensive deliberations, the categorical consensus emerged was to award service weightage. The State has adopted a system of appointing the doctors on contract basis initially for a period of one year extendable from time to time by the Deputy Commissioners of the Districts for being posted in the rural areas for the Health care of the Rural people, especially below the poverty line (Yellow Card Holders). As and when the Contract doctors complete minimum three years of service as contract doctors, the Government contemplates their absorption in the Health and Family Welfare Service Department in the cadre of General Duty Medical Officers in the time scale of pay of Rs. 7400-13120. Such contract doctors working in remote places having no facilities at all. Hence, their cases deserved sympathetic consideration for award of service weightage co-terminus with their contractual appointment. The Government took a decision for award of service weightage to in-service candidate with a distinguishable factor to the effect that weightage of 5 marks for every completed one year of regular service and weightage of 4 marks for every completed one year of service for contract doctors followed by 5 marks for every completed one year of regular service subject to a ceiling of 60 marks. Accordingly, Government Order at Annexure-'B' has been passed. It is the policy of the State Government to award the rural weightage to the Doctors who have done the rural services during their contract service. Thus, the State has justified award of 4 marks for every completed one year of service as contract doctors.

5. I have heard Sri P.S. Rajagopal, Learned Counsel for the Petitioners, Sri B. Manohar, Learned Additional Government Advocate for respondent Nos. 1 and 3, Sri. N.K. Ramesh, Learned Counsel for Respondent No. 2 and Sri K. Subba Rao, Learned Senior Counsel along with Sri A. Narayana Bhat, Learned Counsel for the respondents Nos. 4 to 6.

6. Sri P.S. Rajagopal, Learned Counsel appearing for the Petitioners submits that the contract doctors cannot be treated as in-service candidates during their contractual period of service. Therefore, no weightage can be given for a period when the candidate could not be said to be 'in-service'. In order to become a member of the service he must satisfy two conditions namely, the appointment must be in a substantive capacity and the appointment has to the post has to be according to Rules. The appointment on contract basis is contrary to the statutory recruitment rules and it is not in substantive capacity. Therefore, the weightage given to the contract doctors for their contractual period of service is contrary to law. It is further argued that the Petitioners have appeared in the Entrance Test, without prejudice to their right to challenge the Government Order. Therefore, it cannot be held that they have accepted the conditions regarding grant of weightage of 4 marks to the contract doctors, for every completed one year of service.

7. On the other hand, Sri K. Subba Rao, Learned Senior Counsel appearing for the respondent Nos. 3 to 6 submits that the respondent Nos. 3 to 6 have been appointed for rural service on contract basis. The State Government is justified in granting four marks for every completed one year of service as contract doctors recognising their rural service. Further, the Petitioners having appeared in the PGET, they cannot be permitted to challenge Annexure-'B' at this stage. Learned Additional Government Advocate justifies the service weightage given to contract Doctors during their contractual period of service.

8. I have carefully considered the rivial contentions of the parties and perused the materials placed on record.

9. The Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973 provides for the method of recruitment by the Selecting Authority to all cadres of post in the State Civil Services which are to be filled by the Direct Recruitment and for which no special or general rules have been issued prescribing the method of selection.

10. The State Government in exercise of the powers conferred by Section 14 of the Karnataka Educational Institutions (Prohibition of Capitation Fees) Act, 1984, has made Rules namely "The Karnataka Conduct of Entrance Test to Post Graduate Medical and Dental Degree and Diploma Courses Rules 2003" (for short 'Rules'). The Rules provide for selection of candidates for admission to the Post-Graduate Medical Degree and Diploma and Courses and Post Graduate Dental Degree Course in respect of the Seats in Government medical and dental colleges including the medical seats in autonomous colleges and for Government seats in private Medical and Dental Colleges in Karnataka The 'Rules' an statutory in nature.

11. Section 2(g) of the Rules defines "in-service candidate" as follows:

"2(g) "In-service candidate means, persons belonging to the Health and Family Welfare Services, the Karnataka Medical Education Services, Employees' State Insurance (Medical) Services, Mahanagara Palike Services, Boards and Corporations Services and autonomous Medical Institutions registered under the Karnataka Societies Registration Act, 1960 including the persons deputed from such services to any other foreign services".

12. The Government has passed a Government Order dated 18-1-2005 known as 'Conduct of PGET' for in-service candidates for admission to PG Medical and Dental Courses' (Annexure 'B'). According to the State it has been framed in exercise of its executive powers. The said Government Order prescribes the Rules of Procedure and the Pattern in the Conduct of PGET 2005 for admission to Post Graduate Medical and Dental and Diploma Courses for in-service candidates applicable for the academic year 2005-2006. In-service candidates are eligible for award of a service weightage of 5 marks for every completed one year of regular service subject to a maximum of 60 marks. The offending portion in the said notification is as follows:

"In case of service rendered as contract doctors, the service weightage so admissible shall be 4 marks for every completed one year of service".

13. It is to be noted here with the aforesaid Government Order does not speak of grant of service weightage to the contract Doctors for their rural service.

14. It is clear that an 'in-service candidate' means persons belonging to the Health and Family Services, in addition to the other-services mentioned in the definition of the Rules. The question for consideration is 'whether the contract doctors are the persons belonging to the Health and Family Welfare Services'? If they are not 'in-service candidates', whether they are entitled to any service weightage for their service on contract basis?

15. In State of Madhya Pradesh v. Gopal D. Tirthani, AIR 2003 SC 2952 the Apex Court has held that the State Government is competent to set apart a definite percentage of educational seats at Post Graduate level consisting of Degree and Diploma Courses exclusively for 'in service candidates'. To the extent of the seats set apart, there is a separate and exclusive source of entry or channel of admission and it is not a reservation. In service candidates and candidates not in the service of the State Government are two classes based on an intelligible differentia. The Apex Court has further observed that there is a laudable purpose sought to be achieved. In service candidates on attaining higher academic achievements would be available to be posted in rural areas by the State Government. It is not that an in service candidate would leave the service merely on account of having secured a Post Graduate Degree or Diploma though secured by virtue of being in the service of the State Government.

16. On the basis of the aforesaid decision of the Apex Court, the State Government issued the Government Order at Annexure 'B' providing the Rules and Procedure and pattern in the conduct of PGET 2005 to Post Graduate Medical and Dental Degree and Diploma Courses for in service candidates. The definition of 'in service candidate' in the Rule is very clear. It means the persons belonging to Health and Family Welfare Services insofar as State Civil Service is concerned. The quota is meant for in-service candidates. Respondent Nos. 4 to 6 did not belong to the Health and Family Welfare Services during their service as contractual doctors. In order to become a member of service they must satisfy two conditions, namely, the appointment must be in substantive capacity and appointment has to be to the post in service according to Rules. The Petitioners do not dispute the award of service weightage after their regularisation of services. Even the Rules under which Regularisation was made as also the regularisation Notification clearly stipulates that the services rendered on contract basis will not mean for any purpose.

17. In Gopal D. Thirthani's case (supra) the Supreme Court was considering the Madhya Pradesh Medical and Dental Post-Graduate Admission (in-service) Rules, 2002. Selection criteria in the said rules did not apply to the candidates who are serving on contractual basis. Service weightage was made available to only in-service candidates who have served in rural area.

18. Now, let me consider the decisions relied on by Mr. P.S. Rajagopal. In B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 it has been held that if there is a statutory rule, or an act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of the executive power under Article 162 of the Constitution of India, ignore or act contrary to the Rules.

19. In State of Gujarath and Anr. v. Ramanlal Keshavlal, AIR 1984 SC 161 it has been held that classification on the basis of birth mark is unconstitutional. In Ashok Gulati and Ors. v. B.S. Jain and Ors., AIR 1987 SC 424 the Apex Court has observed that it may seem somewhat illogical that the temporary engineers appointed on ad-hoc basis should be deprived of the period of their officiation period as such till they were absorbed to the post of Assistant Engineers on a regular basis. It is held as follows:

"In this case, the length of the continuous officiation cannot be the basis for reckoning their seniority since they never became the members of Class-II service prior to their absorption "

20. IN Keshav Chandra Joshi and Ors. v. Union of India and Ors., AIR 1991 SC 284 the Supreme Court has held that employees appointed purely on ad-hoc or officiating basis due to administrative exigencies, even though continued for a long spell, do not become the members of the service unless the Governor appoints them in accordance with the rules and so they are not entitled to count the entire length of their continuous officiating or fortuitous service towards their seniority. Similar view is taken in State of West Bengal and Ors. v. Aghore Nath Dey and Ors., (1993) 3 SCC 371. In State of Karnataka and Ors. v. G. Hallappa and Ors., (2002) 4 SCC 662 it has been held that the appointments made on contract basis conies to an end either on the expiry of the term or on a regular candidate reporting to duty.

21. The Apex Court in A. Vmarani v. Registrar, Co-operative Societies and Ors., (2004) 7 SCC 112 And in Maruthi Udyog Limited v. Ramlal and Ors., (2005) 2 SCC 638 has held that when the appointments were made in contravention of Mandatory Provisions and the Statutory Rules framed thereunder and ignorance of essential qualifications, the same would be illegal and cannot be regularised by the State. The State cannot invoke the power under Article 162 of the Constitution of India to regularise such appointments. In State of Haryana v. Tilakraj and Ors., AIR 2003 SC 2658 and in Mahendra L. Jain and Ors. v. Indore Development Authority and Ors., 2005 SCC (L& S) 154 it has been held that the person appointed as daily wager holds no post.

22. Sri Subba Rao relying on the decision of the Supreme Court in Gujarath Agricultural University v. Rathod Labhu Bechar and Ors., AIR 2001 SC 706 submits that experience is a valid criteria for higher studies and it may some time substitute minimum qualification as well. In this case the appellant-University had engaged daily rated labourers for various activities. They had completed 10 years of service with pay and all allowances along with other benefits of the permanent Class-IV employees. They raised an industrial dispute whereby the Industrial Tribunal directed the University to regularise their services. The matter taken upto the Apex Court wherein it was held that workers working in post for long number of years by itself is sufficient qualification. In the present case, admission to PG Courses is regulated by Rules. Therefore, this decision is not-applicable to the facts of the present case.

23. From the discussion made above, it is clear that in order to be eligible for admission to Post Graduate Degree or Diploma Courses in Medicine or Dentistry by an 'in-service candidate' he/she should be belonging to Health and Family Welfare Services and other services as defied in Rule 2(g) of the Rules. Clause (3) of the Government Order dated 18-1-2005 states that it prescribes the procedure in conduct of PGET 2005 for admission to PG Courses for 'in-service candidates'. In order to become a member of service, they must satisfy two conditions namely the appointment must be in substantive capacity and the appointment to the post has to be according to the Rules. Employees appointed on contract basis even though continued for along spell do not become the members of service unless they are appointed according to rules. In my view, the contract Doctors did not become members of service during their contractual period of service. The order appointing them as Contract Doctors makes it clear that the appointees will not have any claim for regularisation or regular appointment. The appointments were terminable at any time. The Rules under which they were regularised as also the regularisation notification clearly stipulated that the services rendered on contract basis will not count for any purpose. If that is so, it is un-understandable as to how they are entitled for service weightage for their service during their contractual period of service. The Government Order referred above does not speak of the grant of service weightage for rural service. It is well settled that if there is a statutory Rule, the executive cannot ignore or act contrary to the rule in exercise of the executive power under Article 162 of the Constitution of India. In my view, the Government Order dated 18-1-2005 granting service weightage to the Contract Doctors for their contractual period of service is contrary to the Rules because they were not members of service during the said period.

24. That brings me to the question whether the Petitioners can challenge the Government Order at Annexure 'B', having appeared in the PGET 2005 in terms of the said order. The Petitioners in their representation submitted to the third respondent in the month of December 2004 (Annexure 'H'), have pointed out that giving service weightage for contract service would be contrary to law. It is the case of the Petitioners that without considering the said representation, the Government has issued the Government Order dated 18-1-2005. Left with no alternative, having regard to the short time that was available for entrance test, they participated in the PGET. Before taking the test, the Petitioners have filed representations to the 1st and the 3rd respondents protesting against the weightage given for service rendered by the Doctors on contract basis as per Annexure 'J' and they have appeared in the PGET-2005 without prejudice to their rights. Mr. P.S. Rajagopal has relied on the following decisions in support of his contentions:

i) Rajkumar and Ors. v. Shakthi Raj and Ors., AIR 1997 SC 2110.

ii) P.R . Deshpande v. Maruti Balaram Haibatti, AIR 1998 SC 2979.

iii) Mohanlal Agarwal and Ors. v. Bhuvaneshwari Prasad Mishra and Ors., 2002 (1) LLJ 463

25. Sri. Subba Rao, Learned Senior Counsel submits that the Petitioners are fence sitters and they are blowing hot and cold to suit their convenience. Having appeared in the PGET-2005, they cannot maintain the above writ petitions. He has relied on the decisions of the Apex Court in Madan Lal and Ors. v. State of Jammu and Kashmir, AIR 1995 SC 1088 and UNION of India v. N. Chandrashekaran and Ors., AIR 1998 SC 795 and the decision of this Court in R. Jagannatha and Ors. v. Hon'ble High COURT of Karnataka and Ors., 2005 AIR KANT. HCR 762.

26. In Madan Lal's case (supra) the Apex Court has held that the result of the interview test cannot be successfully challenged by a candidate who takes a chance to get selected at the interview and who ultimately finds himself to be unsuccessful. The same view was re-iterated in N. Chandrashekaran's case (supra) as also in R. Jagannatha's case (supra). However, in Rajkumar's case (supra), the Apex Court while considering the decision in Madan Lal's case (supra) has held that in a case where the Government has committed glaring illegalities in the procedure to get the candidates for examination, the principles of estoppel by conduct or acquiescence has no application. It is held as follows:

"Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J and K. (1955) 3 SCC 486 : (1995 AIR SCW 1109) and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principles of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law".

27. In P.R Deshpande case (supra) it has been held that statutory remedy of appeal cannot be scuttled or foreclosed by an undertaking given by the tenant to the High Court that he would vacate the premises in question within specified days.

28. In Mohan Lal Agarwal's case (supra) an argument was advanced that the respondents' therein having participated in the selection process cannot turn round to challenge the same in the writ petition. The Supreme Court after considering several decisions on the point has held that when the condition of the policy is such that if the petitioners did not participate in the selection process, he forfeits his right to promotion permanently, there is hardly any choice for him except to participate in the selection process. It is further held that the time gap between the declaration of policy, the protest and the selection process being too short, there was hardly any time left to the petitioners to approach even the High Court.

29. In the present case, the State Government has committed glaring illegalities while providing service weightage to Contract Doctors for their contractual period of service. The petitioners have sent their protest letters and have appeared in the PGET without prejudice to their rights to challenge the Government Order. Time was too short between the Government Order (Annexure 'B') and the date of PGET. If they do not appear in PGET-2005, they will loose that opportunity for ever. There was hardly any other choice for them except to appear in the PGET-2005. In my view, the principles of estoppel by conduct or acquiescence has no application to the facts of this case.

30. No other contentions have been urged by the Learned Counsel for the parties at the time of hearing.

31. In the result, writ petitions succeed and they are accordingly allowed. It is declared that the service weightage of 4 marks for every completed one year of service on contract basis granted to the Contract Doctors during their contractual period of service by the Government Order bearing No. HFW 470 MPS 2004, dated 18-1-2005 (Annexure 'B' to the writ petition) is illegal and unenforceable. No costs.

A sweet victory after tough battle for this medico

2011-11-11T20:03:00.001+05:30

From http://www.thehindu.com/education/college-and-university/article2526527.ece

The first part of her dream has come true. Divya P. finally has a medical seat.

On Monday, she finally received an allotment order admitting her for first-year MBBS course at Dharmapuri Medical College. Even as she packs her bags, she talks about how happy she is, though a trifle sad at leaving her family behind. The victory tastes sweeter because of the tough battle that preceded it.

Divya has kyphoscoliosis, a deformity of the spine, which left her with one short leg. Her problems started when it was not considered a ‘disability' sufficient for her to be included under the disabled quota for medical admissions. She had the necessary marks, just not the ‘right kind' of disability for a medical seat.

According to the Selection Committee, Directorate of Medical Education, she was denied admission under the special category on the ground that she did not suffer locomotor disability in her lower limbs.

Aided by voluntary organisations that sought to help her and create precedence with the case, Divya found the Madras High Court coming to her rescue.

Her lawyer R. Prabhakaran, who worked pro bono in the case, argued that under the Persons with Disabilities Act, 1995, locomotor disability includes not only lower limbs, but includes a disability in the spine. He prayed that the PWD Act be given a liberal construction.

The judge ruled in her favour and the selection committee hurried to set right its perceived wrong, issuing her an allotment order within a week. With the aid of voluntary organisations again, she has managed to pay her fees of Rs.12,290 and is ready to go to college, though a bit belatedly.
Raring to go

“Going a month after college has started is going to be a disadvantage, I know. I must have missed the practicals, especially in anatomy. However, with hard work, I'm hoping to catch up with the rest,” Divya says resolutely.

“Divya is actually entitled to tuition and special fee waiver on grounds of disability and the fact that she would be the first graduate from her family,” says T.M.N. Deepak of the Tamil Nadu Handicapped Federation Charitable Trust.

However, she had to pay up the amount initially, and has been promised a refund.

Landmark Judgement from Gauhati High Court - Certain MCI Guidelines are against Constitution

2011-10-16T11:55:00.003+05:30

From http://ghconline.nic.in/Judgment/WA352011.pdf

Page No. 1
WP(C) 354/2011 & WA 35/2011
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
[AGARTALA BENCH]
WP(C) No. 354/2011
Petitioners :
1. Shri Simmons Debbarma,
S/o Shri Samarendra Debbarma,
Resident of Krishnanagar, near Weights & Measure
Office, P.O. Agartala, P.S. West Agartala,
District West Tripura,
2. Shri Jasckson Tripura,
S/o Shri Ditiram Tripura,
Resident of Village & P.O. Fulcharri,
P.S. Manubazar, Sabroom,
Dist. South Tripura,
3. Shri Hawmchang Debbarma,
S/o Shri Prabir Debbarma,
Resident of Harish Thakur Road, Krishnanagar,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura,
4. Shri Trijeshwar Debbarma
S/o Shri Sudhanaya Debbarma,
Resident of Ujan Abhoynagar,
P.O. Abhoynagar, P.S. East Agartala,
Dist. West Tripura,
5. Ms. Juliet Debbarma,
D/o Shri Paritosh Debbarma,
Resident of Ujan Abhoynagar,
P.O. Abhoynagar, P.S. East Agartala,
Dist. West Tripura,
6. Ms. Monalisha Debbarma,
D/o Shri Prabin Debbarma,
Resident of village Khowai,
P.O. & P.S. Khowai,
Dist. West Tripura.Page No. 2
WP(C) 354/2011 & WA 35/2011
By Advocates :
Mr. A. K. Bhowmik, Sr. Advocate.
Mr. M. Debbarma,
Mr. B. Bhattacharjee,
Mr. R. Dutta,
Ms. M. Choudhury,
- versus -
Respondents:
1. The State of Tripura,
Represented by the Secretary to the Government of
Tripura, Department of Higher Education,
New Secretariat, Capital Complex,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura,
2. The Director of Higher Education,
Old Secretariat Building,
P.O. Agartala, P.S. West Tripura,
Dist. West Tripura,
3. The Director of Health Services,
Government of Tripura,
Gurkhabasti, P.O. Kunjaban,
P.S. East Tripura,
Dist. West Tripura,
4. The Medical Council of India,
Having its office at Aiwan-e-Ghalib Marg,
Kotla Road, New Delhi-110002,
Represented by its Secretary,
5. The Tripura Board of Joint Entrance Examination
(Directorate of Higher Education),
3rd Floor, Building of Tripura Board of Secondary
Education, Gurkhabasti, Agartala, PIN-799006,
Represented by its Chairman,
6. The Union of India,
Represented by its Secretary,
Ministry of Health & Family Welfare,
Government of India, New Delhi.
By Advocates:
Mr. P. K. Biswas, Assistant Solicitor General of India.
Ms. A. S. Lodh, Govt. Advocate,
Ms. R. Guha, Advocate. Page No. 3
WP(C) 354/2011 & WA 35/2011
WA No. 35/2011
[In WP(C) 337/2011]
Appellants :
1. Ms. Monali Debbarma,
D/o Shri Manoranjan Debbarma,
Resident of Melarmath Govt. Qrtr. Type-II/31
P.O. Agartala, District West Tripura,
2. Shri Darneal Jamatia,
S/o Shri Debadhan Jamatia,
Resident of Village & P.O. Chachubazar,
P.S. Ompinagar, Amarpur,
Dist. South Tripura,
3. Ms. Krishma Debbarma,
S/o Shri Amrit Debbarma,
Resident of Krishnanagar,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura,
4. Ms. Catherine Halam,
D/o Shri John. N. Halam,
Resident of Krishnanagar, Lake Chowmuhani,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura,
5. Ms. Aseema Chakma,
D/o Shri Ratan Chakma,
Resident of Capital Complex, Khejurbagan,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura,
6. Ms. Sahani Debbarma,
D/o Shri Monoranjan Debbarma,
Resident of Qrtr. No. T/II/24,
Kunjaban Township, Shyamalibazar,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura.
7. Ms. Hellee Debbarma,
D/o Shri Bijan Debbarma,
Resident of village Chargaria,
P.O. Mandai, P.S. Jirania,
Dist. West Tripura.
8. Shri Nitin Murasingh,
S/o Shri Brajalal Murasingh,
Village & P.O. Chailengta, Page No. 4
WP(C) 354/2011 & WA 35/2011
(Jadu Mohan Tripura Complexd),
Langtherai Valley, Dhalai.
9. Ms. Harshita Debbarma,
D/o Shri Dilip Debbarma,
Resident of Krishnanagar,
Colonel Chowmuhani,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura.
10. Shri Saiman Debbarma,
S/o Shri Satya Narayan Debbarma,
Old Kalibari Lane, Krishnanagar,
P.O. Agartala, P.S. West Agartala,
Dist. West Tripura.
11. Shri Amalendu Tripura,
S/o Shri Daya Kumar Tripura,
Resident of Village & P.O. Ludhua,
P.O. Sabroom, Dist. South Tripura,
At present residing at Abhoynagar,
P.O. & P.S. Abhoynagar, P.S. East Agartala,
Dist. West Tripura.
12. Shri Paufru Mog,
S/o Angthai Mog,
Resident of Village & P.O. Santirbazar,
P.S. Santirbazar, Dist. South Tripura.
13. Shri Abhijit Tripura,
S/o Shri Chander Mohan Tripura,
Resident of Bhati Abhoynagar,
Near Cantonment Road, P.O. Agartala,
P.S. West Agartala,
Dist. West Tripura.
14. Shri Branela Debbarma,
S/o Shri Monmohan Debbarma,
Resident of Krishnanagar,
Suparibagan, Near Dasharath Deb Bhawan,
P.S. East Agartala,
Dist. West Tripura.
15. Ms. Namita Kaloi,
D/o Shri Ananta Kaloi,
Resident of Village Boulapasa,
P.O. & P.S. Kailasahar,
Dist. North Tripura.
16. Shri V. S. Zela Darlong,
S/o Shri Lal Hminga Darlong,Page No. 5
WP(C) 354/2011 & WA 35/2011
Resident of Village Munai, P.O. Deoracherra,
P.S. Kaisasahar, Dist. North Tripura.
17. Shri Naresh Chandra Reang,
S/o Shri Shri Shyam Kumar Reang,
Resident of Village Mashurai Para,
Kamalacherra, P. O. & P.S. Ambassa,
Dist. Dhalai.
[Petitioners in WP(C) 337/2011]
By Advocates :
Mr. A. K. Bhowmik, Sr. Advocate.
Mr. M. Debbarma,
Mr. B. Bhattacharjee,
Mr. R. Dutta,
Ms. M. Choudhury,
- versus -
Respondents:
1. The State of Tripura,
Represented by the Secretary to the Government of
Tripura, Department of Higher Education,
New Secretariat, Capital Complex,
P.O. Kunjaban, P.S. East Agartala,
Dist. West Tripura,
2. The Director of Higher Education,
Old Secretariat Building,
P.O. Agartala, P.S. West Tripura,
Dist. West Tripura,
3. The Director of Health Services,
Government of Tripura,
Gurkhabasti, P.O. Kunjaban,
P.S. East Tripura,
Dist. West Tripura,
4. The Medical Council of India,
Having its office at Aiwan-e-Ghalib Marg,
Kotla Road, New Delhi-110002,
Represented by its Secretary,
5. The Tripura Board of Joint Entrance Examination
(Directorate of Higher Education),Page No. 6
WP(C) 354/2011 & WA 35/2011
3rd Floor, Building of Tripura Board of Secondary
Education, Gurkhabasti, Agartala, PIN-799006,
Represented by its Chairman,
6. The Union of India,
Represented by its Secretary,
Ministry of Health & Family Welfare,
Government of India, New Delhi.
By Advocates:
Mr. P. K. Biswas, Assistant Solicitor General of India.
Ms. A. S. Lodh, Govt. Advocate,
Ms. R. Guha, Advocate.
BEFORE
THE HON’BLE MR. JUSTICE I. A. ANSARI
THE HON’BLE MR. JUSTICE C. R. SARMA
Date of hearing : 15.09.2011 & 16.09.2011.
Date of delivery of Judgment: 21.09.2011
JUDGMENT & ORDER
(CAV)
(Ansari, J.)
By this common judgment and order, we propose to dispose
of the writ petition, which has been registered as WP(C) No. 354 of
2011, and also the writ appeal, which has arisen out of the judgment
and order, dated 09-11-2011, passed in WP(C) No. 337 of 2011,
whereby the writ petition stands dismissed inasmuch as the decision
in any of the two, namely, the writ petition or the appeal, would
have a bearing on the outcome of the other, because some of the Page No. 7
WP(C) 354/2011 & WA 35/2011
issues, raised in the appeal and the writ petition, are closely interlinked and wholly inseverable.
2. Before we come to the merit of the writ petition and the
appeal, it is necessary to, first, take note of the material facts, which
have given rise to the present appeal and, then, take note of the
material facts involved with the writ petition. The material facts,
leading to the present appeal, are, therefore, set out, in brief,
hereinbelow:
(i) Out of the appellants, who are 17 in number, as many as
9 appellants appeared in Tripura Board of Secondary Education (in
short, ‘the TBSE’), 6 of the appellants appeared in the Central Board
of Secondary Examination (in short, ‘the CBSE’) and the remaining
two appellants appeared in Indian School Certificate Examination
(in short, ‘the ISCE’). All of them secured more than 40% marks, in
aggregate, in Physics, Chemistry and Biology taken together and
being, thus, qualified to appear in the Joint Entrance Examination (in
short, ‘the JEE’) conducted by the Tripura Board of Joint Entrance
Examination for admission into the MBBS course, in the year 2011,
against 25 seats, reserved for candidates of Scheduled Tribe
belonging to the State of Tripura, the appellants, as members of the
Scheduled Tribe, appeared in the JEE pursuant to the notification,
dated 28.12.2010, issued, in this regard, by Tripura Board of Joint
Entrance Examination. Page No. 8
WP(C) 354/2011 & WA 35/2011
(ii) While inviting applications from candidates for JEE, it
was, nowhere, mentioned by the Tripura Board of Joint Examination
in the notification, dated 28-12-2010, that a student, who appears as
a Scheduled Tribe candidate, has to secure a minimum of 40% marks
in the JEE and, in consequence thereof, the appellants claim to have
remained unaware of the fact that they would be required to secure
minimum 40% marks in the JEE, too, in order to qualify for
allotment of seats in the MBBS course from the State quota meant for
the candidates of the Scheduled Tribe. This apart, though the
Medical Council of India (in short, ‘the MCI’) suggested to the State
Government to provide coaching to the candidates of the Scheduled
Caste and Scheduled Tribe so as to enable them to compete and
qualify in the JEE, no such coaching was ever provided to the
appellants and other similarly situated persons; hence, no condition
for securing of minimum marks, in the said three subjects, in the
JEE, could have been legally insisted upon by the respondents.
(iii) Moreover, no cut-off marks, for allotment of seats to the
candidates in the MBBS course, as prescribed by the MCI, was, in
the past, insisted upon by the Tripura Board for allowing admission
into the MBBS course; but, all of a sudden, the State respondents, at
the time of counselling, informed the appellants and other similarly
situated candidates that none of them had secured, in the JEE, 40%
marks, which was the prescribed cut-off marks for the candidates of
Scheduled Tribe, in the JEE, and, hence, no seat for admission into Page No. 9
WP(C) 354/2011 & WA 35/2011
the MBBS course could be allotted to the appellants. As a result
thereof, out of the total number of 25 seats, reserved for the
candidates of Scheduled Tribe in the State of Tripura, as many as 23
seats have remained vacant. Similarly, though two seats in the said
Medical College of the State are meant for the candidates of
Scheduled Caste belonging to the State of Tripura, both these seats
have remained vacant due to the fact that although the candidates
belonging to the Scheduled Caste did secure more than 40% marks
in Physics, Chemistry and Biology in their qualifying examination,
namely, TBSE, CBSE and ISCE, they have not been able to secure, as
indicated hereinbefore, 40% marks in the JEE. Aggrieved by the
conduct of the respondents, the appellants filed a writ petition,
under Article 226 of the Constitution of India, which gave rise to
WP(C) No.337/2011, challenging the decision of the respondents not
to admit the writ petitioners, i.e., the present appellants, into the
MBBS course against the quota meant for the candidates of
Scheduled Tribe of the State.
(iv) What was, in substance, pointed out, on behalf of the
writ petitioners, in the writ petition (which has given rise to the
present appeal), was that the respondents/authorities concerned
having not provided any coaching for improvement of the
candidates belonging to the Scheduled Caste and Scheduled Tribe so
as to enable them to complete and qualify in the JEE and having also
not informed the candidates, while inviting applications by Page No. 10
WP(C) 354/2011 & WA 35/2011
notification, dated 28.12.2010, for JEE, that even the candidates,
belong to Scheduled Caste or Scheduled Tribe, as the case may be,
would have to secure minimum 40% marks, in the JEE too, in order
to become eligible for admission into the MBBS course against the
quota meant for such candidates in the State, the
respondents/authorities concerned could not have rejected the
candidature of the writ petitioners, (i.e., the present appellants), on
the ground that though they had secured more than 40% marks, in
aggregate, in Physics, Chemistry and Biology, in their respective
qualifying examination, i.e., TBSE, ISCE and CBSE, wherein some of
the writ petitioners, i.e., the present appellants, had secured 70%,
74% etc, marks), they had failed to secure the minimum 40% marks,
in the JEE, as required by the regulations of the MCI. The act of
refusal to admit the writ petitioners (i.e., the present appellants) into
the MBBS course on the ground that the appellants had not secured
40% marks, in the JEE, as indicated hereinbefore, was bad in law,
particularly, when, according to the writ petitioners (i.e., the present
appellants), the requirement of fulfilling the minimum marks of
40%, prescribed under the regulations of the MCI, is, in the light of
the decision, in State of M.P. Vs. Nivedita Jain (AIR 1981 SC 2045),
merely directory and not mandatory and the respondents ought not to
have, therefore, adhered to their decision not to allow the petitioners
to be admitted into the MBBS course on the ground that they had Page No. 11
WP(C) 354/2011 & WA 35/2011
not secured the minimum required marks of 40%, in the said three
subjects, in the JEE.
(v) Resisting the writ petition, which has given rise to the
present appeal, the respondents, in the writ petition, submitted, in
effect, that the regulations of the MCI, when made with the consent
of the Central Government, become statutory in nature and have the
force of law. These regulations, including the regulations, which
prescribe, in respect of the reserved category candidates, securing of
40% marks, in the JEE, as the minimum mark for becoming eligible
for admission into the MBBS course, the same is mandatory in nature
and that the State Government does not have the power to admit,
contrary to the said Regulations, any candidate in its Medical
College. This apart, the respondents pointed out, in the writ petition
(which has given rise to the present appeal), that the regulations of
the MCI were duly published in the official Gazette and must,
therefore, be presumed to be known to all concerned including the
writ petitioners (i.e., the present appellants). The decision, in
Nivedita Jain (supra), pointed out the respondents, which had laid
down that holding of JEE or the prescription of securing minimum
percentage of marks, in the JEE, is merely directory and not
mandatory, has been disagreed to by the Supreme Court in its
subsequent decisions and, hence, the decision, in Nivedita Jain
(supra), can no longer be described as a good law with the result
that the prescription of securing minimum percentage of marks, in Page No. 12
WP(C) 354/2011 & WA 35/2011
the JEE, by even the candidates, belonging to the Scheduled Caste
and Scheduled Tribe, is mandatory in nature and cannot be deviated
from by a State, while admitting candidates into the MBBS course.
(vi) A learned Single Judge of this Court, having found
force in the above submissions, made on behalf of the respondents,
has dismissed the writ petition. Feeling aggrieved, the writ
petitioners are before us in appeal. Thus, the rejection of the
candidature of the writ petitioners (i.e. the present appellants) on the
ground of their failure to secure minimum 40% marks in the JEE,
though each one of them has individually secured more than 40%
marks in Physics, Chemistry and Biology, taken together, in their
respective qualifying examination, namely, TBSE, CBSE and ISCE, was
upheld in the writ petition and it is against this finding and the
dismissal of the writ petition that the present appeal has been
preferred by those, who were the petitioners in the writ petition.
3. Having indicated the case of the appellants, we, now, turn to
the case of those persons, who are writ petitioners in WP(C) No. 354
of 2011. Their case is, in brief, thus: In the State of Tripura, Tripura
State Board is the only State Board, which conducts the qualifying
examination in Higher Secondary (10+2) and, in such a State, no JEE
or combined competitive examination was required to be held inasmuch
as the Regulations 4 and 5 of the MCI, if read together, would clearly
reveal that the basic qualification, for admission into the MBBS
course, is passing of higher secondary or equivalent examination, Page No. 13
WP(C) 354/2011 & WA 35/2011
namely, TBSE, CBSE and ISCE, with not less than 40% marks in
Physics, Chemistry and Biology, in the Higher Secondary (10+2) or
the equivalent examination, these examination having been described
by the MCI’s regulations as the qualifying examination and that in the
case of a State, such as, Tripura, where, there is only one State Board
conducting the qualifying examination, namely, TBSE, holding of the
JEE, which the MCI’s regulations describe as combined competitive
examination, is not at all necessary. The inter se merit list of the
candidates, who obtain requisite marks in the qualifying examination,
shall, therefore, according to these writ petitioners, become the basis
of selection for admission into the MBBS course in a State like
Tripura.
4. In short, what the writ petitioners contend, in the present writ
petition, namely, WP(C) 354/2011, is that in the State of Tripura,
there being only one Board, conducting the qualifying examination, no
joint entrance examination (JEE) or combined competitive examination
is necessary and that inter se merit of the eligible candidates, in the
qualifying examination, shall become the basis for selection for
admission into the MBBS course. These writ petitioners also contend
that in the States, where more than one Board or University or
Examining Body conducts qualifying examination, the holding of
combined competitive examination is, in the light of the decisions, in
Nivedita Jain’s case (supra), optional and even if the combined
competitive examination is required to be held, the requirement of a Page No. 14
WP(C) 354/2011 & WA 35/2011
candidate (belonging to Scheduled Tribe), securing minimum 40%
marks, in Physics, Chemistry and Biology, in combined competitive
examination, cannot be insisted upon, because when a candidate, in a
State, where there is only one University/Board/Examining body
conducting qualifying examination, may, in a given case, receive
admission into the MBBS course if he finds place in the inter se merit
list prepared on the basis of the result of the qualifying examination,
provided that he satisfies the basic pre-requisite of obtaining 40%
marks, in the said three subjects, in the qualifying examination, there is
no reason why a candidate, who has already satisfied the minimum
eligibility criterion of obtaining 40% marks, in the said three
subjects, in the qualifying examination, cannot be selected for
admission into the MBBS course in a State, where there are more
than one University/Board/Examining body for conducting
qualifying examination, if his name finds place in the inter se merit list
prepared on the basis of the result of the combined competitive
examination.
5. Thus, according to these writ petitioners, when the basic
eligibility for admission into the MBBS course is securing of 40%
marks in Physics, Chemistry and Biology, taken together, in the
qualifying examination(s), namely, TBSE, CBSE and ISCE, the
insistence, by the MCI’s regulations, that a candidate, appearing in
the JEE or combined competitive examination, must obtain 40% marks
in the JEE or the combined competitive examination, too, in the said Page No. 15
WP(C) 354/2011 & WA 35/2011
three subjects, in order to become eligible for consideration for
admission into the MBBS course, is discriminatory, irrational,
illogical, arbitrary and does not, therefore, withstand the test of
reasonableness and non-arbitrariness guaranteed under Article 14 of
the Constitution.
6. To put it a little differently, what the writ petitioners, in
WP(C) 359/2011, while challenging the vires and constitutionality of
the MCI’s regulations, contend, is that the basis of selection of
candidates for admission into the MBBS course, in a State, where
there is only one university, board or examining body conducting
qualifying examination, is the requirement of obtaining of minimum
40% marks in Physics, Chemistry and Biology in the qualifying
examination and, consequently, it is possible for a candidate, in such
a State, to enter into the MBBS course if he has satisfied the criterion
of obtaining the minimum of 40% marks in Physics, Chemistry and
Biology in the qualifying examination provided that his name finds
place in the inter se merit list prepared on the basis of the result of
the qualifying examination; whereas, a candidate, in a State, where
there are more than one university, board or examining body
conducting qualifying examination, a candidate, in order to become
eligible for admission into the MBBS course, is required to not only
obtain minimum 40% marks, in the said three subjects, in the
qualifying examination, but he must also obtain, in the combined
competitive examination, 40% marks in the said three subjects, even if Page No. 16
WP(C) 354/2011 & WA 35/2011
his name can be placed in the inter se merit list against the quota
available to him for admission into the MBBS course. Thus, while a
candidate with minimum 40% marks, in the said three subjects, in
the qualifying examination, may enter into the MBBS course in a State,
where there is only one university, board or examining body
conducting qualifying examination, a candidate, in a State, where
there are more than one university, board or examining body
conducting qualifying examination, would become ineligible to get
admission into the MBBS course if he does not secure 40% marks in
the said three subjects, in the combined competitive examination too.
This insistence of obtaining of 40% marks, in the combined competitive
examination, is, according to the writ petitioners, wholly irrational,
unreasonable, arbitrary, discriminatory and the same may, therefore,
not be upheld.
7. We have heard Mr. A.K. Bhowmik, learned Senior counsel,
appearing on behalf of the appellants, and Ms. A. S. Lodh, learned
Govt. Advocate, for the State respondents. We have also heard Mr.
P.K. Biswas, learned ASG, for the MCI.
8. While considering the present appeal as well as the writ
petition, the common grounds of challenge need to be carefully
discerned. It is the stand of the writ appellants as well as the writ
petitioners that in the State of Tripura, there is only one secondary
Board, namely, TBSE, which conducts the qualifying examination and,
hence, it is Regulation 5(5)(i) of the MCI, which ought to have been Page No. 17
WP(C) 354/2011 & WA 35/2011
applied. In other words, according to the appellants as well as the
writ petitioners, the State of Tripura, being a State, which has only
one Education Board, namely, the Tripura State Board, which
conducts the qualifying examination, Tripura shall be taken to be a
State, where one Board is conducting qualifying examination and in
such a case, the requirement of holding of combined competitive
examination, as prescribed by Regulation 5(5)(ii) of the MCI, ought
not to have been insisted upon. The second contention, while
challenging the refusal of the respondents to allow the writ
appellants as well as the writ petitioners’ admission into the MBBS
course, is that even if Regulation 5(5)(ii) is applicable to the State of
Tripura, the application of Regulation 5(5)(ii) is merely directory and
not mandatory. Reliance in support of this contention is placed to
the case of Nivedita Jain (supra).
9. Besides the above two grounds of challenge, which are
common in nature in both the writ appeal as well as writ petition,
the present writ petition puts to challenge the decision of the
respondents on yet another ground and the ground of challenge is
the requirement of Regulation 5(5)(ii) that a candidate, for the
purpose of finding his place in the merit list, prepared on the basis
of the combined competitive examination, must be one, who has
obtained the minimum of 40% marks, in Physics, Chemistry and
Biology, in the combined competitive examination. The requirement of
obtaining 40% marks, in the said three subjects, in the combined Page No. 18
WP(C) 354/2011 & WA 35/2011
competitive examination, has been put to challenge on the ground that
this condition is irrational, unreasonable, discriminatory, wholly
arbitrary and, therefore, does not withstand the test of Article 14
inasmuch as it is possible that in a State, where there is only one
University/Board/ Examining Body, conducting the qualifying
examination, a candidate, who has obtained 40% marks, in the said
three subjects in the qualifying examination, may obtain admission
into the MBBS course by merely securing 40% marks, in the said
three subjects, in qualifying examination, because the merit list is
prepared on the basis of the marks obtained in the qualifying
examination and a candidate, who has obtained merely 40% marks, in
the said three subjects, in the qualifying examination, may find his
place in the inter se merit list, whereas a candidate, in a State, where
there are more than one Board/University/Examining body, which
conducts qualifying examination, is required not only to appear in a
combined competitive examination, but also obtain 40% marks, in the
said three subjects, in the combined competitive examination, too, in
order to receive admission into the MBBS course.
10. The dichotomy, according to these writ petitioners, is that a
candidate, in a State, where there is more than one
University/Board/Examining Body, conducting qualifying
examination, has to, first, satisfy the norm of securing, at least, 40%
marks, in the said three subjects, in the qualifying examination, and,
then, again, he is required to obtain minimum 40% marks, in the Page No. 19
WP(C) 354/2011 & WA 35/2011
said three subjects, in the combined competitive examination too,
though he may have, otherwise, been able to obtain admission on
the basis of the merit list prepared out of the result of the qualifying
examination if he has been a candidate in a State, where there is only
one University/Board/Examining body for conducting qualifying
examination provided his name figured in the inter se merit list
prepared on the basis of the marks obtained in the qualifying
examination. The embargo of securing 40% marks for the second
time, in the said three subjects, in the combined competitive
examination, is, thus, according to these petitioners, wholly
discriminatory, irrational, unreasonable, arbitrary and cannot be
said to withstand the test of Article 14.
11. In other words, according to these writ petitioners,
Regulation 5(5)(ii), which requires not only holding of combined
competitive examination (i.e., JEE), but also prescribes obtaining of
40% marks, in Physics, Chemistry and Biology, taken together, in the
JEE or combined competitive examination, as the minimum qualifying
mark for obtaining admission into MBBS course, is in violation of
Article 14 and what ought to have been done by the MCI, according
to these writ petitioners, was to conduct combined entrance
examination (i.e., JEE) and, on the basis of the marks obtained in such
an examination, inter se merit list ought to have been drawn, as is
done in the case of the State(s), where there is only one
University/Board/Examining Body conducting qualifying Page No. 20
WP(C) 354/2011 & WA 35/2011
examination, and, on the basis of such merit list, candidates ought to
have been admitted into the MBBS course without insisting upon the
condition of securing of 40% marks, in Physics, Chemistry and
Biology, in the combined competitive examination or JEE too. These writ
petitioners contend that when a candidate of every Board, which
conducts qualifying examination, is equally eligible for consideration
for admission into MBBS course on the basis inter se merit list if he
has the minimum qualifying marks of 40%, in Physics, Chemistry
and Biology, taken together, in the qualifying examination(s), namely,
TBSE, CBSE and ISCE, if he is from a State, which has not more than
one University/Board/Examining body conducting qualifying
examination, the insistence by the MCI that even in the combined
competitive examination (i.e., JEE), a candidate must secure 40%
marks, in Physics, Chemistry and Biology for admission into the
MBBS course, is bad in law inasmuch as such a combined entrance
examination (i.e. JEE) is conducted to determine the inter se merit of
the eligible candidates and, in the inter se merit list of the eligible
candidates, if a candidate’s name appears, he ought to be granted
admission into the MBBS course even if he has not secured the
minimum prescribed marks of 40%, in the said three subjects, in the
combined competitive examination (i.e., JEE).
12. In the backdrop of the grievances of the appellants as well as
the writ petitioners, let us, now, determine how far the respondents Page No. 21
WP(C) 354/2011 & WA 35/2011
have been able to meet the challenges posed to their scheme of
selection prescribed by the MCI regulations.
13. For better appreciation of the issue involved, the relevant
portions of Regulations 4 and 5 are reproduced hereinbelow:
“4. Admission to the Medical Course-Eligibility Criteria : No
candidate shall be allowed to be admitted to the Medical Curriculum
proper of first Bachelor of Medicine and Bachelor of Surgery
(MBBS) Course until:
(1) He/she shall complete the age of 17 years on or before 31st
December of the year of admission to the MBBS Course.
(2) He/she has passed qualifying examination as under:
(a) The higher secondary examination or the Indian School
Certificate Examination, which is equivalent to 10+2 Higher
Secondary Examination after a period of 12 years study, the last two
years of study comprising of Physics, Chemistry, Biology and
Mathematics or any other effective subjects with English at a level
not less than the core course for English as prescribed by the
National Council for Educational Research and Training after the
introduction of the 10+2+3 years educational structure as
recommended by the National Committee on education.
5. Selection to Students. The selection of students to medical college
shall be based solely on merit of the candidate and for determination
of merit, the following criteria be adopted uniformly throughout the
country:
(1). In States, having only one Medical College and one
university/board/examining body conducting the qualifying
examination, the marks obtained at such qualifying examination
may be taken into consideration.
(2). In States, having more than one university/board/examining
body conducting the qualifying examination, (or where there is more
than one medical college under the administrative control of one Page No. 22
WP(C) 354/2011 & WA 35/2011
authority) a competitive entrance examination should be held so as
to achieve a uniform evaluation as there may be variation of
standards at qualifying examination conducted by different agencies.
(3). Where there are more than one college in a state and only one
university/board/examining body conducting the qualifying
examination, then a joint selection board be constituted for all the
colleges.
(4). A competitive entrance examination is absolutely necessary in
the cases of institutions of All India character.
5. Procedure for selection to MBBS course shall be as follows:-
i) In case of admission on the basis of qualifying examination under
clause (1) based on merit, the candidate for admission to MBBS
course must have passed in the subjects of Physics, Chemistry,
Biology and English individually and must have obtained a
minimum of 50% marks taken together in Physics, Chemistry and
Biology at the qualifying examination as mentioned in Clause (2) or
Regulation 4. In respect of candidates belonging to Scheduled
Castes, Scheduled Tribes or Other Backward Classes, the marks
obtained in Physics, Chemistry and Biology taken together in
qualifying examination be 40% instead of 50% as above.
ii) In case of admission on the basis of competitive entrance
examination under Clause (2) to (4) of this regulation, a candidate
must have passed in the subjects of Physics, Chemistry, Biology and
English individually and must have obtained a minimum of 50%
marks taken together in Physics, Chemistry and Biology at the
qualifying examination as mentioned in Clause (2) or Regulation 4
and in addition must have come in the merit list prepared as a result
of such competitive entrance examination by securing not less than
50% marks in Physics, Chemistry and Biology taken together in the
competitive examination. In respect of candidates belonging to
Scheduled Castes, Scheduled Tribes or Other Backward Classes the
marks obtained in Physics, Chemistry and Biology taken together in Page No. 23
WP(C) 354/2011 & WA 35/2011
qualifying examination and competitive entrance examination be
40% instead of 50% as stated above.
Provided that a candidate who has appeared in the qualifying
examination the result of which has not been declared, he may be
provisionally permitted to take up competitive entrance examination
and in case of selection for admission to the MBBS course, he shall
not be admitted to that course until he fulfils the eligibility criteria
under Regulation 4.
The following has been added before the proviso to Clause
5(5)(ii) in terms of notification published on 25.03.2009 and the
same is annexed as Annexure-VIII.
Provided that the eligibility criteria for admission to persons
with locomotors disability of lower limbs in terms of Clause 4(3)
above will be a minimum of 45% marks instead of 50% taken
together in qualifying examination and competitive entrance
examination for admission in MBBS course.”
14. From a cautious and careful reading of Regulations 4 and 5, as
a whole, what clearly transpires is that a candidate, in order to
become eligible for admission into the MBBS course, must not only
have passed the qualifying examination, the qualifying examination
being Higher Secondary examination or an equivalent examination,
but must have also secured minimum 40% marks in Physics,
Chemistry and Biology, taken together, in the qualifying examination.
The Regulations also provide that where there is only one
University/Board/Examining Body, which conducts the qualifying
examination, a candidate, who has secured minimum of 40% marks
in Physics, Chemistry and Biology, taken together, in the qualifying Page No. 24
WP(C) 354/2011 & WA 35/2011
examination, is eligible for admission into the MBBS course and an
inter se merit list of such eligible candidates, who come forward to
take admission into the MBBS course, has to be prepared and if such
a candidate finds place in the inter se merit list, prepared on the basis
of the result in the qualifying examination, he shall become entitled to
receive admission into the MBBS course and there is no other
limitation or restriction on the admission of such a candidate. It is,
therefore, quite possible, in such a State, that a candidate enters into
the MBBS course even if he has obtained only the minimum
required marks of 40%, in Physics, Chemistry and Biology, taken
together, in the qualifying examination. This is the scheme of
Regulation 5(5)(i).
15. As against the above scheme of admission in a State, wherein
there is only one University/Board/Examining Body, which
conducts the qualifying examination, Regulation 5(5) (ii) imposes
further restrictions, for the purpose of admission into the MBBS
course, in the case of a State, wherein more than one
University/Board/Examining Body conduct the qualifying
examination. The condition, laid down by Regulation 5(5)(ii), is that
there must be combined competitive examination, popularly known as
Joint Entrance Examination (or JEE), and a candidate, belonging to
Scheduled Caste or Scheduled Tribe, in such a State, must, apart
from having secured 40% marks, in Physics, Chemistry and Biology,
taken together, at the qualifying examination, secure 40% marks, in Page No. 25
WP(C) 354/2011 & WA 35/2011
Physics, Chemistry and Biology, taken together, in the combined
competitive examination (i.e., JEE) too.
16. More elaborately speaking, as against the above scheme
meant for admission, where there is only one
University/Board/Examining Body, which conducts the qualifying
examination, Regulation 5(2) read with Regulation 5(5)(ii) provides
that where there are more than one University/ Board/ Examining
Body, which conduct the qualifying examination, a combined
competitive examination should be held so as to achieve a uniform
evaluation as there may be variation of standards at the qualifying
examination conducted by the different agencies and, in this regard,
Regulation 5(5)(ii) further lays down that in such a case, a candidate,
belonging to Scheduled Caste or Scheduled Tribe, is required not
only to secure, at least, 40% marks in Physics, Chemistry and
Biology, taken together, at the qualifying examination, but he must, in
order to become eligible for consideration for admission into the
MBBS course, obtain a minimum of 40% marks in Physics,
Chemistry and Biology, taken together, at the combined competitive
examination, too.
17. Thus, the language, used in Regulation 5(1) read with
Regulation 5(5)(i) vis-a-vis Regulation 5(2) read with Regulation
5(5)(ii), makes it abundantly clear that if there is a State, where there
is only one University/Board/Examining Body, which conducts the
qualifying examination, then, the marks, obtained at such a qualifying Page No. 26
WP(C) 354/2011 & WA 35/2011
examination, will be the basis for selection for admission into the
MBBS course subject to the condition that a candidate, belonging to
reserved category, in such a State, ought to have obtained a
minimum of 40% marks in Physics, Chemistry and Biology, taken
together, at the qualifying examination, but where there are more than
one University/Board/Examining Body, which conduct the
qualifying examination, there should be a combined competitive
examination so as to achieve a uniform evaluation. In such a combined
competitive examination, in order to obtain admission into the MBBS
course, a general category candidate must secure a minimum of 50%
marks, taken together, in Physics, Chemistry and Biology; whereas a
candidate, belonging to Scheduled Caste or Scheduled Tribe or
Other Backward Classes, must obtain, at least, 40% marks in Physics,
Chemistry and Biology, taken together, in the qualifying examination
as well as the competitive entrance examination.
18. What emerges from the above discussion is that Regulation
5(1) read with Regulation 5(5)(i), while laying down the procedure
for selection of candidates for admission into the MBBS course,
makes it clear that the State, where there is only one
University/Board/Examining Body, which conducts the qualifying
examination, a candidate, belonging to Scheduled Caste or Scheduled
Tribe, would receive admission into the MBBS course in terms of the
inter se merit list of the candidates prepared on the basis of the result
in the qualifying examination even if he has secured merely 40% Page No. 27
WP(C) 354/2011 & WA 35/2011
marks in Physics, Chemistry and Biology in the qualifying
examination inasmuch as there is no further examination, in the form
of combined competitive examination or JEE, and no requirement of
further cut-off mark.
19. What is, now, imperative to note, which is transparent from
the case of the appellants themselves, is that as many as 9 of them
have passed the qualifying examination conducted by the TBSE, 6 of
them have passed the qualifying examination conducted by the CBSE
and the remaining two have passed the qualifying examination
conducted by the ISCE. Clearly, therefore, there are three Boards,
which are conducting the qualifying examination in the State of
Tripura. Thus, in Tripura, it is Regulation 5(2) read with Regulation
5(5)(ii), which would be applicable and have been applied in the
present case.
20. Referring to Nivedita Jain (supra), it has been contended, on
behalf of the appellants, by Mr. Bhowmik, learned Senior counsel,
that even in a State, where there are more than one
University/Board/Examining Body conducting qualifying
examination, it is not mandatory to hold a combined competitive
examination inasmuch as Regulation 5(ii) is merely directory and not
mandatory. Suffice it to point out, in this regard, that much water has
flown since the decision, in Nivedita Jain (supra), was rendered and
in Dr. Preeti Srivastava and another Vs. State of M.P. and others
(1999) 7 SCC 120, a Constitution Bench of the Supreme Court has Page No. 28
WP(C) 354/2011 & WA 35/2011
overruled the decision, in Nivedita Jain (supra), by holding that
Regulation 5(ii) is not merely directory, but mandatory.
21. There can, therefore, be no escape from the conclusion, in the
light of the decision in Dr. Preeti Srivastava (supra), that so long as
Regulation 5(5)(ii) is treated as valid in its entirety, there ought to
have been held, and has been rightly held, in the State of Tripura,
combined competitive examination (i.e., JEE) for admission into the
MBBS. If Regulation 5(5)(ii) is found valid, as a whole, the
respondents cannot be said to have committed any illegality in
conducting combined competitive examination or JEE or in refusing to
admit the writ petitioners as well as the appellants into the MBBS
course on the ground that they have not been able to secure, at least,
40% marks in Physics, Chemistry and Biology, taken together, in the
combined competitive examination or JEE, though they have obtained
40% marks, in the said three subjects in the qualifying examination.
22. It further follows from the above discussion that the
contention of the appellants that in the State of Tripura, TBSE is the
only Board, which conducts the qualifying examination and
Regulation 5(2) read with Regulation 5(5)(ii) is not attracted, has no
substance at all inasmuch as Tripura is a State, wherein more than
one Board, as already indicated hereinabove, have been conducting
the qualifying examination and, hence, the combined competitive
examination or JEE, as perceived by Regulation 5(2) read with Page No. 29
WP(C) 354/2011 & WA 35/2011
Regulation 5(5)(ii), is mandatory provided that this Court upholds the
Regulation 5(5)(ii) in its entirety.
23. Considering the fact that Tripura is a State, where more than
one Board conducts and has been conducting the qualifying
examination and Regulation 5(5)(ii) is applicable, it logically follows
that so long as Regulation 5(ii) is treated as valid in its entirety, a
candidate, belonging to Scheduled Tribe, ought to obtain, at least,
40% marks, in the said three subjects, in the combined competitive
examination or JEE in order to become eligible for admission into the
MBBS course; and the mere fact, that seats are still lying vacant,
cannot be a ground or reason for demanding that the requirement of
securing 40% marks, in the said three subjects, in the JEE or combined
competitive examination, be not insisted upon.
24. As neither the appellants nor the writ petitioners, which has
given rise to WP(C) No. 354 of 2011, have obtained the minimum of
40% marks in the competitive entrance examination or JEE, as
envisaged by Regulation 5(5)(ii), they were not eligible and have
rightly not been treated as eligible for admission into the MBBS
course provided that Regulation 5(5)(ii) is upheld by this Court as a
valid piece of Regulation in its entirety.
25. Let us, therefore, now, determine if Regulation 5(5)(ii) is a
valid piece of Regulation.
26. The thrust of the various decisions and the character of the
judicial pronouncements, on the question of nature of applicability Page No. 30
WP(C) 354/2011 & WA 35/2011
of the regulations of the MCI, is that Medical Council of India is a
creature of the Indian Medical Council Act, which is a piece of
legislation relatable to Entry 66 of List I of the Union List. Any
legislation, made pursuant to Entry 66 List I, shall prevail upon the
State enactment to the extent that the State enactment, which is
made pursuant to Entry 25 or 26 of the List III (Concurrent List), is
repugnant to the legislation made under Entry 66. The Regulations,
made by the Medical Council of India with the approval of the
Central Government, acquire statutory force. Reference, in this
regard, may be made to Medical Council of India Vs. State of
Karnataka and others, reported in (1998) 6 SCC 131.
27. There is no dispute, in the present case, that the Regulations,
made by the MCI, would prevail on the State legislation, if any, or
on the State’s scheme, if any, for admission into the MBBS course.
What was, however, contended, as already indicated above, in the
writ petition, which has given rise to the appeal, is that Regulation
5(5)(ii) of the MCI, which insists that a candidate must secure a
minimum of 40% marks, in the said three subjects, in the combined
competitive examination in order to become eligible for consideration
for admission into the MBBS course, is not mandatory. Reliance, in
support of this proposition, as has been noticed, was placed on State
of M.P. Vs. Nivedita Jain (AIR 1981 SC 2045). The decision, in
Nivedita Jain (supra), has, however, been disagreed to, and Page No. 31
WP(C) 354/2011 & WA 35/2011
specifically overruled, in Dr. Preeti Srivastava (supra), wherein the
Constitution Bench, at para 56, has observed and held thus:
“56. In State of M.P. Vs. Nivedita Jain (1981) 4 SCC 296,
the provisions of the Indian Medical Council Act and the regulations
framed for undergraduate medical courses were considered by the
Court. The Court said that while Regulation I was mandatory,
Regulation II was only recommendatory and need not be followed.
We do not agree with this line of reasoning for the reasons which we
have set out above.”
28. What emerges clearly is that Regulations of the MCI would
prevail if legislation of a given State comes in conflict with the MCI
Regulations.
29. What also clearly emerges from the above discussion is that
Regulation 5(5) (ii) requiring holding of the combined competitive
examination for admission into the MBBS course in a State, where
more than one University/Board/Examining Body conducts the
qualifying examination, is mandatory. These two aspects cannot be
disputed and have, at the end of the hearing, not, in fact, been
disputed.
30. The question, which, however, remains to be decided is:
whether the prescription of securing 40% marks in Physics,
Chemistry and Biology by candidates belonging to Scheduled Caste
or Scheduled Tribe, in the said three subjects, in the combined
competitive examination, is a valid condition, when a counterpart of
such a candidate would be qualified to be admitted into the MBBS
course if his name falls in the inter se merit list prepared on the basis Page No. 32
WP(C) 354/2011 & WA 35/2011
of the marks obtained in the qualifying examination alone provided
that he has obtained 40% marks, in the said three subjects, in the
qualifying examination. It is, thus, the vires of the Regulation 5(5)(ii),
which is under challenge in the writ petition, namely, WP(C)
254/2011.
31. While considering the above aspect of the matter, it needs to
be noted that in Visveswaraiah Technological University and
another Vs. Krishnendu Halder and others, reported in (2011) 4
SCC 606, the Supreme Court, having clearly held that the All India
Council for Technical Education (AICTE), which has been
established under All India Council for Technical Education Act,
1987, for proper planning and coordinated development of technical
education throughout the country is competent to make rules
governing admission into higher education and that determination
of standards fixed by them are beyond the purview of judicial
review, has, nevertheless, pointed out that non-interference in exercise
of power of judicial review is hedged by the condition that standard
fixed shall not be arbitrary. The relevant observations, made in this
regard, which appear at para 17, read as under:
“17. No student or college, in the teeth of the existing and prevalent
rules of the State and the University can say that such rules should
be ignored, whenever there are unfilled vacancies in colleges. In fact,
the State/University may, in spite of vacancies, continue with the
higher eligibility criteria to maintain better standards of
higher education in the State or in the colleges affiliated to Page No. 33
WP(C) 354/2011 & WA 35/2011
the University. Determination of such standards, being part
of the academic policy of the University, are beyond the
purview of judicial review, unless it is established that such
standards are arbitrary or “adversely affect” the standards, if
any, fixed by the central body under a Central enactment. The
order of the Division Bench is, therefore, unsustainable.”
[Emphasis supplied]
32. From what has been observed, in Visveswaraiah
Technological University’s case (supra), it becomes abundantly
clear and leaves no room for doubt that the Constitutionality of a
regulation of the MCI can be challenged on the ground that it is
arbitrary. The question, therefore, which we have to, now, determine
is: Whether Regulation 5(5)(ii) is rational, non-arbitrary, reasonable
and can withstand the test of Article 14.
33. While considering the above aspect of the case, it needs to be
very carefully noted that a candidate, who has passed the qualifying
examination, conducted by any of the University/Board/Examining
Body, is eligible for admission into the MBBS course if he has
obtained a minimum of 40% marks in Physics, Chemistry and
Biology, taken together, in the qualifying examination, provided that
he finds a place in the inter se merit list prepared on the basis of the
marks obtained in the qualifying examination.
34. A minute reading of Regulation 5(5)(ii) leaves no room for
doubt that combined competitive examination has been insisted upon,
and rightly so, in order to achieve a uniform evaluation as there may Page No. 34
WP(C) 354/2011 & WA 35/2011
be variation of standards at various qualifying examination conducted
by different agencies.
35. Thus, it is merely to bring uniformity in the evaluation that
the combined competitive examination is conducted so that inter se
merit list of these candidates can be prepared, who have passed,
with minimum required marks, the qualifying examination from
various Universities/Boards/Examining Bodies and have sought for
admission into the MBBS course.
36. Was it, then, reasonable and rational, on the part of the MCI,
to fix 40% as minimum required marks, in Physics, Chemistry and
Mathematics, in the combined competitive examination, too, for
obtaining admission into the MBBS course ? The irrationality, in this
requirement, can be illustrated thus: Let us assume that Tripura is a
State, wherein it is TBSE alone, which conducts the qualifying
examination; Assam is a State, where, let us assume, it is only the
CBSE, which conducts the qualifying examination and, similarly, West
Bengal, let us assume, is a State, wherein ISCE is the only body,
which conducts the qualifying examination. A candidate, in any of
these States, can get admission into their Medical College if he
secures a minimum of 40% marks, in Physics, Chemistry and
Biology in the qualifying examination, provided that he falls in the
inter se merit list drawn on the basis of the marks obtained by the
candidates in the qualifying examination. It can also be clearly seen
that the results of the qualifying examination, held by each of the Page No. 35
WP(C) 354/2011 & WA 35/2011
bodies, which conducts the said qualifying examination, can become
the basis for drawing inter se merit list of the candidates for
admission into the MBBS course. Consequently, in such a case, even
a candidate, who has obtained the minimum requisite marks of 40%,
in the said three subjects, in the qualifying examination, can get
admitted into the MBBS course if his name finds place in the inter se
merit list drawn on the basis of the result of the qualifying
examination. Let us, now, assume that the same candidate moves
over to, say, the State of U.P., where more than one University,
Board or the Examining Body conducts the qualifying examination. In
such circumstances, on the basis of the combined entrance examination,
a merit list is drawn. This merit list is drawn only out of the
candidates, who have secured, if he belongs to Scheduled Caste or
Scheduled Tribe, the minimum required marks of 40% in Physics,
Chemistry and Biology in the qualifying examination.
37. Ordinarily, on the basis of the merit list, prepared by holding
combined competitive examination, admission into the MBBS course
ought to have been granted, because each of the candidates, who
participates in the combined competitive examination, has already
obtained the minimum required marks of 40%, in the said three
subjects, in the qualifying examination as is done in the case of a State,
wherein only one University, Board or examining Body conducts the
qualifying examination. Why the MCI Regulations insist on securing
40% marks by a candidate, in the combined competitive examination, Page No. 36
WP(C) 354/2011 & WA 35/2011
too, is not discernible from the Regulations, when there is no such
restriction or requirement imposed in the case, where there is only
one University, Board or examining Body, which conducts the
qualifying examination. To a pointed query made by this Court, even
Mr. Biswas, learned ASG, could not explain as to why the MCI has
insisted that a candidate, appearing in the combined competitive
examination, must secure 40% marks in the said three subjects, in the
combined competitive examination, even if the candidate is one, who
has secured 40% marks, in Physics, Chemistry and Biology, in the
qualifying examination, whereas a candidate, who has secured 40%
marks, in Physics, Chemistry and Biology, taken together, in the
qualifying examination (in a State, where only one University/
Board/Examining Body conducts the qualifying examination) can get
admission into the MBBS course if his name finds place in the inter se
merit list prepared on the basis of the result of the qualifying
examination alone.
38. Thus, there is no reason as to why a candidate, appearing in
the combined entrance examination, who has already satisfied the
requirement of obtaining minimum 40% marks, in Physics,
Chemistry and Biology, in the qualifying examination, must also
obtain minimum 40% marks, in the said three subjects, in the
combined competitive examination. Logically speaking, if, in the
combined competitive examination, such a candidate falls within the
merit list prepared on the basis of the marks obtained in the combined Page No. 37
WP(C) 354/2011 & WA 35/2011
competitive examination, he ought to be granted admission into the
MBBS course and if he is to be denied admission, then, the MCI
must explain the reason for doing so and the reason assigned must
be rational.
39. In the present case, the MCI has completely failed to assign
any reason, far less convincing and plausible reason, for insisting
upon securing of minimum 40% marks by Scheduled Caste and
Scheduled Tribe candidates in the combined entrance examination too.
40. It has been faintly attempted by Mr. P.K. Biswas, learned ASG,
to suggest that the idea of insisting upon 40% marks, in the said
three subjects, in the combined competitive examination, is to secure
best of the candidates on merit. This claim, made by Mr. Biswas, on
behalf of the MCI, falls flat, when one notices that a candidate,
belonging to Scheduled Caste or Scheduled Tribe, has the possibility
of entering into the MBBS course in the State, where only one
University/Board/Examining Body has conducted the qualifying
examination, if such a candidate has secured minimum 40% marks, in
Physics, Chemistry and Biology, in the qualifying examination and his
name finds place in the merit list drawn on the basis of the marks
obtained by the candidates in the qualifying examination. This is
precisely what has been in the present case. Similarly, therefore,
after holding combined entrance examination in the States, where more
than one University/Board/Examining Body have been conducting
the qualifying examination, a candidate ought to be selected on the Page No. 38
WP(C) 354/2011 & WA 35/2011
basis of inter se merit list drawn of such candidates, because every
candidate, in the combined competitive examination, has already
satisfied the minimum prescribed requirement of securing of 40%
marks, in Physics, Chemistry and Biology, taken together, in the
qualifying examination. If, in the combined competitive examination, he
does not find place in the inter se merit list as against the quota
available to him, then, such a candidate can have no grievance; but,
if he, otherwise, finds place in the merit list against the quota meant
for him, he cannot, without a rational cause, be denied admission
into the MBBS course, when he has already satisfied the requirement
of obtaining entry into the MBBS course by securing the required
minimum 40% marks, in Physics, Chemistry and Biology, in the
qualifying examination. The purpose of holding the combined
competitive examination ought to have been only to prepare an inter
se merit list of the various candidates, who had appeared in the
qualifying examinations conducted by various University/
Board/Examining bodies. No reason could be assigned, as already
indicated above, as to why there shall be insistence on obtaining 40%
marks by a candidate, in Physics, Chemistry and Biology, in the
combined competitive examination for getting admission into MBBS
course.
41. It needs to be, now, noted that though the regulations, framed
by the MCI, have been upheld by the Supreme Court in its various
judicial pronouncements, the fact of the matter remains that in nonePage No. 39
WP(C) 354/2011 & WA 35/2011
of the decisions, cited and relied upon, the constitutionality and/or
vires of the Regulation 5(5)(ii) have been put to challenge. When the
issue has not specifically been raised and has not been decided, the
constitutionality of the MCI’s Regulation 5(5)(ii) remains open for
challenge on the ground of its irrationality. Considered in this light,
it is open to this Court to determine if the insistence by the MCI that
a candidate, who appears in the combined competitive examination,
must secure, in order to be able to enter into MBBS course,
minimum of 40% marks, in the said three subjects, in the combined
competitive examination, is irrational, when there is no such
restriction, under Regulation 5(5)(i), in respect of a candidate of a
State, where there is only one University/Board/Examining Body,
which conducts the qualifying examination. The logic for having two
different standard is not discernable, when we find that as many as
20 seats, in the quota meant for the candidates of Scheduled Tribe,
belonging to the State of Tripura, have remained without being
filled up due to the condition so imposed by Regulation 5(5)(ii),
whereas all the appellants would have been admitted into the MBBS
course, in the State of Tripura, if there would have been only one
University/Board/Examining Body, conducting the qualifying
examination. It needs to be borne in mind that, in order to pass the
test of Article 14, it is not enough for the State to assign „a‟ reason;
every reason, assigned by the State, must be rational and convincing.
In the present case, the MCI has miserable failed to disclose the Page No. 40
WP(C) 354/2011 & WA 35/2011
rationality behind introducing the cut-off mark of 40% in the
combined competitive examination or JEE too.
42. Because of what have been discussed and pointed out above,
What becomes clear, and we do hold, is that the MCI Regulation
5(5)(ii) is in violation of Article 14, which guarantees equality of
treatment, so far as Regulation 5(5)(ii) requires securing of 40%
marks in the combined competitive examination as the basis for
selection for admission into the MBBS course.
43. In the result and for the reasons discussed above, the appeal
as well as the writ petition succeed. The respondents are hereby
directed to prepare a merit list of the candidates on the basis of the
marks obtained by them, in the combined competitive examination
(JEE), and those candidates, who find their place in the merit list, so
prepared against their respective quota of seats, shall be admitted
into the MBBS course within a week from today.
44. With the above observations and directions, this appeal and
the writ petition shall stand disposed of.
45. No order as to costs.
JUDGE JUDGE
dutt-Paul-rkPage No. 41
WP(C) 354/2011 & WA 35/2011

Post Graduates to be paid Half Pay + DA from 1990

2011-10-14T22:25:00.001+05:30

GOVERNMENT OF TAMIL NADU

ABSTRACT

Tamil Nadu Medical Service- grant of stipend equivalent to half pay plus Dearness
Allowance to Service post Graduates. - Orders issued.
--------------------------------------------------------------------------------------------------------
HEALTH INDIAN MEDICINE AND HOMOEOPATHY AND FAMILY WELFARE
DEPARTMENT
G.O.Ms. No. 485 Dated 2nd April 1991

19 th Panguni Pramodhutha

Thiruvalluvar Aandu 2022

Read Again:

G.O. Ms. No. 774, Health dated 25-4-1990

Denied MBBS seat, girl moves High Court

2011-10-11T20:02:00.000+05:30

http://www.thehindu.com/news/states/tamil-nadu/article2148324.ece

Eighteen-year-old M. Vanathi of Dindigul suffers from “congenital absence of left hand.” She has the left arm but no palm or fingers on it. However, the deformity did not deter her from scoring 1,139 out of 1,200 marks in the recently held Plus Two public examinations.

The girl aspired to be a doctor and applied for medical seat under the quota for physically challenged but only to be rejected by the Selection Committee, Directorate of Medical Education, on the ground that people with deformity on the upper limbs were not eligible for selection.

Pained and dejected over the decision, the girl approached the Madras High Court Bench here on Thursday stating that her dream of becoming a doctor would be shattered and all the efforts put in by her to score a cut-off of 191 marks would go waste if she was not denied admission.

The girl claimed in her affidavit that the deformity was in no way a stumbling block for carrying out her day-to-day activities as she had trained herself even to ride a cycle and cook food at home. Her left arm was not numb. She could feel the sensations which are essential for a doctor to diagnose a patient.

Pointing out that she had already been selected for pursuing an engineering course, the girl said that it was not fair to deny her a medical seat without even assessing her capabilities. When an engineering course could be offered despite the disability, why not medicine, she wondered.

Her counsel U. Nirmala Rani contended that exclusion of such candidates from studying medical courses was in violation of three per cent quota earmarked for physically challenged students under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

After hearing arguments advanced by her, Justice K. Venkataraman passed an interim order directing the Director of Medical Education to keep one medical seat vacant until the disposal of the case. He also ordered the Director to file a detailed counter affidavit.

Tamil Nadu Leave Rules — Maternity Leave — Enhancement of Maternity Leave to 180 days

2011-05-18T07:18:00.000+05:30

ABSTRACT

Tamil Nadu Leave Rules — Maternity Leave — Enhancement of Maternity Leave to 180 days — Orders — Issued.

PERSONNEL AND ADMINISTRATIVE REFORMS (FR.III) DEPARTMENT G.O.(Ms) No.51 Dated: 16.05.2011

sam^-uffin^-al 2,

Olesusirksairi 46tio^-r61 2042

Read:

(1) G.O.(Ms) No.279, Personnel and Administrative Reforms (FR.II) Department, dated 11.03.1980.

(2) G.0.(Ms) No.138, Personnel and Administrative Reforms (FR.III) Department, dated 26.02.1983.

(3) G.O.(Ms) No.237, Personnel and Administrative Reforms (FR.III) Department, dated 29.061993.

ORDER:-

In the Government Order 1^st read above, the Maternity Leave admissible to married women Government Servants was enhanced to 90 days which may be spread over from the pre-confinement rest to post-confinement recuperation at the option of the Government Employee. It was also ordered therein that the Maternity Leave will not be admissible to women Government Servants with more than three children. Further, in the Government Order 2^nd read above, necessary amendments to Rule 101(a) of the Fundamental Rules were issued, based on the executive orders issued in the Government Order 1^st read above. Based on the recommendation of the Tamil Nadu third pay commission and on par with Central Government Employees, orders were issued in the Government Order 3^rd read above to the effect that a woman Government Servant with less than two surviving children be allowed Maternity Leave for a period of 90 days from the date of its commencement.

2. The Government after careful consideration direct that the Maternity

Leave admissible to married women Government Servants which is 90 days at present

..2..

be enhanced to 180 days which may be spread over from the pre-confinement rest to post-confinement recuperation at the option of the woman Government Servant. The Maternity Leave will be admissible to married women Government Servants with less than two surviving Children.

3. Necessary amendments to Fundamental Rules will be issued separately.

(BY ORDER OF THE GOVERNOR)

R. KANNAN
PRINCIPAL SECRETARY TO GOVERNMENT

All Secretaries to Government, Chennai-9. All Departments of Secretariat, Chennai-9. The Secretary, Legislative Assembly Secretariat, Chennai-9.

All Heads of Departments.

All District Collectors.

All District Judges.

All District Magistrates.

The Secretary, Tamil Nadu Public Service Commission, Chennai-6.

The Registrar, High Court, Chennai-104.

Copy to:

The Secretary to Chief Minister, Chennai-9.

The Private Secretary to Chief Secretary to Government, Chennai-9 The Private Secretary to Principal Secretary to Government, Personnel and Administrative Reforms Department, Chennai-9.

The Private Secretary to Principal Secretary to Government,

Personnel and Administrative Reforms (Training) Department, Chennai-9.

All Sections in Personnel and Administrative Reforms Department, Chennai - 9. S.F./S.C.

//FORWARDED BY ORDER//

Private practice by govt doctors no crime: Supreme Court

2011-05-02T10:42:00.000+05:30

From http://articles.timesofindia.indiatimes.com/2011-04-29/india/29486752_1_private-practice-government-doctor-prevention-of-corruption-act

NEW DELHI: The Supreme Court on Thursday ruled that government doctors defying the ban on private practice and charging consultation fee from patients in a clinic during spare time could neither be accused of indulging in trade nor be booked under the anti-corruption law.

A bench comprising Justices Markandey Katju and Gyan Sudha Misra quashed the FIR lodged against two Punjab government doctors, who were charging Rs 100 per patient in an evening private clinic, under Prevention of Corruption Act and Section 168 of the Indian Penal Code, under which it is an offence for a government servant to engage in a trade.

As the Punjab government had banned private practice by doctors in its employment, the police booked the two in April 2003 for charging fee from patients. The bench said at best it could amount to breaching a government order making them liable for departmental action.

Supreme Court : Pvt practice by govt docs not corruption

2011-05-01T10:42:00.000+05:30

From http://www.tribuneindia.com/2011/20110429/nation.htm#7

C: Pvt practice by govt docs not corruption
R Sedhuraman
Legal Correspondent

New Delhi, April 28
The Supreme Court today ruled that government doctors doing private practice cannot be booked for corruption or being engaged in unlawful trade.

A Bench comprising Justices Markandey Katju and Gyan Sudha Misra passed the verdict, while setting aside a Punjab and Haryana High Court judgment upholding a corruption case filed against two state government doctors posted in Koom Kalan in Ludhiana district.

An FIR had been lodged against Dr Rajinder Singh Chawla and Dr Kanwarjit Singh Kakkar on April 9, 2003 under the Prevention of Corruption Act (PCA) following a complaint by a person who claimed that the two doctors, while functioning from home, had charged him Rs 100 as prescription. According to the complainant, government doctors are not supposed to charge any fee from the patients and doing so amounts to corruption.

The SC Bench noted that under the PCA “corruption is acceptance or demand of illegal gratification for doing an official act. We find no difficulty in accepting the submission and endorsing the view that the demand/receipt of fee while doing private practice by itself cannot be held to be an illegal gratification as the same obviously is the amount charged towards professional remuneration.”

Further, it would be “preposterous in our view to hold that if a doctor charges fee for extending medical help and is doing that by way of his professional duty, the same would amount to illegal gratification as that would be even against the plain common sense.”

Government doctors would come under the purview of the PCA or other criminal offence if, for instance, they took money for admitting patients in government hospital or prescribed unnecessary surgery for the purpose of extracting money by way of professional fee and a host of other circumstances, the apex court noted.

The Bench also ruled that the accused doctors could not be booked even under Section 168 IPC for engaging in unlawful trade. “In our view, offence under Section 168 of the IPC cannot be held to have been made out against the appellants as the treatment of patients by a doctor cannot by itself be held to be engagement in a trade as the doctors’ duty to treat patients is in the discharge of his professional duty which cannot be held to be a trade so as to make out or constitute an offence.”

The accused doctors could be subjected only to departmental proceedings for violating government instructions that allowed private practice only with permission, the SC ruled.

PGs Eligible for Week Off and National Holidays : TN MGR Univ Circular Based on Madras High Court Judgement

2011-03-11T23:02:00.002+05:30

Click here for the Circular : http://www.tnmmu.ac.in/pdf/2011/attweb.pdf

The Tamil Nadu Dr. M.G.R. Medical University : TERM DAYS FOR ALL Post Graduates & Under Graduates
Post Graduates
No of  days in a year : 365 days
Weekly off : 52 days
Holidays : 23 days
75  days
Working days for the academic year   290 days
90%   of attendance is compulsory. No Condonation is allowed.

Under Graduates
No of  days in a year 365 days
Weekly off 52 days
Govt. Holidays 22 days
Holidays 21 days
95 days
Working days for the academic year      270 days
90%   of attendance is compulsory. No Condonation is allowed.

This is based on the following Judgement http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=29802

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :-17.02.2011

Coram

The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE
and
The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM

W.P.No.2454 of 2010

E.Pradeep Prem Kumar ... Petitioner
vs.

1.State of Tamil Nadu,
Rep. by the Secretary,
Health and Family Welfare Department,
Chennai 600009.

2.The Medical Council of India,
Rep. by the Registrar,
Pocket 14, Sector 8, Dwarka Phase 1
New Delhi 110 077.

3.The Registrar
Tamil Nadu Dr.M.G.R. Medical University,
No.69, Anna Salai, Guindy,
Chennai.

4.The Director of Medical Education,
EVR Periyar Road,
Kilpauk, Chennai 600010. ... Respondents

PRAYER : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Mandamus to direct the respondents to prescribe working hours, weekly off, leave including maternity leave, holidays, etc. for the post graduate degree students in the medical colleges affiliated to respondent 3-Tamil Nadu Dr.MGR Medical University, Chennai within a time as may be fixed.

For petitioner :Mr.M.Radhakrishnan
For Respondents :Mr.G.Sankaran Spl. G.P. for R1 & R4
Mr.V.P.Raman for R2
Mr.P.Wilson AAG for Mr.S.Saravanan for RR3

O R D E R

THE HON'BLE THE CHIEF JUSTICE &
T.S.SIVAGNANAM, J.

By way of this public interest litigation, the petitioner who is undergoing his post graduate M.S. degree course in Tirunelveli Medical College and Hospital, has sought for a direction upon the respondents to prescribe working hours, weekly off, leave including maternity leave, holidays, etc. for the post graduate degree students in medical colleges affiliated to the third respondent University.

2. The case of the petitioner is that a candidate, who joins a post graduate programme in any one of the affiliated colleges of the third respondent University, is compelled to work for 24 hours on all 365 days and the third respondent University has failed to frame any regulation to regulate the working hours, and no provision has been made by the University as regards the leave entitlement and the University has totally ignored the relevance of reasonable working hours and need for rest for the students. It is further stated that the Medical Council of India has framed regulations and under Regulation 13.3, there is a duty cast upon the University and the State Government to frame leave rules for such post graduate students. The petitioner has placed reliance on the residency programme, which has been implemented by the Government of Kerala by G.O.Ms.No.20, dated 13.01.2009, and submits that the students undergoing post graduate course of study in Kerala State get 20 days casual leave in a year and 15 days special leave to participate in the conference and seminars and maternity leave upto 4 months with full stipend for women and weekly off for one day. The petitioner further states that the residency scheme in JIPMER also stipulates that working hours should not exceed 12 hours at a time. Thus, the petitioner states that the respondents should frame regulations by prescribing working hours for the post graduate degree students in the medical colleges affiliated to the third respondent University.

3. The Medical Council of India (MCI) have filed a counter affidavit inter alia contending that in exercise of powers conferred under Sections 20 and 33 of the Indian Medical Council Act, 1956, the MCI has published the Post Graduate Medical Education Regulations, 2000, which was approved by the Government of India and as per clauses 13.2 & 13.3, of the said regulation, all candidates joining post graduate training programme shall attend not less than 80% of the imparted training during each academic year and the matter for grant of leave to post graduate students shall be regulated as per the respective State Government Rules. It has been further stated that this Court exercising jurisdiction under Article 226 of the Constitution of India, would not be justified to substitute its opinion over the opinion of the expert bodies created under the statue.

4. The third respondent University in their affidavit have stated that an expert committee has framed regulations for cut off date for admission to Under Graduate/Post Graduate/Diploma courses and percentage of attendance required to appear for the University examination. The said regulations were approved by the Standing Academic Board in its meeting held on 21.06.2010 and the same was approved in resolution passed by the Governing Council in its meeting held on 14.07.2010. Further, the expert committee in its meeting held on 11.08.2010, after making necessary scrutiny and deliberations have framed the regulation with regard to leave to the post graduate students to the effect that the cut off date for admission to Post Graduate Degree/Diploma course is 31st May of every year, the classes will commence from 1st May of the same year and the University examination will commence from 15th April of the next year. 90% of the attendance of the course period excluding any kind of leave is mandatory for the post graduate students to appear for the University examination and there shall be no condonation for lack of attendance for post graduate degree courses. It is further stated that the expert committee has followed the same regulations as approved by the Standing Academic Board in its meeting held on 21.06.2010. With the above averments, the third respondent University prayed for dismissal of the writ petition.

5. Though the State Government has impleaded as the first respondent, and they have not filed counter affidavit.

6. Heard Mr.M.Radhakrishnan, learned counsel appearing for the petitioner, Mr.P.Wilson, learned Additional Advocate General appearing for the third respondent University, Mr.V.P.Raman, learned counsel appearing for the Medical Council of India and Mr.G.Sankaran, learned Special Government Pleader appearing for the respondents 1 & 4.

7. The learned counsel appearing for the petitioner would vehemently contend that the candidates, who are pursuing the post graduate programme in the colleges affiliated to the third respondent University are virtually treated like bonded labourers and compelled to work all 365 days of the year for 24 hours a day; they are all compelled to work for 36 hours continuously, which is not only conducive for the candidates, but detrimental to the patients, who are treated, since as the post graduate students, they are interns and on account of long working hours, the public are put to danger. The learned counsel placing emphasis on the scheme introduced by the Government of Kerala submits that a similar scheme/regulation has to be introduced in the State of Tamil Nadu. The learned counsel further placed reliance on survey reports, which were conducted in the United States as well as United Kingdom relating to extended duration of work shifts and submits that the survey has reported that on account of extended duration of work shifts has increased the risk of significant medical errors, adverse events and attentional failures in interns across the United States and the results have important public policy implications for postgraduate medical education. Therefore, it is contended by the learned counsel for the petitioner that time has come for the State Government to act and relieve such post graduate interns from such extended working hours.

8. The learned Additional Advocate General submits that the petitioner's contention that the post graduate students/interns are treated as bonded labourers, is ridiculous and the petitioner has lost sight of the fact that the students, who are pursuing their post graduate programme are to be actively associated in the treatment process either surgical or medical procedures and the patient is the study material and a duty is cast on them to be available to render assistance to team of Doctor under whom these post graduate students are attached. The learned Additional Advocate General further submits that the post graduate students are attached to a unit headed by a Professor and they are actively associated in the treatment process, which would equip them better to face future challenges. The learned Additional Advocate General would further submit that the reliance placed on the scheme implemented by the Government of Kerala is of no relevance, since under the scheme framed by the Government of Kerala a resident Doctor is a temporary employee, therefore, certain rules have been framed for the purpose of granting leave by the Government of Kerala and the nature of duties and responsibilities of an interns pursuing post graduate programme in the State of Tamil Nadu is entirely different and it cannot be compared to that of the State of Kerala. Further, the learned counsel placed reliance on the regulation framed by the University, which states that each academic year shall consist of not less than 200 working days and 90% attendance is compulsory.

9. It is seen that the Government of Kerala by G.O.Ms.No.20, dated 13.01.2009, issued certain directions for implementation of residency programme in Government medical colleges in the State of Kerala. The genesis of such programme is based on a report submitted by a one man committee and the Government accepted the recommendations made by one man committee and evolved a new scheme. It is significant to note under the scheme evolved by the Government of Kerala, a resident doctor has to function as the junior most staff member in the respective department to provide teaching and training and services to the patients and they are the first level managers of specialty departments. Further, under the scheme a resident doctor will be a temporary employee of the institution. The scheme has also fixed remuneration based on the nature of postgraduate study, which the candidate pursues.

10. As rightly pointed out by the learned Additional Advocate General, the postgraduate programme in the State of Tamil Nadu, as regulated by the third respondent University, is different from that of the programme in the State of Kerala. Under the regulations framed by the University called the Regulation for the M.S. Postgraduate Degree Clinical courses, it has been stipulated that each academic year shall consist of not less than 200 working days. The regulation also stipulates the attendance requirements and also specifically states that there shall be no condonation of attendance in postgraduate courses. Therefore, the petitioner may not be justified in approach this Court to direct the academicians to frame a scheme in line with the scheme implemented by the Government of Kerala.

11. As noticed above, the postgraduate residents in State of Kerala are being treated as temporary employees of the respective institution and thereby certain rules and regulations, which are applicable to regular employees have been extended to them. It is for the policy makers and academicians to decide as to what would be the best procedure/regulation to be adopted bearing in mind not only the excellent of education, quality of student training and more importantly safety of the patients. It is not in dispute that the students pursuing the postgraduate programme assist the team of doctors in the unit, which they are post graduate for administering the treatment to the patients. The concept of internship is "learn and serve". Therefore, if a postgraduate students is over worked and on account of fatigue, there is any error in the line of treatment, it would undoubtedly be against public interest.

12. At this stage, we may refer to a study, which was conducted in the United States, the report which has been downloaded from the website www.plosmedicine.org. This report has been prepared by a research group who wanted to find out whether long shifts worked by interns in USA had an effect on reported medical errors and hence patient safety and specifically whether any harm that happened to patients might otherwise have been preventable. The research appears to have been conducted all US medical school graduates beginning their internships from one particular year-group, by email, and each person was asked whether they wanted to take part in a confidential survey. Individuals who agreed to participate were required to complete a form each month giving details about their working hours, hours of sleep number of extended-duration shifts etc. It is reported that a total of 2,737 interns took part in the survey. It has been stated that in the US medical students, who are doing their internship (first year of postgraduate clinical training) regularly work in the clinic for longer than 24 hours at a time and that doctors are students who work for long shifts make more medical errors and are less able to pay attention to what they are doing. The conclusion of the survey is to the following effect:-
In our survey, extended-duration work shifts were associated with an increased risk of significant medical errors, adverse events, and attentional failures in interns across the United States. These results have important public policy implications for postgraduate medical education."

13. In an article "Surgical Training and Working Time Restriction" published in the British Journal of Surgery Society Ltd, it has been stated as follows:-
"Working time restriction has been enforced by law in Europe and North America, decreasing the time that can be spent training in hospital. These regulations are driven by concern that fatigued trainees who have been deprived of sleep are prone to increased error when delivering care.
.... Furthermore, truck drivers and airline pilots have far more restrictive duty hours than surgeons, and surgeons are not immune to the effects of sleep deprivation and unnatural circadian cycles associated with long shifts. It is also true that trainees' quality of life is improved with shorter hours of duty; they experience a decrease in depression scores and emotional exhaustion, have less risk of motor vehicle accident, have more time with their families, and more time to read."

14. We have referred to the above survey reports and study material with a view to impress upon to the respondent to take a fresh look in the matter bearing in mind that attentional failures in interns leading to medical errors may have disastrous consequences and ultimately affecting public health. Moreover the time schedule fixed in the Government hospitals as also corporate hospitals compelling the doctors doing post graduate courses/interns to work continuously 36 hours or even 24 hours at one stretch cannot be appreciated. Therefore, the respondents may take note of the above study and if so advice could constitute a team to conduct a study on the conditions prevailing in Tamil Nadu and if the study report reveals a disturbing trend in error of diagnosis or treatment, the respondent shall revisit the matter and frame fresh regulations to regulate the pattern of the postgraduate programme in line with the programme schedule adopted in other countries.

15. For the above reasons, we dispose of the writ petition with the above observations. No costs. Consequently, connected miscellaneous petitions are closed.

pbn

To

1.State of Tamil Nadu,
Rep. by the Secretary,
Health and Family Welfare Department,
Chennai 600009.

2.The Medical Council of India,
Rep. by the Registrar,
Pocket 14, Sector 8, Dwarka Phase 1
New Delhi 110 077.

3.The Registrar
Tamil Nadu Dr.M.G.R. Medical University,
No.69, Anna Salai, Guindy,
Chennai.

4.The Director of Medical Education,
EVR Periyar Road,
Kilpauk,
Chennai 600010

Supreme Court : Euthanasia : Full Judgement

2011-03-09T13:20:00.002+05:30

REPORTABLE
ITEM NO.1A COURT NO.6 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CRL.) NO(s). 115 OF 2009
ARUNA RAMCHANDRA SHANBAUG Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
[HEARD BY HON'BLE MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.)
Date: 07/03/2011 This Writ Petition was called on for Judgment today.
Amicus Curiae Mr. G.E. Vahanvati, Attorney General(Not present)
Mr. Chinmoy P. Sharma, Adv.
Dr. Aaray Lingaiah, Adv.
Mr. Nishanth Patil, Adv.
Mr. Anoopam Prasad, Adv.
Ms. Naila Jung, Adv.
Mr. Rohit Sharma, Adv.
Mr. D.D.Kamat, Adv.
Mr. D.S.Mahra, Adv.
Amicus Curiae Mr. T.R. Andhyarujina, Sr. Adv.
Mr. Soumik Ghosal, Adv.
For Petitioner(s) Mr. Shekhar Naphade, Sr. Adv.
Ms. Shubhangi Tuli, Adv.
Ms. Divya Jain, Adv.
Mr. Vimal Chandra S. Dave,Adv.
For Respondent(s) Ms. Sunaina Dutta, Adv.
Mrs.Suchitra Atul Chitale,Adv.
Ms. Asha Gopalan Nair, Adv.
Hon'ble Mr. Justice Markandey Katju pronounced the
judgment of the Bench comprising His Lordship and Hon'ble
Mrs. Justice Gyan Sudha Misra.
For the reasons given in the reportable judgment which
is placed on the file, the writ petition is dismissed.
(Parveen Kr.Chawla)
Court Master
( Indu Satija )
Court Master
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 115 OF 2009
Aruna Ramchandra Shanbaug .. Petitioner
-versus-
Union of India and others .. Respondents
J U D G M E N T
Markandey Katju, J.
“Marte hain aarzoo mein marne ki
Maut aati hai par nahin aati”
-- Mirza Ghalib
1. Heard Mr. Shekhar Naphade, learned senior
counsel for the petitioner, learned Attorney General
for India for the Union of India Mr. Vahanvati, Mr.
T. R. Andhyarujina, learned Senior Counsel, whom we
had appointed as amicus curiae, Mr. Pallav Sisodia,
learned senior counsel for the Dean, KEM Hospital,
Mumbai, and Mr. Chinmay Khaldkar, learned counsel
2
for the State of Maharashtra.
2. Euthanasia is one of the most perplexing issues
which the courts and legislatures all over the world
are facing today. This Court, in this case, is
facing the same issue, and we feel like a ship in an
uncharted sea, seeking some guidance by the light
thrown by the legislations and judicial
pronouncements of foreign countries, as well as the
submissions of learned counsels before us. The case
before us is a writ petition under Article 32 of the
Constitution, and has been filed on behalf of the
petitioner Aruna Ramachandra Shanbaug by one Ms.
Pinki Virani of Mumbai, claiming to be a next
friend.
3. It is stated in the writ petition that the
petitioner Aruna Ramachandra Shanbaug was a staff
Nurse working in King Edward Memorial Hospital,
Parel, Mumbai. On the evening of 27th November, 1973
she was attacked by a sweeper in the hospital who
wrapped a dog chain around her neck and yanked her
3
back with it. He tried to rape her but finding that
she was menstruating, he sodomized her. To
immobilize her during this act he twisted the chain
around her neck. The next day on 28th November, 1973
at 7.45 a.m. a cleaner found her lying on the floor
with blood all over in an unconscious condition. It
is alleged that due to strangulation by the dog
chain the supply of oxygen to the brain stopped and
the brain got damaged. It is alleged that the
Neurologist in the Hospital found that she had
plantars' extensor, which indicates damage to the
cortex or some other part of the brain. She also had
brain stem contusion injury with associated cervical
cord injury. It is alleged at page 11 of the
petition that 36 years have expired since the
incident and now Aruna Ramachandra Shanbaug is about
60 years of age. She is featherweight, and her
brittle bones could break if her hand or leg are
awkwardly caught, even accidentally, under her
lighter body. She has stopped menstruating and her
skin is now like papier mache' stretched over a
skeleton. She is prone to bed sores. Her wrists are
4
twisted inwards. Her teeth had decayed causing her
immense pain. She can only be given mashed food, on
which she survives. It is alleged that Aruna
Ramachandra Shanbaug is in a persistent negetative
state (p.v.s.) and virtually a dead person and has
no state of awareness, and her brain is virtually
dead. She can neither see, nor hear anything nor can
she express herself or communicate, in any manner
whatsoever. Mashed food is put in her mouth, she is
not able to chew or taste any food. She is not even
aware that food has been put in her mouth. She is
not able to swallow any liquid food, which shows
that the food goes down on its own and not because
of any effort on her part. The process of digestion
goes on in this way as the mashed food passes
through her system. However, Aruna is virtually a
skeleton. Her excreta and the urine is discharged on
the bed itself. Once in a while she is cleaned up
but in a short while again she goes back into the
same sub-human condition. Judged by any parameter,
Aruna cannot be said to be a living person and it is
only on account of mashed food which is put into her
5
mouth that there is a facade of life which is
totally devoid of any human element. It is alleged
that there is not the slightest possibility of any
improvement in her condition and her body lies on
the bed in the KEM Hospital, Mumbai like a dead
animal, and this has been the position for the last
36 years. The prayer of the petitioner is that the
respondents be directed to stop feeding Aruna, and
let her die peacefully.
4. We could have dismissed this petition on the
short ground that under Article 32 of the
Constitution of India (unlike Article 226) the
petitioner has to prove violation of a fundamental
right, and it has been held by the Constitution
Bench decision of this Court in Gian Kaur vs.
State of Punjab, 1996(2) SCC 648 (vide paragraphs 22
and 23) that the right to life guaranteed by Article
21 of the Constitution does not include the right to
die. Hence the petitioner has not shown violation
of any of her fundamental rights. However, in view
of the importance of the issues involved we decided
6
to go deeper into the merits of the case.
5. Notice had been issued by this Court on
16.12.2009 to all the respondents in this petition.
A counter affidavit was earlier filed on behalf of
the respondent nos.3 and 4, the Mumbai Municipal
Corporation and the Dean, KEM Hospital by Dr. Amar
Ramaji Pazare, Professor and Head in the said
hospital, stating in paragraph 6 that Aruna accepts
the food in normal course and responds by facial
expressions. She responds to commands intermittently
by making sounds. She makes sounds when she has to
pass stool and urine which the nursing staff
identifies and attends to by leading her to the
toilet. Thus, there was some variance between the
allegations in the writ petition and the counter
affidavit of Dr. Pazare.
6. Since there was some variance in the allegation
in the writ petition and the counter affidavit of
Dr. Pazare, we, by our order dated 24 January, 2011
appointed a team of three very distinguished doctors
7
of Mumbai to examine Aruna Shanbaug thoroughly and
submit a report about her physical and mental
condition. These three doctors were :
(1) Dr. J. V. Divatia, Professor and Head,
Department of
Anesthesia, Critical Care and Pain at Tata
Memorial
Hospital, Mumbai;
(2) Dr. Roop Gursahani, Consultant Neurologist at
P.D.Hinduja, Mumbai; and
(3) Dr. Nilesh Shah, Professor and Head,
Department of Psychiatry at Lokmanya Tilak
Municipal Corporation
Medical College and General Hospital.
7. In pursuance of our order dated 24th January,
2011, the team of three doctors above mentioned
examined Aruna Shanbuag in KEM Hospital and has
submitted us the following report:
“ Report of Examination of Ms. Aruna Ramachandra Shanbaug
Jointly prepared and signed by
1. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical Care
and Pain, at Tata Memorial Hospital, Mumbai)
2. Dr. Roop Gursahani
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
3. Dr. Nilesh Shah
8
(Professor and Head, Department of Psychiatry at Lokmanya
Tilak Municipal Corporation Medical College and General
Hospital).
I. Background
As per the request of Hon. Justice Katju and Hon.
Justice Mishra of the Supreme Court of India, Ms. Aruna
Ramachandra Shanbaug, a 60-year-old female patient was
examined on 28th January 2011, morning and 3rd February
2011, in the side-room of ward-4, of the K. E. M. Hospital
by the team of 3 doctors viz. Dr. J.V. Divatia (Professor
and Head, Department of Anesthesia, Critical Care and
Pain at Tata Memorial Hospital, Mumbai), Dr. Roop
Gursahani (Consultant Neurologist at P.D. Hinduja
Hospital, Mumbai) and Dr. Nilesh Shah (Professor and
Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General
Hospital).
This committee was set up because the Court found
some variance between the allegations in the writ petition
filed by Ms. Pinki Virani on behalf of Aruna Ramchandras
Shanbaug and the counter affidavit of Dr. Pazare. This
team of three doctors was appointed to examine Aruna
Ramachandra Shanbaug thoroughly and give a report to
the Court about her physical and mental condition
It was felt by the team of doctors appointed by the
Supreme Court that longitudinal case history and
observations of last 37 years along with findings of
examination will give a better, clear and comprehensive
picture of the patient’s condition.
This report is based on:
1. The longitudinal case history and observations obtained
from the Dean and the medical and nursing staff of K. E.
M. Hospital,
9
2. Case records (including nursing records) since January
2010
3. Findings of the physical, neurological and mental status
examinations performed by the panel.
4. Investigations performed during the course of this
assessment (Blood tests, CT head, Electroencephalogram)
II. Medical history
Medical history of Ms. Aruna Ramachandra
Shanbaug was obtained from the Dean, the Principal of the
School of Nursing and the medical and nursing staff of
ward-4 who has been looking after her.
It was learnt from the persons mentioned above that
1. Ms. Aruna Ramachandra Shanbaug was admitted in the
hospital after she was assaulted and strangulated by a
sweeper of the hospital on November 27, 1973.
2. Though she survived, she never fully recovered from the
trauma and brain damage resulting from the assault and
strangulation.
3. Since last so many years she is in the same bed in the
side-room of ward-4.
4. The hospital staff has provided her an excellent nursing
care since then which included feeding her by mouth,
bathing her and taking care of her toilet needs. The care
was of such an exceptional nature that she has not
developed a single bed-sore or fracture in spite of her bedridden
state since 1973.
5. According to the history from them, though she is not
very much aware of herself and her surrounding, she
somehow recognizes the presence of people around her
and expresses her like or dislike by making certain types of
vocal sounds and by waving her hands in certain manners.
She appears to be happy and smiles when she receives her
favorite food items like fish and chicken soup. She accepts
feed which she likes but may spit out food which she
10
doesn’t like. She was able to take oral feeds till 16th
September 2010, when she developed a febrile illness,
probably malaria. After that, her oral intake reduced and a
feeding tube (Ryle’s tube) was passed into her stomach via
her nose. Since then she receives her major feeds by the
Ryle’s tube, and is only occasionally able to accept the oral
liquids. Malaria has taken a toll in her physical condition
but she is gradually recuperating from it.
6. Occasionally, when there are many people in the room
she makes vocal sounds indicating distress. She calms
down when people move out of her room. She also seems
to enjoy the devotional songs and music which is played in
her room and it has calming effect on her.
7. In an annual ritual, each and every batch of nursing
students is introduced to Ms. Aruna Ramachandra
Shanbaug, and is told that “She was one of us”; “She was a
very nice and efficient staff nurse but due to the mishap
she is in this bed-ridden state”.
8. The entire nursing staff member and other staff members
have a very compassionate attitude towards Ms. Aruna
Ramachandra Shanbaug and they all very happily and
willingly take care of her. They all are very proud of their
achievement of taking such a good care of their bed-ridden
colleague and feel very strongly that they want to continue
to take care of her in the same manner till she succumbs
naturally. They do not feel that Ms. Aruna Ramachandra
Shanbaug is living a painful and miserable life.
III. Examination
IIIa. Physical examination
She was conscious, unable to co-operate and
appeared to be unaware of her surroundings.
Her body was lean and thin. She appeared neat and
clean and lay curled up in the bed with movements of the
left hand and made sounds, especially when many people
were present in the room.
11
She was afebrile, pulse rate was 80/min, regular, and
good volume. Her blood pressure recorded on the nursing
charts was normal. Respiratory rate was 15/min, regular,
with no signs of respiratory distress or breathlessness.
There was no pallor, cyanosis, clubbing or icterus.
She was edentulous (no teeth).
Skin appeared to be generally in good condition,
there were no bed sores, bruises or evidence of old healed
bed sores. There were no skin signs suggestive of
nutritional deficiency or dehydration.
Her wrists had developed severe contractures, and
were fixed in acute flexion. Both knees had also developed
contractures (right more than left).
A nasogastric feeding tube (Ryle‟s tube) was in situ.
She was wearing diapers.
Abdominal, respiratory and cardiovascular
examination was unremarkable.
IIIb. Neurological Examination
When examined she was conscious with eyes open
wakefulness but without any apparent awareness (see
Table 1 for detailed assessment of awareness). From the
above examination, she has evidence of intact auditory,
visual, somatic and motor primary neural pathways.
However no definitive evidence for awareness of auditory,
visual, somatic and motor stimuli was observed during our
examinations.
There was no coherent response to verbal commands
or to calling her name. She did not turn her head to the
direction of sounds or voices. When roused she made nonspecific
unintelligible sounds (“uhhh, ahhh”) loudly and
continuously but was generally silent when undisturbed.
12
Menace reflex (blinking in response to hand
movements in front of eyes) was present in both eyes and
hemifields but brisker and more consistent on the left.
Pupillary reaction was normal bilaterally. Fundi could not
be seen since she closed her eyes tightly when this was
attempted. At rest she seemed to maintain preferential gaze
to the left but otherwise gaze was random and undirected
(roving) though largely conjugate. Facial movements were
symmetric. Gag reflex (movement of the palate in response
to insertion of a tongue depressor in the throat) was present
and she does not pool saliva. She could swallow both
teaspoonfuls of water as well as a small quantity of mashed
banana. She licked though not very completely sugar
smeared on her lips, suggesting some tongue control.
She had flexion contractures of all limbs and seemed
to be incapable of turning in bed spontaneously. There was
what appeared to be minimal voluntary movement with the
left upper limb (touching her wrist to the eye for instance,
perhaps as an attempt to rub it). When examined/disturbed,
she seemed to curl up even further in her flexed foetal
position. Sensory examination was not possible but she did
seem to find passive movement painful in all four limbs
and moaned continuously during the examination. Deep
tendon reflexes were difficult to elicit elsewhere but were
present at the ankles. Plantars were withdrawal/extensor.
Thus neurologically she appears to be in a state of
intact consciousness without awareness of
self/environment. No cognitive or communication abilities
could be discerned. Visual function if present is severely
limited. Motor function is grossly impaired with
quadriparesis.
IIIc. Mental Status Examination
1. Consciousness, General Appearance, Attitude and Behavior :
Ms. Aruna Ramachandra Shanbaug was resting
quietly in her bed, apparently listening to the devotional
music, when we entered the room. Though, her body built
13
is lean, she appeared to be well nourished and there were
no signs of malnourishment. She appeared neat and clean.
She has developed contractures at both the wrist joints and
knee joints and so lied curled up in the bed with minimum
restricted physical movements.
She was conscious but appeared to be unaware of
herself and her surroundings. As soon as she realized the
presence of some people in her room, she started making
repetitive vocal sounds and moving her hands. This
behavior subsided as we left the room. She did not have
any involuntary movements. She did not demonstrate any
catatonic, hostile or violent behavior.
Her eyes were wide open and from her behavior it
appeared that she could see and hear us, as when one
loudly called her name, she stopped making vocal sounds
and hand movements for a while. She was unable to
maintain sustained eye-to eye contact but when the hand
was suddenly taken near her eyes, she was able to blink
well.
When an attempt was made to feed her by mouth,
she accepted a spoonful of water, some sugar and mashed
banana. She also licked the sugar and banana paste
sticking on her upper lips and swallowed it. Thus, at times
she could cooperate when fed.
2. Mood and affect :
It was difficult to assess her mood as she was unable
to communicate or express her feelings. She appeared to
calm down when she was touched or caressed gently. She
did not cry or laugh or expressed any other emotions
verbally or non-verbally during the examination period.
When not disturbed and observed quietly from a distance,
she did not appear to be in severe pain or misery. Only
when many people enter her room, she appears to get a bit
disturbed about it.
14
3. Speech and thoughts :
She could make repeated vocal sounds but she could
not utter or repeat any comprehensible words or follow and
respond to any of the simple commands (such as “show me
your tongue”). The only way she expressed herself was by
making some sounds. She appeared to have minimal
language comprehension or expression.
4. Perception :
She did not appear to be having any perceptual
abnormality like hallucinations or illusions from her
behavior.
5. Orientation, memory and intellectual capacity :
Formal assessment of orientation in time, place and
person, memory of immediate, recent and remote events
and her intellectual capacity could not be carried out.
6. Insight :
As she does not appear to be fully aware of herself
and her surroundings, she is unlikely to have any insight
into her illness.
IV. Reports of Investigations
IVa. CT Scan Head (Plain)
This is contaminated by movement artefacts. It
shows generalized prominence of supratentorial sulci and
ventricles suggestive of generalized cerebral atrophy.
Brainstem and cerebellum seem normal. Ischemic foci are
seen in left centrum semi-ovale and right external capsule.
In addition a small left parieto-occipital cortical lesion is
also seen and is probably ischemic.
15
IVb. EEG
The dominant feature is a moderately rhythmic alpha
frequency at 8-10 Hz and 20-70 microvolts which is
widely distributed and is equally prominent both anteriorly
and posteriorly. It is not responsive to eye-opening as seen
on the video. Beta at 18-25 Hz is also seen diffusely but
more prominently anteriorly. No focal or paroxysmal
abnormalities were noted
IVc. Blood
Reports of the hemoglobin, white cell count, liver
function tests, renal function tests, electrolytes, thyroid
function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels
are unremarkable. (Detailed report from KEM hospital
attached.)
V. Diagnostic impression
1) From the longitudinal case history and
examination it appears that Ms. Aruna Ramachandra
Shanbaug has developed non-progressive but irreversible
brain damage secondary to hypoxic-ischemic brain injury
consistent with the known effects of strangulation. Most
authorities consider a period exceeding 4 weeks in this
condition, especially when due to hypoxic-ischemic injury
as confirming irreversibility. In Ms. Aruna’s case, this
period has been as long as 37 years, making her perhaps
the longest survivor in this situation.
2) She meets most of the criteria for being in a
permanent vegetative state (PVS). PVS is defined as a
clinical condition of unawareness (Table 1) of self and
environment in which the patient breathes spontaneously,
has a stable circulation and shows cycles of eye closure
and opening which may simulate sleep and waking (Table
2). While she has evidence of intact auditory, visual,
somatic and motor primary neural pathways, no definitive
evidence for awareness of auditory, visual, somatic and
motor stimuli was observed during our examinations.
16
VI. Prognosis
Her dementia has not progressed and has remained
stable for last many years and it is likely to remain same
over next many years. At present there is no treatment
available for the brain damage she has sustained.
VII. Appendix
VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS
(Wade DT, Johnston C. British Med
Journal 1999; 319:841-844) DOMAIN
OBSERVED
STIMULUS RESPONSE
AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements
Meaningful noise (rattled steel tumbler and spoon, film songs
of 1970s)
Non-specific head and body movements
Spoken commands (“close your eyes”, “lift left hand “: in
English, Marathi and Konkani)
Unable to obey commands. No specific or reproducible
response
VISUAL AWARENESS Bright light to eyes Pupillary responses present
Large moving object in front of eyes (bright red torch
rattle)
Tracking movements: present but inconsistent and poorly
reproducible
Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right
Written command (English, Marathi: close your eyes) No response
SOMATIC AWARENESS Painful stimuli to limbs (light prick with
sharp end of tendon hammer)
Withdrawal, maximal in left upper limb
Painful stimuli to face Distress but no co-ordinated response to remove stimulus
Routine sensory stimuli during care (changing position in bed
and feeding)
Generalized non specific response presence but no coordinated
attempt to assist in process
MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal
directed – lifting left hand to left side of face,
apparently to rub her left eye.
Responsive Non-specific undirected without any goal directed activities.
Conclusion:
From the above examination, she has evidence of intact auditory, visual, somatic and
motor primary neural pathways. However no definitive evidence for awareness of
auditory, visual, somatic and motor stimuli was observed during our examinations.
VIIb. Table 2. Application of Criteria for Vegetative State
(Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):
S33-S38) Criteria
Examination findings : whether she meets Criteria
(Yes /No / Probably)
Unaware of self and environment Yes, Unaware
No interaction with others Yes, no interaction
No sustained, reproducible or purposeful voluntary
behavioural response to visual, auditory, tactile or
noxious stimuli
Yes, no sustained, reproducible or purposeful
behavioural response, but :
1. Resisted examination of fundus
2. Licked sugar off lips
No language comprehension or expression Yes, no comprehension
No blink to visual threat Blinks, but more consistent on left than right
17
Present sleep wake cycles Yes (according to nurses)
Preserved autonomic and hypothalamic functioYn es
Preserved cranial nerve reflexes Yes
Bowel and bladder incontinence Yes
VIII. References
1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N Engl
J Med 1994; 330: 1499-508
2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis and
management. Brit Med J 1999; 319:841–4
3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and
diagnostic criteria. Neurology 2002;58:349–353
4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology
2010;75;S33”
8. On 18th February, 2011, we then passed the following
order :
“In the above case Dr. J.V. Divatia on
17.02.2011 handed over the report of the
team of three doctors whom we had appointed
by our order dated 24th January, 2011. He has
also handed over a CD in this connection.
Let the report as well as the CD form part
of the record.
On mentioning, the case has been
adjourned to be listed on 2nd March, 2011 at
the request of learned Attorney General of
India, Mr. T.R. Andhyarujina, learned Senior
Advocate, whom we have appointed as amicus
curiae in the case as well as Mr. Shekhar
Naphade, learned Senior Advocate for the
petitioner.
We request the doctors whom we had
appointed viz., Dr. J.V. Divatia, Dr. Roop
Gurshani and Dr. Nilesh Shah to appear
before us on 2nd March, 2011 at 10.30 A.M. in
the Court, since it is quite possible that
we may like to ask them questions about the
18
report which they have submitted, and in
general about their views in connection with
euthanasia.
On perusal of the report of the
committee of doctors to us we have noted
that there are many technical terms which
have been used therein which a non-medical
man would find it difficult to understand.
We, therefore, request the doctors to submit
a supplementary report by the next date of
hearing (by e-mailing copy of the same two
days before the next date of hearing) in
which the meaning of these technical terms
in the report is also explained.
The Central Government is directed to
arrange for the air travel expenses of all
the three doctors as well as their stay in a
suitable accommodation at Delhi and also to
provide them necessary conveyance and other
facilities they require, so that they can
appear before us on 02.03.2011.
An honorarium may also be given to the
doctors, if they so desire, which may be
arranged mutually with the learned Attorney
General.
The Dean of King Edward Memorial
Hospital as well as Ms. Pinky Virani (who
claims to be the next friend of the
petitioner) are directed to intimate the
brother(s)/sister(s) or other close
relatives of the petitioner that the case
will be listed on 2nd March, 2011 in the
Supreme Court and they can put forward their
views before the Court, if they so desire.
Learned counsel for the petitioner and the
Registry of this Court shall communicate a
copy of this Order forthwith to the Dean,
KEM Hospital. The Dean, KEM Hospital is
requested to file an affidavit stating his
19
views regarding the prayer in this writ
petition, and also the condition of the
petitioner.
Copy of this Order shall be given
forthwith to learned Attorney General of
India, Mr. Shekhar Naphade and Mr.
Andhyarujina, learned Senior Advocates.
Let the matter be listed as the first
item on 2nd March, 2011”.
9. On 2.3.2011, the matter was listed again before
us and we first saw the screening of the CD
submitted by the team of doctors along with their
report. We had arranged for the screening of the CD
in the Courtroom, so that all present in Court could
see the condition of Aruna Shanbaug. For doing so,
we have relied on the precedent of the Nuremburg
trials in which a screening was done in the
Courtroom of some of the Nazi atrocities during the
Second World War. We have heard learned counsel for
the parties in great detail. The three doctors
nominated by us are also present in Court. As
requested by us, the doctors team submitted a
supplementary report before us which states :
Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug
20
Jointly prepared and signed by
1. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical Care
and Pain, at Tata Memorial Hospital, Mumbai)
2. Dr. Roop Gursahani
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
3. Dr. Nilesh Shah
(Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital).
Mumbai
February 26, 2011
INDEX
Introduction 3
Terminology 4
Glossary of Technical terms 7
Opinion 11 3
Introduction
This document is a supplement to the Report of Examination of
Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011.
On perusal of the report, the Hon. Court observed that there
were many technical terms which a non-medical man would find it
difficult to understand, and requested us to submit a
supplementary report in which the meaning of these technical
terms in the report is also explained.
We have therefore prepared this Supplement to include a
glossary of technical terms used in the earlier Report, and
also to clarify some of the terminology related to brain
damage. Finally, we have given our opinion in the case of Aruna
Shanbaug.
Terminology
The words coma, brain death and vegetative state are often used
in common language to describe severe brain damage. However, in
medical terminology, these terms have specific meaning and
significance.
Brain death
21
A state of prolonged irreversible cessation of all brain
activity, including lower brain stem function with the complete
absence of voluntary movements, responses to stimuli, brain
stem reflexes, and spontaneous respirations.
Explanation: This is the most severe form of brain damage. The
patient is unconscious, completely unresponsive, has no reflex
activity from centres in the brain, and has no breathing
efforts on his own. However the heart is beating. This patient
can only be maintained alive by advanced life support
(breathing machine or ventilator, drugs to maintain blood
pressure, etc). These patients can be legally declared dead
(‘brain dead’) to allow their organs to be taken for donation.
Aruna Shanbaug is clearly not brain dead.
Coma
Patients in coma have complete failure of the arousal system
with no spontaneous eye opening and are unable to be awakened
by application of vigorous sensory stimulation.
Explanation: These patients are unconscious. They cannot be
awakened even by application of a painful stimulus. They have
normal heart beat and breathing, and do not require advanced
life support to preserve life.
Aruna Shanbaug is clearly not in Coma.
Vegetative State (VS)
The complete absence of behavioral evidence for self or
environmental awareness. There is preserved capacity for
spontaneous or stimulus-induced arousal, evidenced by sleep–
wake cycles. .i.e. patients are awake, but have no awareness.
Explanation: Patients appear awake. They have normal heart beat
and breathing, and do not require advanced life support to
preserve life. They cannot produce a purposeful, co-ordinated,
voluntary response in a sustained manner, although they may
have primitive reflexive responses to light, sound, touch or
pain. They cannot understand, communicate, speak, or have
emotions. They are unaware of self and environment and have no
interaction with others. They cannot voluntarily control
passing of urine or stools. They sleep and awaken. As the
centres in the brain controlling the heart and breathing are
intact, there is no threat to life, and patients can survive
for many years with expert nursing care. The following
behaviours may be seen in the vegetative state :
22
Sleep-wake cycles with eyes closed, then open
Patient breathes on her own
Spontaneous blinking and roving eye movements
Produce sounds but no words
Brief, unsustained visual pursuit (following an object with her
eyes)
Grimacing to pain, changing facial expressions
Yawning; chewing jaw movements
Swallowing of her own spit
Nonpurposeful limb movements; arching of back
Reflex withdrawal from painful stimuli
Brief movements of head or eyes toward sound or movement
without apparent localization or fixation
Startles with a loud sound
Almost all of these features consistent with the diagnosis of
permanent vegetative state were present during the medical
examination of Aruna Shanbaug.
Minimally Conscious State
Some patients with severe alteration in consciousness have
neurologic findings that do not meet criteria for VS. These
patients demonstrate some behavioral evidence of conscious
awareness but remain unable to reproduce this behavior
consistently. This condition is referred to here as the
minimally conscious state (MCS). MCS is distinguished from VS
by the partial preservation of conscious awareness.
To make the diagnosis of MCS, limited but clearly discernible
evidence of self or environmental awareness must be
demonstrated on a reproducible or sustained basis by one or
more of the following behaviors:
• Following simple commands.
• Gestural or verbal yes/no responses (regardless of accuracy).
• Intelligible sounds
• Purposeful behavior, including movements or emotional
behaviors (smiling, crying) that occur in relation to relevant
environmental stimuli and are not due to reflexive activity.
Some examples of qualifying purposeful behavior include:
– appropriate smiling or crying in response to the linguistic
23
or visual content of emotional but not to neutral topics or
stimuli
– vocalizations or gestures that occur in direct response to
the linguistic content of questions
– reaching for objects that demonstrates a clear relationship
between object location and direction of reach
– touching or holding objects in a manner that accommodates the
size and shape of the object
– pursuit eye movement or sustained fixation that occurs in
direct response to moving or salient stimuli
None of the above behaviours suggestive of a Minimally
Conscious State were observed during the examination of Aruna
Shanbaug.
GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT
(In Alphabetical order) Term in text Meaning
Affect Feeling conveyed though
expressions and behavior
Afebrile No fever
Auditory Related to hearing
Bedsore A painful wound on the body
caused by having to lie in bed
for a long time
Bilaterally On both sides (right and left)
Bruise An injury or mark where the
skin has not been broken but
is darker in colour, often as
a result of being hit by
something
Catatonic Describes someone who is stiff
and not moving or reacting, as
if dead
Cerebral atrophy Shrinking of the globe
(cortex) of the brain
Clubbing Bulging or prominence of the
nailbed, making base of the
nails look thick. This is
often due to longstanding
infection inside the lungs.
Cognitive Related to ability to
understand and process
information in the brain
Conjugate Synchronised movement (of the
eyeball)
24
Conscious Awake with eyes open. By
itself the term conscious does
not convey any information
about awareness of self and
surroundings, or the ability
to understand, communicate,
have emotions, etc.
Contractures Muscles or tendons that have
become shortened and taut over
a period of time. This causes
deformity and restriction of
movements.
CT Scan A specialized X-ray test where
images of the brain (or other
part of the body) are obtained
in cross-section at different
levels. This allows clear
visualization of different
parts of the brain
Cyanosis Bluish discoloration of the nails, lips or skin.
It may be due to low levels of oxygen in the
blood
Deep tendon reflexes Reflex response of the fleshy part of certain
muscles when its tendon is hit lightly with an
examination hammer
Dementia Disorder in which there is a cognitive defect,
i.e. the patient is unable to understand and
process information in the brain
Electroencephalography, (EEG) Recording of the electrical activity of the
brain
Febrile illness Illness with fever
Fracture A crack or a break in bones
Fundi Plural of fundus. Fundus of the eye is the
interior surface of the eye, opposite the lens.
It is examined with an instrument called the
ophthalmoscope
Gag reflex Movement of the palate in response to
insertion of a tongue depressor in the throat
Hallucinations Perception in the absence of stimuli. (e.g.
hearing voices which are not there or which
are inaudible to others)
Hemifields Right or left part of the field of vision
Hypoxic Related to reduced oxygen levels in the
blood
Icterus Yellowish discoloration of the skin and
eyeballs. This is commonly known as
jaundice, and may be caused by liver disease
Illusions Misperception of stimuli (seeing a rope as a
snake)
Immediate memory Memory of events which have occurred just
a few minutes ago
25
Insight Person’s understanding of his or her own
illness
Intellectual capacity Ability to solve problems. The ability to
learn, understand and make judgments or
have opinions that are based on reason
Involuntary movements Automatic movements over which patient
has no control
Ischemic Related to restriction or cutting off of the
blood flow to any part of the body
Malnourishment Weak and in bad health because of having
too little food or too little of the types of
food necessary for good health
Menace reflex Blinking in response to hand movements in
front of eyes
Mood The way one feels at a particular time
Motor Related to movement
Movement artefacts Disturbance in the image seen in the CT scan
due to patient movement
Oral feed Food given through mouth
Orientation Awareness about the time, place and person
Pallor Pale appearance of the skin. Usually this is
due to a low red blood cell count or low
haemoglobin level in the blood.
Passive movement Movement of a limb or part of the body done
by the doctor without any effort by the
patient
Perception Sensory experiences (such as seeing, hearing
etc.)
Perceptual abnormalities Abnormal sensory experiences, e.g, seeing
things that do not exist, hearing sounds when
there are none
Plantars Reflex response of the toes when a sharp
painful stimulus is applied to the sole of the
foot. The normal response is curling
downwards of the toes.
Plantars were withdrawal/extensor When a painful stimulus was applied to the
sole of the foot the toes spread out and there
was reflex movement of the leg (withdrawal)
or upward curling of the great toe and other
toes (extensor). This is an abnormal response
indicating damage in the pathway in the
brain or to the area in the brain controlling
function of the legs.
Primary neural pathways Course of the nerves from a part of the body
to the area in the brain responsible for the
function of that part
Pupillary reaction The pupillary light reflex controls the
diameter of the pupil, in response to the
intensity of light. Greater intensity light
26
causes the pupil to become smaller (allowing
less light in), whereas
Opinion
In our view, the issues in this case (and other similar cases) are:
1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal
of life sustaining therapies (many authorities would include placement of an artificial feeding
tube as a life sustaining intervention) be permissible or ‘not unlawful’ ?
2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of
futile care or a PVS, should his / her wishes be respected when the situation arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin makes
a request to withhold or withdraw futile life-sustaining treatments, should their wishes be
respected?
4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37
years by the staff of KEM Hospital. Who should take decisions on her behalf?
Questions such as these come up at times in the course of medical practice. We realize that
answers to these questions are difficult, and involve several ethical, legal and social issues. Our
opinion is based on medical facts and on the principles of medical ethics. We hope that the
Honourable Court will provide guidance and clarity in this matter.
Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.
1. Autonomy means the right to self-determination, where the informed patient has a right to
choose the manner of his treatment. To be autonomous the patient should be competent to
make decisions and choices. In the event that he is incompetent to make choices, his wishes
expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his
behalf ('substituted judgment') are to be respected.
The surrogate is expected to represent what the patient may have decided had he / she been
competent, or to act in the patient’s best interest. It is expected that a surrogate acting in the
patient’s best interest follows a course of action because it is best for the patient, and is not
influenced by personal convictions, motives or other considerations.
2. Beneficence is acting in what is (or judged to be) in patient's best interest. Acting in the
patient’s best interest means following a course of action that is best for the patient, and is not
influenced by personal convictions, motives or other considerations. In some cases, the doctor’s
expanded goals may include allowing the natural dying process (neither hastening nor delaying
death, but ‘letting nature take its course’), thus avoiding or reducing the sufferings of the
patient and his family, and providing emotional support. This is not to be confused with
euthanasia, which involves the doctor's deliberate and intentional act through administering a
lethal injection to end the life of the patient.
27
In the present case under consideration
1. We have no indication of Aruna Shanbaug’s views or wishes with respect to life-sustaining
treatments for a permanent vegetative state.
2. Any decision regarding her treatment will have to be taken by a surrogate
3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned by
her family. We believe that the Dean of the KEM Hospital (representing the staff of hospital) is
an appropriate surrogate.
4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in
the best interest of the patient, feel that life sustaining treatments should continue, their
decision should be respected.
5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in
the best interest of the patient, feel that withholding or withdrawing life-sustaining treatments is
the appropriate course of action, they should be allowed to do so, and their actions should not
be considered unlawful.
10. To complete the narration of facts and before
we come to the legal issues involved, we may mention
that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has
issued a statement on 24.1.2011 opposing euthanasia
for the petitioner :-
“She means a lot to KEM hospital. She
is on liquid diet and loves listening to
music. We have never subjected her to
intravenous food or fed her via a tube. All
these years, she hasn’t had even one
bedsore. When those looking after her do not
have a problem, I don’t understand why a
third party who has nothing to do with her
[Pinky Virani who has moved the apex court
to seek euthanasia for Shanbaug] needs to
worry,” added Dr Oak, who, when he took over
as dean of KEM hospital in 2008, visited her
28
first to take her blessings. “I call on her
whenever I get time. I am there whenever she
has dysentery or any another problem. She is
very much alive and we have faith in the
judiciary,” said Dr Oak.”
11. Dr. Sanjay Oak has subsequently filed an
affidavit in this Court which states :
“a) Smt. Aruna Ramchandra Shanbaug has
been admitted in a single room in Ward No.4
which is a ward of general internal medicine
patients and she has been there for last 37
years. She is looked after entirely by
doctors, nurses and para-medical staff of
KEM Hospital. She has been our staff nurse
and the unfortunate tragic incidence has
happened with her in KEM Hospital and I must
put on record that the entire medical,
administrative, nursing and para-medical
staff is extremely attached to her and
consider her as one of us. Her relatives
and a gentleman (her fiancee) used to visit
her in the initial period of her illness but
subsequently she has been left to the care
of KEM staff. I visit her frequently and my
last visit to her was on 22nd February, 2011.
I give my observations as a Clinician about
Smt. Aruna Shanbaug as under :
b) It would be incorrect to say that
Smt. Aruna Shanbaug is an appropriate case
for Coma. It appears that for a crucial,
critical period her brain was deprived of
Oxygen supply and this has resulted in her
present state similar to that of Cerebral
Palsy in the newborn child. It is a
condition where brain looses it’s coordinatory,
sensory as well as motor
functions and this includes loss of speech
29
and perception. This has resulted into a
state which in a layman’s words “Aruna lives
in her own world for last 37 years”. She is
lying in a bed in a single room for 33
years. She has not been able to stand or
walk, nor have we attempted to do that of
late because we fear that she is fragile and
would break her bones if she falls. Her
extremities and fingers have developed
contractures and subsequent to non-use;
there is wasting of her body muscles. Her
eyes are open and she blinks frequently;
however, these movements are not pertaining
to a specific purpose or as a response to a
question. At times she is quiet and at
times she shouts or shrieks. However, I
must say that her shouts and shrieks are
completely oblivious to anybody’s presence
in her room. It is not true that she shouts
after seeing a man. I do not think Aruna
can distinguish between a man and a woman,
nor can she even distinguish between
ordinate and inordinate object. We play
devotional songs rendered by Sadguru
Wamanrao Pai continuously in her room and
she lies down on her bed listening to them.
She expresses her displeasure by grimaces
and shouts if the tape recorder is switched
off. All these years she was never fed by
tube and whenever a nurse used to take food
to her lips, she used to swallow it. It is
only since September 2010 she developed
Malaria and her oral intake dropped. In
order to take care of her calorie make need,
nurses cadre resorted to naso-gastric tube
feed and now she is used to NG feeding.
However, if small morsels are held near her
lips, Aruna accepts them gladly. It appears
that she relishes fish and occasionally
smiles when she is given non-vegetarian
food. However, I am honest in admitting
that her smiles are not purposeful and it
would be improper to interpret them as a
30
signal of gratification. I must put on
record that in the world history of medicine
there would not be another single case where
such a person is cared and nurtured in bed
for 33 long years and has not developed a
single bed sore. This speaks of volumes of
excellence of nursing care that KEM Nursing
staff has given to her.
c) This care is given not as a part of
duty but as a part of feeling of oneness.
With every new batch of entrants, the
student nurses are introduced to her and
they are told that she was one of us and she
continues to be one of us and then they
whole-heartedly take care of Aruna. In my
opinion, this one is finest example of love,
professionalism, dedication and commitment
to one of our professional colleagues who is
ailing and cannot support herself. Not
once, in this long sojourn of 33 years,
anybody has thought of putting an end to her
so called vegetative existence. There have
been several Deans and Doctors of KEM
Hospital who have cared her in succession.
Right from illustrious Dr. C.K. Deshpande in
whose tenure the incidence happened in 1973,
Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai,
Dr. R.J. Shirahatti, Dr. Smt. N.A.
Kshirsagar, Dr. M.E. Yeolekar and now myself
Dr. Sanjay N. Oak, all of us have visited
her room time and again and have cared for
her and seen her through her ups and downs.
The very idea of withholding food or putting
her to sleep by active medication (mercy
killing) is extremely difficult for anybody
working in Seth GSMC & KEM Hospital to
accept and I sincerely make a plea to the
Learned Counsel and Hon’ble Judges of
Supreme Court of India that this should not
be allowed. Aruna has probably crossed 60
years of life and would one day meet her
31
natural end. The Doctors, Nurses and staff
of KEM, are determined to take care of her
till her last breath by natural process.
d) I do not think it is proper on my
part to make a comment on the entire case.
However, as a clinical surgeon for last 3
decades and as an administrator of the
hospitals for last 7 years and as a student
of legal system of India (as I hold
“Bachelor of Law” degree from Mumbai
University), I feel that entire society has
not matured enough to accept the execution
of an Act of Euthanasia or Mercy Killing. I
fear that this may get misused and our
monitoring and deterring mechanisms may fail
to prevent those unfortunate incidences. To
me any mature society is best judged by it’s
capacity and commitment to take care of it’s
“invalid” ones. They are the children of
Lesser God and in fact, developing nation as
we are, we should move in a positive manner
of taking care of several unfortunate ones
who have deficiencies, disabilities and
deformities.”
12. The Hospital staff of KEM Hospital, Mumbai e.g.
the doctors, sister-in-charge ward no. 4 KEM
hospital Lenny Cornielo, Assistant Matron Urmila
Chauhan and others have also issued statements that
they were looking after Aruna Shanbaug and want her
to live. “Aruna is the bond that unites us”, the KEM
Hospital staff has stated. One retired nurse, Tidi
Makwana, who used to take care of Aruna while in
32
service, has even offered to continue to take care
of her without any salary and without charging any
traveling expenses.
13. We have referred to these statements because it
is evident that the KEM Hospital staff right from
the Dean, including the present Dean Dr. Sanjay Oak
and down to the staff nurses and para-medical staff
have been looking after Aruna for 38 years day and
night. What they have done is simply marvelous.
They feed Aruna, wash her, bathe her, cut her nails,
and generally take care of her, and they have been
doing this not on a few occasions but day and night,
year after year. The whole country must learn the
meaning of dedication and sacrifice from the KEM
hospital staff. In 38 years Aruna has not developed
one bed sore.
14. It is thus obvious that the KEM hospital staff
has developed an emotional bonding and attachment to
Aruna Shanbaug, and in a sense they are her real
family today. Ms. Pinki Virani who claims to be the
33
next friend of Aruna Shanbaug and has filed this
petition on her behalf is not a relative of Aruna
Shanbaug nor can she claim to have such close
emotional bonding with her as the KEM hospital
staff. Hence, we are treating the KEM hospital
staff as the next friend of Aruna Shanbaug and we
decline to recognize Ms. Pinki Virani as her next
friend. No doubt Ms. Pinki Virani has written a
book about Aruna Shanbaug and has visited her a few
times, and we have great respect for her for the
social causes she has espoused, but she cannot claim
to have the extent of attachment or bonding with
Aruna which the KEM hospital staff, which has been
looking after her for years, claims to have.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES
15. Mr. Shekhar Naphade, learned senior counsel for
the petitioner has relied on the decision of this
Court in Vikram Deo Singh Tomar vs. State of Bihar
1988 (Supp) SCC 734 (vide para 2) where it was
observed by this Court :
34
“We live in an age when this Court has
demonstrated, while interpreting Article 21
of the Constitution, that every person is
entitled to a quality of life consistent
with his human personality. The right to
live with human dignity is the fundamental
right of every Indian citizen”.
16. He has also relied on the decision of this Court
in P. Rathinam vs. Union of India and another (1994)
3 SCC 394 in which a two-Judge bench of this Court
quoted with approval a passage from an article by
Dr. M. Indira and Dr. Alka Dhal in which it was
mentioned :
“Life is not mere living but living in
health. Health is not the absence of
illness but a glowing vitality”.
17. The decision in Rathinam’s case (supra) was,
however, overruled by a Constitution Bench decision
of this Court in Gian Kaur vs. State of Punjab
(1996) 2 SCC 648.
18. Mr. Naphade, however, has invited our attention
to paras 24 & 25 of the aforesaid decision in which
35
it was observed :
“(24) Protagonism of euthanasia on the view that existence in
persistent vegetative state (PVS) is not a benefit to the patient of
a terminal illness being unrelated to the principle of 'sanctity of
life' or the right to live with dignity' is of no assistance to
determine the scope of Article 21 for deciding whether the
guarantee of right to life' therein includes the right to die'. The
right to life' including the right to live with human dignity would
mean the existence of such a right upto the end of natural life.
This also includes the right to a dignified life upto the point of
death including a dignified procedure of death. In other words,
this may include the right of a dying man to also die with dignity
when his life is ebbing out. But the 'right to die' with dignity at
the end of life is not to be confused or equated with the right to
die' an unnatural death curtailing the natural span of life.
(25) A question may arise, in the context of a dying man, who
is, terminally ill or in a persistent vegetative state that he may be
permitted to terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall within the
ambit of the 'right to die' with dignity as a part of right to live
with dignity, when death due to termination of natural life is
certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but only of
accelerating conclusion of the process of natural death which has
already commenced. The debate even in such cases to permit
physician assisted termination of life is inconclusive. It is
sufficient to reiterate that the argument to support the view of
permitting termination of life in such cases to reduce the period
of suffering during the process of certain natural death is not
available to interpret Article 21 to include therein the right to
curtail the natural span of life”.
36
He has particularly emphasized paragraph 25 of the
said judgment in support of his submission that
Aruna Shanbaug should be allowed to die.
19. We have carefully considered paragraphs 24 and
25 in Gian Kaur’s case (supra) and we are of the
opinion that all that has been said therein is that
the view in Rathinam’s case (supra) that the right
to life includes the right to die is not correct.
We cannot construe Gian Kaur’s case (supra) to mean
anything beyond that. In fact, it has been
specifically mentioned in paragraph 25 of the
aforesaid decision that “the debate even in such
cases to permit physician assisted termination of
life is inconclusive”. Thus it is obvious that no
final view was expressed in the decision in Gian
Kaur’s case beyond what we have mentioned above.
20. Mr. Naphade, learned senior counsel submitted
that Ms. Pinky Virani is the next friend of Aruna as
37
she has written a book on her life called ‘Aruna’s
story’ and has been following Aruna’s case from 1980
and has done whatever possible and within her means
to help Aruna. Mr. Naphade has also invited our
attention to the report of the Law Commission of
India, 2006 on ‘Medical Treatment to Terminally Ill
Patients’. We have perused the said report
carefully.
21. Learned Attorney General appearing for the Union
of India after inviting our attention to the
relevant case law submitted as under :
(i) Aruna Ramchandra Shanbaug has the right to
live in her present state.
(ii) The state that Aruna Ramchandra Shanbaug is
presently in does not justify terminating
her life by withdrawing
hydration/food/medical support.
(iii) The aforesaid acts or series of acts
and/or such omissions will be cruel, inhuman
and intolerable.
(iv) Withdrawing/withholding of
hydration/food/medical support to a patient
is unknown to Indian law and is contrary to
law.
(v) In case hydration or food is
38
withdrawn/withheld from Aruna Ramchandra
Shanbaug, the efforts which have been put in
by batches after batches of nurses of KEM
Hospital for the last 37 years will be
undermined.
(vi) Besides causing a deep sense of resentment
in the nursing staff as well as other well
wishers of Aruna Ramchandra Shanbaug in KEM
Hospital including the management, such
acts/omissions will lead to disheartenment
in them and large scale disillusionment.
(vii) In any event, these acts/omissions
cannot be permitted at the instance of Ms.
Pinky Virani who desires to be the next
friend of Aruna Ramchandra Shanbaug without
any locus.
Learned Attorney General stated that the report of
the Law Commission of India on euthanasia has not
been accepted by the Government of India. He
further submitted that Indian society is emotional
and care-oriented. We do not send our parents to
old age homes, as it happens in the West. He stated
that there was a great danger in permitting
euthanasia that the relatives of a person may
conspire with doctors and get him killed to inherit
his property. He further submitted that tomorrow
there may be a cure to a medical state perceived as
39
incurable today.
22. Mr. T. R. Andhyarujina, learned senior counsel
whom we had appointed as Amicus Curiae, in his
erudite submissions explained to us the law on the
point. He submitted that in general in common law
it is the right of every individual to have the
control of his own person free from all restraints
or interferences of others. Every human being of
adult years and sound mind has a right to determine
what shall be done with his own body. In the case
of medical treatment, for example, a surgeon who
performs an operation without the patient’s consent
commits assault or battery.
23. It follows as a corollary that the patient
possesses the right not to consent i.e. to refuse
treatment. (In the United States this right is
reinforced by a Constitutional right of privacy).
This is known as the principle of self-determination
or informed consent.
40
24. Mr. Andhyarujina submitted that the principle of
self-determination applies when a patient of sound
mind requires that life support should be
discontinued. The same principle applies where a
patient’s consent has been expressed at an earlier
date before he became unconscious or otherwise
incapable of communicating it as by a ‘living will’
or by giving written authority to doctors in
anticipation of his incompetent situation.
Mr. Andhyarujina differed from the view of the
learned Attorney General in that while the latter
opposed even passive euthanasia, Mr. Andhyarujina
was in favour of passive euthanasia provided the
decision to discontinue life support was taken by
responsible medical practitioners.
25. If the doctor acts on such consent there is no
question of the patient committing suicide or of the
doctor having aided or abetted him in doing so. It
is simply that the patient, as he is entitled to do,
declines to consent to treatment which might or
would have the effect of prolonging his life and the
41
doctor has in accordance with his duties complied
with the patient’s wishes.
26. The troublesome question is what happens when
the patient is in no condition to be able to say
whether or not he consents to discontinuance of the
treatment and has also given no prior indication of
his wishes with regard to it as in the case of
Aruna. In such a situation the patient being
incompetent to express his self-determination the
approach adopted in some of the American cases is of
“substituted judgment” or the judgment of a
surrogate. This involves a detailed inquiry into
the patient’s views and preferences. The surrogate
decision maker has to gather from material facts as
far as possible the decision which the incompetent
patient would have made if he was competent.
However, such a test is not favoured in English law
in relation to incompetent adults.
27. Absent any indication from a patient who is
incompetent the test which is adopted by Courts is
42
what is in the best interest of the patient whose
life is artificially prolonged by such life support.
This is not a question whether it is in the best
interest of the patient that he should die. The
question is whether it is in the best interest of
the patient that his life should be prolonged by the
continuance of the life support treatment. This
opinion must be formed by a responsible and
competent body of medical persons in charge of the
patient.
28. The withdrawal of life support by the doctors is
in law considered as an omission and not a positive
step to terminate the life. The latter would be
euthanasia, a criminal offence under the present law
in UK, USA and India.
29. In such a situation, generally the wishes of the
patient’s immediate family will be given due weight,
though their views cannot be determinative of the
carrying on of treatment as they cannot dictate to
responsible and competent doctors what is in the
43
best interest of the patient. However, experience
shows that in most cases the opinions of the doctors
and the immediate relatives coincide.
30. Whilst this Court has held that there is no
right to die (suicide) under Article 21 of the
Constitution and attempt to suicide is a crime vide
Section 309 IPC, the Court has held that the right
to life includes the right to live with human
dignity, and in the case of a dying person who is
terminally ill or in a permanent vegetative state he
may be permitted to terminate it by a premature
extinction of his life in these circumstances and it
is not a crime vide Gian Kaur’s case (supra).
31. Mr. Andhyarujina submitted that the decision to
withdraw the life support is taken in the best
interests of the patient by a body of medical
persons. It is not the function of the Court to
evaluate the situation and form an opinion on its
own. In England for historical reasons the parens
patriae jurisdiction over adult mentally
44
incompetent persons was abolished by statute and the
Court has no power now to give its consent. In this
situation, the Court only gives a declaration that
the proposed omission by doctors is not unlawful.
32. In U.K., the Mental Capacity Act, 2005 now makes
provision relating to persons who lack capacity and
to determine what is in their best interests and the
power to make declaration by a special Court of
Protection as to the lawfulness of any act done in
relation to a patient.
33. Mr. Andhyarujina submitted that the withdrawal
of nutrition by stopping essential food by means of
nasogastric tube is not the same as unplugging a
ventilator which artificially breathes air into the
lungs of a patient incapable of breathing resulting
in instant death. In case of discontinuance of
artificial feeding the patient will as a result
starve to death with all the sufferings and pain and
distress associated with such starving. This is a
very relevant consideration in a PVS patient like
45
Aruna who is not totally unconscious and has sensory
conditions of pain etc. unlike Antony Bland in
Airedale vs. Director MHD (1993) 2 WLR 316 who was
totally unconscious. Would the doctor be able to
avoid such pain or distress by use of sedatives
etc.? In such a condition would it not be more
appropriate to continue with the nasogastric feeding
but not take any other active steps to combat any
other illness which she may contract and which may
lead to her death?
34. Mr. Andhyarujina further submitted that in a
situation like that of Aruna, it is also necessary
to recognize the deep agony of nurses of the
hospital who have with deep care looked after her
for over 37 years and who may not appreciate the
withdrawal of the life support. It may be necessary
that their views should be considered by the Court
in some appropriate way.
35. Mr. Andhyarujina, in the course of his
submission stated that some Courts in USA have
46
observed that the view of a surrogate may be taken
to be the view of the incompetent patient for
deciding whether to withdraw the life support,
though the House of Lords in Airedale’s case has not
accepted this. He submitted that relatives of Aruna
do not seem to have cared for her and it is only the
nursing staff and medical attendants of KEM
hospital who have looked after her for 37 years. He
has also submitted that though the humanistic
intention of Ms. Pinky Virani cannot be doubted, it
is the opinion of the attending doctors and nursing
staff which is more relevant in this case as they
have looked after her for so many years.
36. Mr. Pallav Shishodia, learned senior counsel for
the Dean, KEM hospital, Mumbai submitted that Ms.
Pinky Virani has no locus standi in the matter and
it is only the KEM hospital staff which could have
filed such a writ petition.
37. We have also heard learned counsel for the State
of Maharashtra, Mr. Chinmoy Khaldkar and other
47
assisting counsel whose names have been mentioned in
this judgment. They have been of great assistance
to us as we are deciding a very sensitive and
delicate issue which while requiring a humanistic
approach, also requires great case and caution to
prevent misuse. We were informed that not only the
learned counsel who argued the case before us, but
also the assistants (whose names have been mentioned
in the judgment) have done research on the subject
for several weeks, and indeed this has made our task
easier in deciding this case. They therefore
deserve our compliment and thanks.
Legal Issues : Active and Passive Euthanasia
38. Coming now to the legal issues in this case, it
may be noted that euthanasia is of two types :
active and passive. Active euthanasia entails the
use of lethal substances or forces to kill a person
e.g. a lethal injection given to a person with
terminal cancer who is in terrible agony. Passive
euthanasia entails withholding of medical treatment
48
for continuance of life, e.g. withholding of
antibiotics where without giving it a patient is
likely to die, or removing the heart lung machine,
from a patient in coma.
39. The general legal position all over the world
seems to be that while active euthanasia is illegal
unless there is legislation permitting it, passive
euthanasia is legal even without legislation
provided certain conditions and safeguards are
maintained.
40. A further categorization of euthanasia is
between voluntary euthanasia and non voluntary
euthanasia. Voluntary euthanasia is where the
consent is taken from the patient, whereas non
voluntary euthanasia is where the consent is
unavailable e.g. when the patient is in coma, or is
otherwise unable to give consent. While there is no
legal difficulty in the case of the former, the
latter poses several problems, which we shall
address.
49
ACTIVE EUTHANASIA
41. As already stated above active euthanasia is a
crime all over the world except where permitted by
legislation. In India active euthanasia is illegal
and a crime under section 302 or at least section
304 IPC. Physician assisted suicide is a crime
under section 306 IPC (abetment to suicide).
42. Active euthanasia is taking specific steps to
cause the patient's death, such as injecting the
patient with some lethal substance, e.g. sodium
pentothal which causes a person deep sleep in a few
seconds, and the person instantaneously and
painlessly dies in this deep sleep.
43. A distinction is sometimes drawn between
euthanasia and physician assisted dying, the
difference being in who administers the lethal
medication. In euthanasia, a physician or third
party administers it, while in physician assisted
50
suicide it is the patient himself who does it,
though on the advice of the doctor. In many
countries/States the latter is legal while the
former is not.
44. The difference between "active" and "passive"
euthanasia is that in active euthanasia, something
is done to end the patient's life’ while in passive
euthanasia, something is not done that would have
preserved the patient's life.
45. An important idea behind this distinction is
that in "passive euthanasia" the doctors are not
actively killing anyone; they are simply not saving
him. While we usually applaud someone who saves
another person's life, we do not normally condemn
someone for failing to do so. If one rushes into a
burning building and carries someone out to safety,
he will probably be called a hero. But if one sees a
burning building and people screaming for help, and
he stands on the sidelines -- whether out of fear
for his own safety, or the belief that an
51
inexperienced and ill-equipped person like himself
would only get in the way of the professional
firefighters, or whatever -- if one does nothing,
few would judge him for his inaction. One would
surely not be prosecuted for homicide. (At least,
not unless one started the fire in the first place.)
46. Thus, proponents of euthanasia say that while we
can debate whether active euthanasia should be
legal, there can be no debate about passive
euthanasia: You cannot prosecute someone for failing
to save a life. Even if you think it would be good
for people to do X, you cannot make it illegal for
people to not do X, or everyone in the country who
did not do X today would have to be arrested.
47. Some persons are of the view that the
distinction is not valid. They give the example of
the old joke about the child who says to his
teacher, "Do you think it's right to punish someone
for something that he didn't do?" "Why, of course
not," the teacher replies. "Good," the child says,
52
"because I didn't do my homework."
48. In fact we have many laws that penalize people
for what they did not do. A person cannot simply
decide not to pay his income taxes, or not bother to
send his/her children to school (where the law
requires sending them), or not to obey a policeman's
order to put down one’s gun.
49. However, we are of the opinion that the
distinction is valid, as has been explained in some
details by Lord Goff in Airedale’s case (infra)
which we shall presently discuss.
LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA
OR PHYSICIAN ASSISTED DEATH
50. Although in the present case we are dealing with
a case related to passive euthanasia, it would be of
some interest to note the legislations in certain
countries permitting active euthanasia. These are
given below.
Netherlands:
53
Euthanasia in the Netherlands is regulated by
the "Termination of Life on Request and Assisted
Suicide (Review Procedures) Act", 2002. It
states that euthanasia and physician-assisted
suicide are not punishable if the attending
physician acts in accordance with the criteria
of due care. These criteria concern the
patient's request, the patient's suffering
(unbearable and hopeless), the information
provided to the patient, the presence of
reasonable alternatives, consultation of another
physician and the applied method of ending life.
To demonstrate their compliance, the Act
requires physicians to report euthanasia to a
review committee.
The legal debate concerning euthanasia in the
Netherlands took off with the "Postma case" in
1973, concerning a physician who had facilitated
the death of her mother following repeated
explicit requests for euthanasia. While the
physician was convicted, the court's judgment
set out criteria when a doctor would not be
54
required to keep a patient alive contrary to his
will. This set of criteria was formalized in the
course of a number of court cases during the
1980s.
Termination of Life on Request and Assisted
Suicide (Review Procedures) Act took effect on
April 1, 2002. It legalizes euthanasia and
physician assisted suicide in very specific
cases, under very specific circumstances. The
law was proposed by Els Borst, the minister of
Health. The procedures codified in the law had
been a convention of the Dutch medical community
for over twenty years.
The law allows a medical review board to suspend
prosecution of doctors who performed euthanasia
when each of the following conditions is
fulfilled:
· the patient's suffering is unbearable with no
prospect of improvement
· the patient's request for euthanasia must be
voluntary and persist over time (the request
55
cannot be granted when under the influence of
others, psychological illness, or drugs)
· the patient must be fully aware of his/her
condition, prospects and options
· there must be consultation with at least one
other independent doctor who needs to confirm
the conditions mentioned above
· the death must be carried out in a medically
appropriate fashion by the doctor or patient, in
which case the doctor must be present
· the patient is at least 12 years old (patients
between 12 and 16 years of age require the
consent of their parents)
The doctor must also report the cause of death
to the municipal coroner in accordance with the
relevant provisions of the Burial and Cremation
Act. A regional review committee assesses
whether a case of termination of life on request
or assisted suicide complies with the due care
criteria. Depending on its findings, the case
will either be closed or, if the conditions are
56
not met, brought to the attention of the Public
Prosecutor. Finally, the legislation offers an
explicit recognition of the validity of a
written declaration of the will of the patient
regarding euthanasia (a "euthanasia directive").
Such declarations can be used when a patient is
in a coma or otherwise unable to state if they
wish to be euthanized.
Euthanasia remains a criminal offense in cases
not meeting the law's specific conditions, with
the exception of several situations that are not
subject to the restrictions of the law at all,
because they are considered normal medical
practice. These are :
· stopping or not starting a medically useless
(futile) treatment
· stopping or not starting a treatment at the
patient's request
· speeding up death as a side-effect of treatment
necessary for alleviating serious suffering
Euthanasia of children under the age of 12
57
remains technically illegal; however, Dr. Eduard
Verhagen has documented several cases and,
together with colleagues and prosecutors, has
developed a protocol to be followed in those
cases. Prosecutors will refrain from pressing
charges if this Groningen Protocol is followed.
Switzerland:
Switzerland has an unusual position on assisted
suicide: it is legally permitted and can be
performed by non-physicians. However,
euthanasia is illegal, the difference between
assisted suicide and euthanasia being that while
in the former the patient administers the lethal
injection himself, in the latter a doctor or
some other person administers it.
Article 115 of the Swiss penal code, which came
into effect in 1942 (having been approved in
1937), considers assisting suicide a crime if,
and only if, the motive is selfish. The code
does not give physicians a special status in
58
assisting suicide; although, they are most
likely to have access to suitable drugs.
Ethical guidelines have cautioned physicians
against prescribing deadly drugs.
Switzerland seems to be the only country in
which the law limits the circumstances in which
assisted suicide is a crime, thereby
decriminalising it in other cases, without
requiring the involvement of a physician.
Consequently, non-physicians have participated
in assisted suicide. However, legally, active
euthanasia e.g. administering a lethal injection
by a doctor or some other person to a patient is
illegal in Switzerland (unlike in Holland where
it is legal under certain conditions).
The Swiss law is unique because (1) the
recipient need not be a Swiss national, and (2)
a physician need not be involved. Many persons
from other countries, especially Germany, go to
Switzerland to undergo euthanasia.
59
Belgium:
Belgium became the second country in Europe
after Netherlands to legalize the practice of
euthanasia in September 2002.
The Belgian law sets out conditions under which
suicide can be practised without giving doctors
a licence to kill.
Patients wishing to end their own lives must be
conscious when the demand is made and repeat
their request for euthanasia. They have to be
under "constant and unbearable physical or
psychological pain" resulting from an accident
or incurable illness.
The law gives patients the right to receive
ongoing treatment with painkillers -- the
authorities have to pay to ensure that poor or
isolated patients do not ask to die because they
do not have money for such treatment.
Unlike the Dutch legislation, minors cannot seek
assistance to die.
60
In the case of someone who is not in the
terminal stages of illness, a third medical
opinion must be sought.
Every mercy killing case will have to be filed
at a special commission to decide if the doctors
in charge are following the regulations.
U.K., Spain, Austria, Italy, Germany, France,
etc.
In none of these countries is euthanasia or
physician assisted death legal. In January 2011
the French Senate defeated by a 170-142 vote a
bill seeking to legalize euthanasia. In
England, in May 2006 a bill allowing physician
assisted suicide, was blocked, and never became
law.
United States of America:
Active Euthanasia is illegal in all states in
U.S.A., but physician assisted dying is legal in
61
the states of Oregon, Washington and Montana.
As already pointed out above, the difference
between euthanasia and physician assisted
suicide lies in who administers the lethal
medication. In the former, the physician or
someone else administers it, while in the latter
the patient himself does so, though on the
advice of the doctor.
Oregon:
Oregon was the first state in U.S.A. to legalize
physician assisted death.
The Oregon legislature enacted the Oregon Death
with Dignity Act, in 1997. Under the Death With
Dignity Act, a person who sought physicianassisted
suicide would have to meet certain
criteria:
· He must be an Oregon resident, at least 18 years
old, and must have decision making capacity.
· The person must be terminally ill, having six
months or less to live.
62
· The person must make one written and two oral
requests for medication to end his/her life, the
written one substantially in the form provided
in the Act, signed, dated, witnessed by two
persons in the presence of the patient who
attest that the person is capable, acting
voluntarily and not being coerced to sign the
request. There are stringent qualifications as
to who may act as a witness.
· The patient’s decision must be an ‘informed’
one, and the attending physician is obligated to
provide the patient with information about the
diagnosis, prognosis, potential risks, and
probable consequences of taking the prescribed
medication, and alternatives, including, but not
limited to comfort care, hospice care and pain
control. Another physician must confirm the
diagnosis, the patient’s decision making
capacity, and voluntariness of the patient’s
decisions.
· Counselling has to be provided if the patient is
63
suffering from depression or a mental disorder
which may impact his judgment.
· There has to be a waiting period of 15 days,
next of kin have to be notified, and State
authorities have to be informed.
· The patient can rescind his decision at any time
In response to concerns that patients with
depression may seek to end their lives, the 1999
amendment provides that the attending physician
must determine that the patient does not have
‘depression causing impaired judgment’ before
prescribing the medication.
Under the law, a person who met all requirements
could receive a prescription of a barbiturate
that would be sufficient to cause death.
However, the lethal injection must be
administered by the patient himself, and
physicians are prohibited from administering it.
The landmark case to declare that the practice
of euthanasia by doctors to help their patients
shall not be taken into cognizance was Gonzalez
64
vs Oregon decided in 2006.
After the Oregon Law was enacted about 200
persons have had euthanasia in Oregon.
Washington:
Washington was the second state in U.S.A. which
allowed the practice of physician assisted death
in the year 2008 by passing the Washington Death
with Dignity Act, 2008.
Montana:
Montana was the third state (after Oregon and
Washington) in U.S.A. to legalize physician
assisted deaths, but this was done by the State
judiciary and not the legislature. On December
31, 2009, the Montana Supreme Court delivered
its verdict in the case of Baxter v. Montana
permitting physicians to prescribe lethal
indication. The court held that there was
“nothing in Montana Supreme Court precedent or
Montana statutes indicating that physician aid
65
in dying is against public policy.”
Other States in U.S.A.:
In no other State in U.S.A. is euthanasia or
physician assisted death legal. Michigan banned
euthanasia and assisted suicide in 1993, after
Dr. Kevorkian (who became known as ‘doctor
death’) began encouraging and assisting in
suicides. He was convicted in 1999 for an
assisted suicide displayed on television, his
medical licence cancelled, and he spent 8 years
in jail.
In 1999 the State of Texas enacted the Texas
Futile Care Law which entitles Texas hospitals
and doctors, in some situations, to withdraw
life support measures, such as mechanical
respiration, from terminally ill patient when
such treatment is considered futile and
inappropriate. However, Texas has not legalized
euthanasia or physician assisted death. In
California, though 75 of people support
66
physician assisted death, the issue is highly
controversial in the State legislature. Forty
States in USA have enacted laws which explicitly
make it a crime to provide another with the
means of taking his or her life.
In 1977 California legalized living wills, and
other States soon followed suit. A living will
(also known as advance directive or advance
decision) is an instruction given by an
individual while conscious specifying what
action should be taken in the event he/she is
unable to make a decision due to illness or
incapacity, and appoints a person to take such
decisions on his/her behalf. It may include a
directive to withdraw life support on certain
eventualities.
Canada:
In Canada, physician assisted suicide is illegal
vide Section 241(b) of the Criminal Code of
67
Canada.
The leading decision of the Canadian Supreme
Court in this connection is Sue Rodriguez v.
British Columbia (Attorney General), (1993) 3
SCR 519. Rodriguez, a woman of 43, was
diagnosed with Amyotrophic Lateral Sclerosis
(ALS), and requested the Canadian Supreme Court
to allow someone to aid her in ending her life.
Her condition was deteriorating rapidly, and the
doctors told her that she would soon lose the
ability to swallow, speak, walk, and move her
body without assistance. Thereafter she would
lose her capacity to breathe without a
respirator, to eat without a gastrotomy, and
would eventually be confined to bed. Her life
expectancy was 2 to 14 months.
The Canadian Supreme Court was deeply divided.
By a 5 to 4 majority her plea was rejected.
Justice Sopinka, speaking for the majority
(which included Justices La Forest, Gonthier,
Iacobucci and Major) observed :
68
“Sanctity of life has been
understood historically as excluding
freedom of choice in the self
infliction of death, and certainly in
the involvement of others in carrying
out that choice. At the very least, no
new consensus has emerged in society
opposing the right of the State to
regulate the involvement of others in
exercising power over individuals
ending their lives.”
The minority, consisting of Chief Justice Lamer
and Justices L’Heureux-Dube, Cory and McLachlin,
dissented.
PASSIVE EUTHANASIA
51. Passive euthanasia is usually defined as
withdrawing medical treatment with a deliberate
intention of causing the patient’s death. For
example, if a patient requires kidney dialysis to
survive, not giving dialysis although the machine is
available, is passive euthanasia. Similarly, if a
patient is in coma or on a heart lung machine,
withdrawing of the machine will ordinarily result in
passive euthanasia. Similarly not giving life
saving medicines like antibiotics in certain
69
situations may result in passive euthanasia.
Denying food to a person in coma or PVS may also
amount to passive euthanasia.
52. As already stated above, euthanasia can be both
voluntary or non voluntary. In voluntary passive
euthanasia a person who is capable of deciding for
himself decides that he would prefer to die (which
may be for various reasons e.g., that he is in great
pain or that the money being spent on his treatment
should instead be given to his family who are in
greater need, etc.), and for this purpose he
consciously and of his own free will refuses to take
life saving medicines. In India, if a person
consciously and voluntarily refuses to take life
saving medical treatment it is not a crime. Whether
not taking food consciously and voluntarily with the
aim of ending one’s life is a crime under section
309 IPC (attempt to commit suicide) is a question
which need not be decided in this case.
53. Non voluntary passive euthanasia implies that
70
the person is not in a position to decide for
himself e.g., if he is in coma or PVS. The present
is a case where we have to consider non voluntary
passive euthanasia i.e. whether to allow a person to
die who is not in a position to give his/her
consent.
54. There is a plethora of case law on the subject
of the Courts all over the world relating to both
active and passive euthanasia. It is not necessary
to refer in detail to all the decisions of the
Courts in the world on the subject of euthanasia
or physically assisted dead (p.a.d.) but we think it
appropriate to refer in detail to certain landmark
decisions, which have laid down the law on the
subject.
THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993)
All E.R. 82) (H.L.)
55. In the Airedale case decided by the House of
Lords in the U.K., the facts were that one Anthony
Bland aged about 17 went to the Hillsborough Ground
71
on 15th April 1989 to support the Liverpool Football
Club. In the course of the disaster which occurred
on that day, his lungs were crushed and punctured
and the supply to his brain was interrupted. As a
result, he suffered catastrophic and irreversible
damage to the higher centres of the brain. For
three years, he was in a condition known as
‘persistent vegetative state (PVS). This state
arises from the destruction of the cerebral cortex
on account of prolonged deprivation of oxygen, and
the cerebral cortex of Anthony had resolved into a
watery mass. The cortex is that part of the brain
which is the seat of cognitive function and sensory
capacity. Anthony Bland could not see, hear or feel
anything. He could not communicate in any way. His
consciousness, which is an essential feature of an
individual personality, had departed forever.
However, his brain-stem, which controls the
reflective functions of the body, in particular the
heart beat, breathing and digestion, continued to
operate. He was in persistent vegetative state
(PVS) which is a recognized medical condition quite
72
distinct from other conditions sometimes known as
"irreversible coma", "the Guillain-Barre syndrome",
"the locked-in syndrome" and "brain death".
56. The distinguishing characteristic of PVS is that
the brain stem remains alive and functioning while
the cortex has lost its function and activity. Thus
the PVS patient continues to breathe unaided and his
digestion continues to function. But although his
eyes are open, he cannot see. He cannot hear.
Although capable of reflex movement, particularly in
response to painful stimuli, the patient is
uncapable of voluntary movement and can feel no
pain. He cannot taste or smell. He cannot speak or
communicate in any way. He has no cognitive
function and thus can feel no emotion, whether
pleasure or distress. The absence of cerebral
function is not a matter of surmise; it can be
scientifically demonstrated. The space which the
brain should occupy is full of watery fluid.
57. In order to maintain Mr. Bland in his condition,
73
feeding and hydration were achieved by artificial
means of a nasogastric tube while the excretory
functions were regulated by a catheter and enemas.
According to eminent medical opinion, there was no
prospect whatsoever that he would ever make a
recovery from his condition, but there was every
likelihood that he would maintain this state of
existence for many years to come provided the
artificial means of medical care was continued.
58. In this state of affairs the medical men in
charge of Anthony Bland case took the view, which
was supported by his parents, that no useful purpose
would be served by continuing medical care, and that
artificial feeding and other measures aimed at
prolonging his existence should be stopped. Since
however, there was a doubt as to whether this course
might constitute a criminal offence, the hospital
authorities sought a declaration from the British
High Court to resolve these doubts.
59. The declaration was granted by the Family
74
Division of the High Court on 19.11.1992 and that
judgment was affirmed by the Court of Appeal on
9.12.1992. A further appeal was made to the House
of Lords which then decided the case.
60. The broad issued raised before the House of
Lords in the Airedale case (supra) was “In what
circumstances, if ever, can those having a duty to
feed an invalid lawfully stop doing so?” In fact
this is precisely the question raised in the present
case of Aruna Shanbaug before us.
61. In Airedale’s case (supra), Lord Keith of
Kinkel, noted that it was unlawful to administer
treatment to an adult who is conscious and of sound
mind, without his consent. Such a person is
completely at liberty to decline to undergo
treatment, even if the result of his doing so will
be that he will die. This extends to the situation
where the person in anticipation of his entering
into a condition such as PVS, gives clear
instructions that in such an event he is not to be
75
given medical care, including artificial feeding,
designed to keep him alive.
62. It was held that if a person, due to accident or
some other cause becomes unconscious and is thus not
able to give or withhold consent to medical
treatment, in that situation it is lawful for
medical men to apply such treatment as in their
informed opinion is in the best interests of the
unconscious patient. That is what happened in the
case of Anthony Bland when he was first dealt with
by the emergency services and later taken to
hospital.
63. When the incident happened the first imperative
was to prevent Anthony from dying, as he would
certainly have done in the absence of the steps that
were taken. For a time, no doubt, there was some
hope that he might recover sufficiently for him to
be able to live a life that had some meaning. Some
patients who have suffered damage to the cerebral
cortex have, indeed, made a complete recovery. It
76
all depends on the degree of damage. But sound
medical opinion takes the view that if a P.V.S.
patient shows no signs of recovery after six months,
or at most a year, then there is no prospect
whatever of any recovery.
64. There are techniques available which make it
possible to ascertain the state of the cerebral
cortex, and in Anthony Bland's case these indicated
that, it had degenerated into a mass of watery
fluid. In this situation the question before the
House of Lords was whether the doctors could
withdraw medical treatment or feeding Anthony Bland
thus allowing him to die.
65. It was held by Lord Keith that a medical
practitioner is under no duty to continue to treat
such a patient where a large body of informed and
responsible medical opinion is to the effect that no
benefit at all would be conferred by continuance of
the treatment. Existence in a vegetative state with
no prospect of recovery is by that opinion regarded
77
as not being of benefit to the patient.
66. Given that existence in the persistent
vegetative state is of no benefit to the patient,
the House of Lords then considered whether the
principle of the sanctity of life which is the
concern of the State (and the Judiciary is one of
the arms of the State) required the Court to hold
that medical treatment to Bland could not be
discontinued.
67. Lord Keith observed that the principle of
sanctity of life is not an absolute one. For
instance, it does not compel the medical
practitioner on pain of criminal sanction to treat a
patient, who will die, if he does not, according to
the express wish of the patient. It does not
authorize forcible feeding of prisoners on hunger
strike. It does not compel the temporary keeping
alive of patients who are terminally ill where to do
so would merely prolong their suffering. On the
other hand, it forbids the taking of active measures
78
to cut short the life of a terminally-ill patient
(unless there is legislation which permits it).
68. Lord Keith observed that although the decision
whether or not the continued treatment and cure of a
PVS patient confers any benefit on him is
essentially one for the medical practitioners in
charge of his case to decide, as a matter of routine
the hospital/medical practitioner should apply to
the Family Division of the High Court for endorsing
or reversing the said decision. This is in the
interest of the protection of the patient,
protection of the doctors, and for the reassurance
of the patient’s family and the public.
69. In Airdale’s case (Supra) another Judge on the
Bench, Lord Goff of Chievely observed:-
“The central issue in the present case
has been aptly stated by the Master of
the Rolls to be whether artificial
feeding and antibiotic drugs may
lawfully be withheld from an insensate
patient with no hope of recovery when
it is known that if that is done the
patient will shortly thereafter die.
The Court of Appeal, like the
President, answered this question
generally in the affirmative, and (in
79
the declarations made or approved by
them) specifically also in the
affirmative in relation to Anthony
Bland . I find myself to be in
agreement with the conclusions so
reached by all the judges below,
substantially for the reasons given by
them. But the matter is of such
importance that I propose to express my
reasons in my own words.
I start with the simple fact that, in
law, Anthony is still alive. It is true
that his condition is such that it can
be described as a living death; but he
is nevertheless still alive. This is
because, as a result of developments in
modern medical technology, doctors no
longer associate death exclusively with
breathing and heart beat, and it has
come to be accepted that death occurs
when the brain, and in particular the
brain stem, has been destroyed (see
Professor Ian Kennedy's Paper entitled
"Switching off Life Support Machines:
The Legal Implications" reprinted in
Treat Me Right, Essays in Medical Law
and Ethics, (1988)), especially at pp.
351-2, and the material there cited).
There has been no dispute on this point
in the present case, and it is
unnecessary for me to consider it
further. The evidence is that Anthony's
brain stem is still alive and
functioning and it follows that, in the
present state of medical science, he is
still alive and should be so regarded
as a matter of law.
It is on this basis that I turn to the
applicable principles of law. Here, the
fundamental principle is the principle
of the sanctity of human life – a
80
principle long recognized not only in
our own society but also in most, if
not all, civilized societies throughout
the modern world, as is indeed
evidenced by its recognition both in
article 2 of the European Convention of
Human Rights, and in article 6 of the
International Covenant of Civil and
Political Rights.
But this principle, fundamental though
it is, is not absolute. Indeed there
are circumstances in which it is lawful
to take another man's life, for example
by a lawful act of self-defence, or (in
the days when capital punishment was
acceptable in our society) by lawful
execution. We are not however concerned
with cases such as these. We are
concerned with circumstances in which
it may be lawful to withhold from a
patient medical treatment or care by
means of which his life may be
prolonged. But here too there is no
absolute rule that the patient's life
must be prolonged by such treatment or
care, if available, regardless of the
circumstances.
First, it is established that the
principle of self-determination
requires that respect must be given to
the wishes of the patient, so that if
an adult patient of sound mind refuses,
however unreasonably, to consent to
treatment or care by which his life
would or might be prolonged, the
doctors responsible for his care must
give effect to his wishes, even though
they do not consider it to be in his
best interests to do so (see
Schloendorff v . Society of New York
Hospital 105 N.E. 92, 93, per Cardozo
81
J. (1914); S. v . McC. (Orse S.) and M
(D.S. Intervene); W v . W [1972] A.C.
24, 43, per Lord Reid; and Sidaway v .
Board of Governors of the Bethlem Royal
Hospital and the Maudsley Hospital
[1985] AC 871, 882, per Lord Scarman).
To this extent, the principle of the
sanctity of human life must yield to
the principle of self- determination
(see Court of Appeal Transcript in the
present case, at p. 38F per Hoffmann
L.J.), and, for present purposes
perhaps more important, the doctor's
duty to act in the best interests of
his patient must likewise be qualified.
On this basis, it has been held that a
patient of sound mind may, if properly
informed, require that life support
should be discontinued: see Nancy B.
v. Hotel Dieu de Quebec (1992) 86
D.L.R. (4th) 385. Moreover the same
principle applies where the patient's
refusal to give his consent has been
expressed at an earlier date, before he
became unconscious or otherwise
incapable of communicating it; though
in such circumstances especial care may
be necessary to ensure that the prior
refusal of consent is still properly to
be regarded as applicable in the
circumstances which have subsequently
occurred (see, e.g. In re T. (Adult:
Refusal of treatment) [1992] 3 W.L.R.
782). I wish to add that, in cases of
this kind, there is no question of the
patient having committed suicide, nor
therefore of the doctor having aided or
abetted him in doing so. It is simply
that the patient has, as he is entitled
to do, declined to consent to treatment
which might or would have the effect of
prolonging his life, and the doctor
has, in accordance with his duty,
82
complied with his patient's wishes.
But in many cases not only may the
patient be in no condition to be able
to say whether or not he consents to
the relevant treatment or care, but
also he may have given no prior
indication of his wishes with regard to
it. In the case of a child who is a
ward of court, the court itself will
decide whether medical treatment should
be provided in the child's best
interests, taking into account medical
opinion. But the court cannot give its
consent on behalf of an adult patient
who is incapable of himself deciding
whether or not to consent to treatment.
I am of the opinion that there is
nevertheless no absolute obligation
upon the doctor who has the patient in
his care to prolong his life,
regardless of the circumstances.
Indeed, it would be most startling, and
could lead to the most adverse and
cruel effects upon the patient, if any
such absolute rule were held to exist.
It is scarcely consistent with the
primacy given to the principle of selfdetermination
in those cases in which
the patient of sound mind has declined
to give his consent, that the law
should provide no means of enabling
treatment to be withheld in appropriate
circumstances where the patient is in
no condition to indicate, if that was
his wish, that he did not consent to
it. The point was put forcibly in the
judgment of the Supreme Judicial Court
of Massachusetts in Superintendent of
Belchertown State School v. Saikewicz
(1977) 370 N.E. 2d. 417, 428, as
follows:
83
"To presume that the incompetent person
must always be subjected to what many
rational and intelligent persons may
decline is to downgrade the status of
the incompetent person by placing a
lesser value on his intrinsic human
worth and vitality."
I must however stress, at this point,
that the law draws a crucial
distinction between cases in which a
doctor decides not to provide, or to
continue to provide, for his patient
treatment or care which could or might
prolong his life, and those in which he
decides, for example by administering a
lethal drug, actively to bring his
patient's life to an end. As I have
already indicated, the former may be
lawful, either because the doctor is
giving effect to his patient's wishes
by withholding the treatment or care,
or even in certain circumstances in
which (on principles which I shall
describe) the patient is incapacitated
from stating whether or not he gives
his consent. But it is not lawful for a
doctor to administer a drug to his
patient to bring about his death, even
though that course is prompted by a
humanitarian desire to end his
suffering, however great that suffering
may be: see Reg. v. Cox (Unreported),
Ognall J., Winchester Crown Court, 18
September 1992. So to act is to cross
the Rubicon which runs between on the
one hand the care of the living patient
and on the other hand euthanasia -
actively causing his death to avoid or
to end his suffering. Euthanasia is not
lawful at common law. It is of course
well known that there are many
responsible members of our society who
84
believe that euthanasia should be made
lawful; but that result could, I
believe, only be achieved by
legislation which expresses the
democratic will that so fundamental a
change should be made in our law, and
can, if enacted, ensure that such
legalised killing can only be carried
out subject to appropriate supervision
and control. It is true that the
drawing of this distinction may lead to
a charge of hypocrisy; because it can
be asked why, if the doctor, by
discontinuing treatment, is entitled in
consequence to let his patient die, it
should not be lawful to put him out of
his misery straight away, in a more
humane manner, by a lethal injection,
rather than let him linger on in pain
until he dies. But the law does not
feel able to authorize euthanasia, even
in circumstances such as these; for
once euthanasia is recognized as lawful
in these circumstances, it is difficult
to see any logical basis for excluding
it in others.
At the heart of this distinction lies a
theoretical question. Why is it that
the doctor who gives his patient a
lethal injection which kills him
commits an unlawful act and indeed is
guilty of murder, whereas a doctor who,
by discontinuing life support, allows
his patient to die, may not act
unlawfully - and will not do so, if he
commits no breach of duty to his
patient? Professor Glanville Williams
has suggested (see his Textbook of
Criminal Law, 2nd ed., p. 282) that the
reason is that what the doctor does
when he switches off a life support
machine 'is in substance not an act but
85
an omission to struggle, and that 'the
omission is not a breach of duty by the
doctor because he is not obliged to
continue in a hopeless case'.
I agree that the doctor's conduct in
discontinuing life support can properly
be categorized as an omission. It is
true that it may be difficult to
describe what the doctor actually does
as an omission, for example where he
takes some positive step to bring the
life support to an end. But
discontinuation of life support is, for
present purposes, no different from not
initiating life support in the first
place. In each case, the doctor is
simply allowing his patient to die in
the sense that he is desisting from
taking a step which might, in certain
circumstances, prevent his patient from
dying as a result of his pre-existing
condition; and as a matter of general
principle an omission such as this will
not be unlawful unless it constitutes a
breach of duty to the patient. I also
agree that the doctor's conduct is to
be differentiated from that of, for
example, an interloper who maliciously
switches off a life support machine
because, although the interloper may
perform exactly the same act as the
doctor who discontinues life support,
his doing so constitutes interference
with the life-prolonging treatment then
being administered by the doctor.
Accordingly, whereas the doctor, in
discontinuing life support, is simply
allowing his patient to die of his preexisting
condition, the interloper is
actively intervening to stop the doctor
from prolonging the patient's life, and
such conduct cannot possibly be
86
categorised as an omission.
The distinction appears, therefore, to
be useful in the present context in
that it can be invoked to explain how
discontinuance of life support can be
differentiated from ending a patient's
life by a lethal injection. But in the
end the reason for that difference is
that, whereas the law considers that
discontinuance of life support may be
consistent with the doctor's duty to
care for his patient, it does not, for
reasons of policy, consider that it
forms any part of his duty to give his
patient a lethal injection to put him
out of his agony.
I return to the patient who, because
for example he is of unsound mind or
has been rendered unconscious by
accident or by illness, is incapable of
stating whether or not he consents to
treatment or care. In such
circumstances, it is now established
that a doctor may lawfully treat such a
patient if he acts in his best
interests, and indeed that, if the
patient is already in his care, he is
under a duty so to treat him: see In re
F [1990] 2 AC 1, in which the legal
principles governing treatment in such
circumstances were stated by this
House. For my part I can see no reason
why, as a matter of principle, a
decision by a doctor whether or not to
initiate, or to continue to provide,
treatment or care which could or might
have the effect of prolonging such a
patient's life, should not be governed
by the same fundamental principle. Of
course, in the great majority of cases,
the best interests of the patient are
87
likely to require that treatment of
this kind, if available, should be
given to a patient. But this may not
always be so. To take a simple example
given by Thomas J. in Re J.H.L.
(Unreported) (High Court of New
Zealand) 13 August 1992, at p. 35), to
whose judgment in that case I wish to
pay tribute, it cannot be right that a
doctor, who has under his care a
patient suffering painfully from
terminal cancer, should be under an
absolute obligation to perform upon him
major surgery to abate another
condition which, if unabated, would or
might shorten his life still further.
The doctor who is caring for such a
patient cannot, in my opinion, be under
an absolute obligation to prolong his
life by any means available to him,
regardless of the quality of the
patient's life. Common humanity
requires otherwise, as do medical
ethics and good medical practice
accepted in this country and overseas.
As I see it, the doctor's decision
whether or not to take any such step
must (subject to his patient's ability
to give or withhold his consent) be
made in the best interests of the
patient. It is this principle too
which, in my opinion, underlies the
established rule that a doctor may,
when caring for a patient who is, for
example, dying of cancer, lawfully
administer painkilling drugs despite
the fact that he knows that an
incidental effect of that application
will be to abbreviate the patient's
life. Such a decision may properly be
made as part of the care of the living
patient, in his best interests; and, on
this basis, the treatment will be
88
lawful. Moreover, where the doctor's
treatment of his patient is lawful, the
patient's death will be regarded in law
as exclusively caused by the injury or
disease to which his condition is
attributable.
It is of course the development of
modern medical technology, and in
particular the development of life
support systems, which has rendered
cases such as the present so much more
relevant than in the past. Even so,
where (for example) a patient is
brought into hospital in such a
condition that, without the benefit of
a life support system, he will not
continue to live, the decision has to
be made whether or not to give him that
benefit, if available. That decision
can only be made in the best interests
of the patient. No doubt, his best
interests will ordinarily require that
he should be placed on a life support
system as soon as necessary, if only to
make an accurate assessment of his
condition and a prognosis for the
future. But if he neither recovers
sufficiently to be taken off it nor
dies, the question will ultimately
arise whether he should be kept on it
indefinitely. As I see it, that
question (assuming the continued
availability of the system) can only be
answered by reference to the best
interests of the patient himself,
having regard to established medical
practice. Indeed, if the justification
for treating a patient who lacks the
capacity to consent lies in the fact
that the treatment is provided in his
best interests, it must follow that the
treatment may, and indeed ultimately
89
should, be discontinued where it is no
longer in his best interests to provide
it. The question which lies at the
heart of the present case is, as I see
it, whether on that principle the
doctors responsible for the treatment
and care of Anthony Bland can
justifiably discontinue the process of
artificial feeding upon which the
prolongation of his life depends.
It is crucial for the understanding of
this question that the question itself
should be correctly formulated. The
question is not whether the doctor
should take a course which will kill
his patient, or even take a course
which has the effect of accelerating
his death. The question is whether the
doctor should or should not continue to
provide his patient with medical
treatment or care which, if continued,
will prolong his patient's life. The
question is sometimes put in striking
or emotional terms, which can be
misleading. For example, in the case of
a life support system, it is sometimes
asked: Should a doctor be entitled to
switch it off, or to pull the plug? And
then it is asked: Can it be in the best
interests of the patient that a doctor
should be able to switch the life
support system off, when this will
inevitably result in the patient's
death? Such an approach has rightly
been criticised as misleading, for
example by Professor Ian Kennedy (in
his paper in Treat Me Right, Essays in
Medical Law and Ethics (1988), and by
Thomas J. in Re J.H.L. at pp. 21- 22.
This is because the question is not
whether it is in the best interests of
the patient that he should die. The
90
question is whether it is in the best
interests of the patient that his life
should be prolonged by the continuance
of this form of medical treatment or
care.
The correct formulation of the question
is of particular importance in a case
such as the present, where the patient
is totally unconscious and where there
is no hope whatsoever of any
amelioration of his condition. In
circumstances such as these, it may be
difficult to say that it is in his best
interests that the treatment should be
ended. But if the question is asked, as
in my opinion it should be, whether it
is in his best interests that treatment
which has the effect of artificially
prolonging his life should be
continued, that question can sensibly
be answered to the effect that it is
not in his best interests to do so.
(emphasis supplied)
70. In a Discussion Paper on Treatment of Patients
in Persistent Vegetative State issued in September
1992 by the Medical Ethics Committee of the British
Medical Association certain safeguards were
mentioned which
should be observed before constituting life support
for such patients:-
91
“(1) Every effort should be made at
rehabilitation for at least six months
after the injury; (2) The diagnosis of
irreversible PVS should not be
considered confirmed until at least
twelve months after the injury, with
the effect that any decision to
withhold life prolonging treatment will
be delayed for that period; (3) The
diagnosis should be agreed by two other
independent doctors; and (4) Generally,
the wishes of the patient's immediate
family will be given great weight.”
71. Lord Goff observed that discontinuance of
artificial feeding in such cases is not equivalent
to cutting a mountaineer’s rope, or severing the air
pipe of a deep sea diver. The true question is not
whether the doctor should take a course in which he
will actively kill his patient, but rather whether
he should continue to provide his patient with
medical treatment or care which, if continued, will
prolong his life.
72. Lord Browne-Wilkinson was of the view that
removing the nasogastric tube in the case of Anthony
Bland cannot be regarded as a positive act causing
the death. The tube itself, without the food being
92
supplied through it, does nothing. Its non removal
itself does not cause the death since by itself, it
does not sustain life. Hence removal of the tube
would not constitute the actus reus of murder,
since such an act would not cause the death.
73. Lord Mustill observed:-
“Threaded through the technical
arguments addressed to the House were
the strands of a much wider position,
that it is in the best interests of the
community at large that Anthony Bland’s
life should now end. The doctors have
done all they can. Nothing will be
gained by going on and much will be
lost. The distress of the family will
get steadily worse. The strain on the
devotion of a medical staff charged
with the care of a patient whose
condition will never improve, who may
live for years and who does not even
recognize that he is being cared for,
will continue to mount. The large
resources of skill, labour and money
now being devoted to Anthony Bland
might in the opinion of many be more
fruitfully employed in improving the
condition of other patients, who if
treated may have useful, healthy and
enjoyable lives for years to come.”
74. Thus all the Judges of the House of Lords in the
Airedale case (supra) were agreed that Anthony Bland
93
should be allowed to die.
75. Airedale (1993) decided by the House of Lords
has been followed in a number of cases in U.K., and
the law is now fairly well settled that in the case
of incompetent patients, if the doctors act on the
basis of informed medical opinion, and withdraw the
artificial life support system if it is in the
patient’s best interest, the said act cannot be
regarded as a crime.
76. The question, however, remains as to who is to
decide what is the patient’s best interest where he
is in a persistent vegetative state (PVS)? Most
decisions have held that the decision of the
parents, spouse, or other close relative, should
carry weight if it is an informed one, but it is not
decisive (several of these decisions have been
referred to in Chapter IV of the 196th Report of the
Law Commission of India on Medical Treatment to
Terminally ill Patients).
94
77. It is ultimately for the Court to decide, as
parens patriae, as to what is is in the best
interest of the patient, though the wishes of close
relatives and next friend, and opinion of medical
practitioners should be given due weight in coming
to its decision. As stated by Balcombe, J. in In Re
J ( A Minor Wardship : Medical Treatment) 1990(3)
All E.R. 930, the Court as representative of the
Sovereign as parens patriae will adopt the same
standard which a reasonable and responsible parent
would do.
78. The parens patriae (father of the country)
jurisdiction was the jurisdiction of the Crown,
which, as stated in Airedale, could be traced to the
13th Century. This principle laid down that as the
Sovereign it was the duty of the King to protect the
person and property of those who were unable to
protect themselves. The Court, as a wing of the
State, has inherited the parens patriae jurisdiction
which formerly belonged to the King.
U.S. decisions
95
79. The two most significant cases of the U.S.
Supreme Court that addressed the issue whether there
was a federal constitutional right to assisted
suicide arose from challenges to State laws banning
physician assisted suicide brought by terminally ill
patients and their physicians. These were Washington
vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs.
Quill 521 U.S. 793 (1997).
80. In Glucksberg’s case, the U.S. Supreme Court
held that the asserted right to assistance in
committing suicide is not a fundamental liberty
interest protected by the Due Process Clause of the
Fourteenth Amendment. The Court observed :
“The decision to commit suicide with
the assistance of another may be just
as personal and profound as the
decision to refuse unwanted medical
treatment, but it has never enjoyed
similar legal protection. Indeed the
two acts are widely and reasonably
regarded as quite distinct.”
81. The Court went on to conclude that the
Washington statute being challenged was rationally
96
related to five legitimate government interest :
protection of life, prevention of suicide,
protection of ethical integrity of the medical
profession, protection of vulnerable groups, and
protection against the “slippery slope” towards
euthanasia. The Court then noted that perhaps the
individual States were more suited to resolving or
at least addressing the myriad concerns raised by
both proponents and opponents of physician assisted
suicide. The Court observed :
“Throughout the Nation, Americans
are engaged in an earnest and profound
debate about the morality, legality and
practicality of physician assisted
suicide. Our holding permits this
debate to continue, as it should in a
democratic society.”
82. In Vacco’s case (supra) the U.S. Supreme Court
again recognized the distinction between refusing
life saving medical treatment and giving lethal
medication. The Court disagreed with the view of
the Second Circuit Federal Court that ending or
refusing lifesaving medical treatment is nothing
more nor less than assisted suicide. The Court held
that “the distinction between letting a patient die
and making that patient die is important, logical,
97
rational, and well established”. The Court held
that the State of New York could validly ban the
latter.
83. In Cruzan v. Director, MDH, 497 U.S.
261(1990) decided by the U.S. Supreme Court the
majority opinion was delivered by the Chief Justice
Rehnquist.
84. In that case, the petitioner Nancy Cruzan
sustained injuries in an automobile accident and lay
in a Missouri State hospital in what has been
referred to as a persistent vegetative state (PVS),
a condition in which a person exhibits motor
reflexes but evinces no indication of significant
cognitive function. The state of Missouri was
bearing the cost of her care. Her parents and coguardians
applied to the Court for permission to
withdraw her artificial feeding and hydration
equipment and allow her to die. While the trial
Court granted the prayer, the State Supreme Court of
Missouri reversed, holding that under a statute in
the State of Missouri it was necessary to prove by
98
clear and convincing evidence that the incompetent
person had wanted, while competent, withdrawal of
life support treatment in such an eventuality. The
only evidence led on that point was the alleged
statement of Nancy Cruzan to a housemate about a
year before the accident that she did not want life
as a ‘vegetable’. The State Supreme Court was of
the view that this did not amount to saying that
medical treatment or nutrition or hydration should
be withdrawn.
85. Chief Justice Rehnquist delivering the opinion
of the Court (in which Justices White, O'Connor,
Scalia, and Kennedy, joined) in his judgment first
noted the facts:-
“On the night of January 11, 1983,
Nancy Cruzan lost control of her car as
she traveled down Elm Road in Jasper
County, Missouri. The vehicle
overturned, and Cruzan was discovered
lying face down in a ditch without
detectable respiratory or cardiac
function. Paramedics were able to
restore her breathing and heartbeat at
the accident site, and she was
transported to a hospital in an
unconscious state. An attending
99
neurosurgeon diagnosed her as having
sustained probable cerebral contusions
compounded by significant anoxia (lack
of oxygen). The Missouri trial court in
this case found that permanent brain
damage generally results after 6
minutes in an anoxic state; it was
estimated that Cruzan was deprived of
oxygen from 12 to 14 minutes. She
remained in a coma for approximately
three weeks, and then progressed to an
unconscious state in which she was able
to orally ingest some nutrition. In
order to ease feeding and further the
recovery, surgeons implanted a
gastrostomy feeding and hydration tube
in Cruzan with the consent of her then
husband. Subsequent rehabilitative
efforts proved unavailing. She now lies
in a Missouri state hospital in what is
commonly referred to as a persistent
vegetative state: generally, a
condition in which a person exhibits
motor reflexes but evinces no
indications of significant cognitive
function. 1 The State of Missouri is
bearing the cost of her care. [497 U.S.
261, 267]
After it had become apparent that Nancy
Cruzan had virtually no chance of
regaining her mental faculties, her
parents asked hospital employees to
terminate the artificial nutrition and
hydration procedures. All agree that
such a [497 U.S. 261, 268] removal
would cause her death. The employees
refused to honor the request without
court approval. The parents then sought
and received authorization from the
state trial court for termination.”
10
86. While the trial Court allowed the petition the
State Supreme Court of Missouri reversed. The US
Supreme Court by majority affirmed the verdict of
the State Supreme Court
87. Chief Justice Rehnquist noted that in law even
touching of one person by another without consent
and without legal justification was a battery, and
hence illegal. The notion of bodily integrity has
been embodied in the requirement that informed
consent is generally required for medical treatment.
As observed by Justice Cardozo, while on the Court
of Appeals of New York “Every human being of adult
years and sound mind has a right to determine what
shall be done with his own body, and a surgeon who
performs an operation without his patient’s consent
commits an assault, for which he is liable in
damages.” vide Schloendorff vs. Society of New
York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93
(1914). Thus the informed consent doctrine has
become firmly entrenched in American Tort Law. The
logical corollary of the doctrine of informed
10
consent is that the patient generally possesses the
right not to consent, that is to refuse treatment.
88. The question, however, arises in cases where the
patient is unable to decide whether the treatment
should continue or not e.g. if he is in coma or PVS.
Who is to give consent to terminate the treatment in
such a case? The learned Chief Justice referred to
a large number of decisions of Courts in U.S.A. in
this connection, often taking diverse approaches.
89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen
Quinlan suffered severe brain damage as a result of
anoxia, and entered into PVS. Her father sought
judicial approval to disconnect her respirator. The
New Jersey Supreme Court granted the prayer, holding
that Karen had a right of privacy grounded in the
U.S. Constitution to terminate treatment. The Court
concluded that the way Karen’s right to privacy
could be exercised would be to allow her guardian
and family to decide whether she would exercise it
in the circumstances.
10
90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985),
however, the New Jersey Supreme Court, in a case of
an 84 year old incompetent nursing home resident who
had suffered irreversible mental and physical
ailments, contrary to its decision in Quinlan’s
case, decided to base its decision on the common law
right to self determination and informed consent.
This right can be exercised by a surrogate decision
maker when there was a clear evidence that the
incompetent person would have exercised it. Where
such evidence was lacking the Court held that an
individual’s right could still be invoked in certain
circumstances under objective ‘best interest’
standards. Where no trustworthy evidence existed
that the individual would have wanted to terminate
treatment, and a person’s suffering would make the
administration of life sustaining treatment
inhumane, a pure objective standard could be used to
terminate the treatment. If none of these
conditions obtained, it was best to err in favour of
preserving life.
10
91. What is important to note in Cruzan’s case
(supra) is that there was a statute of the State of
Missouri, unlike in Airedale’s case (where there was
none), which required clear and convincing evidence
that while the patient was competent she had desired
that if she becomes incompetent and in a PVS her
life support should be withdrawn.
92. In Cruzan’s case (supra) the learned Chief Justice
observed :
“Not all incompetent patients will
have loved ones available to serve as
surrogate decision makers. And even
where family members are present, there
will be, of course, some unfortunate
situations in which family members will
not act to protect a patient. A State
is entitled to guard against potential
abuses in such situations.”
93. The learned Chief Justice further observed :
“An erroneous decision not to
terminate results in maintenance of the
status quo; the possibility of
subsequent developments such as
advancements in medical science, the
discovery of new evidence regarding the
10
patient’s intent, changes in the law,
or simply the unexpected death of the
patient despite the administration of
life-sustaining treatment, at least
create the potential that a wrong
decision will eventually be corrected
or its impact mitigated. An erroneous
decision to withdraw life-sustaining
treatment, however, is not susceptible
of correction.”
94. No doubt Mr. Justice Brennan (with whom Justices
Marshall and Blackmun joined) wrote a powerful
dissenting opinion, but it is not necessary for us
to go into the question whether the view of the
learned Chief Justice or that of Justice Brennan, is
correct.
95. It may be clarified that foreign decisions have
only persuasive value in our country, and are not
binding authorities on our Courts. Hence we can
even prefer to follow the minority view, rather than
the majority view, of a foreign decision, or follow
an overruled foreign decision.
96. Cruzan’s case (supra) can be distinguished on
10
the simple ground that there was a statute in the
State of Missouri, whereas there was none in the
Airedale’s case nor in the present case before us.
We are, therefore, of the opinion that the
Airedale’s case (supra) is more apposite as a
precedent for us. No doubt foreign decisions are
not binding on us, but they certainly have
persuasive value.
LAW IN INDIA
97. In India abetment of suicide (Section 306 Indian
Penal Code) and attempt to suicide (Section 309 of
Indian Penal Code) are both criminal offences. This
is in contrast to many countries such as USA where
attempt to suicide is not a crime.
98. The Constitution Bench of the Indian Supreme
Court in Gian Kaur vs. State of Punjab, 1996(2)
SCC 648 held that both euthanasia and assisted
suicide are not lawful in India. That decision
overruled the earlier two Judge Bench decision of
the Supreme Court in P. Rathinam vs. Union of
10
India, 1994(3) SCC 394. The Court held that the
right to life under Article 21 of the Constitution
does not include the right to die (vide para 33).
In Gian Kaur’s case (supra) the Supreme Court
approved of the decision of the House of Lords in
Airedale’s case (supra), and observed that
euthanasia could be made lawful only by legislation.
99. Sections 306 and 309 IPC read as under :
“306. Abetment of suicide -If any
person commits suicide, whoever abets
the commission of such suicide, shall
be punished with imprisonment of either
description for a term which may extend
to ten years, and shall also be liable
to fine.
309.Attempt to commit suicide -
Whoever attempts to commit suicide
and does any act towards the commission
of such offence, shall be punished with
simple imprisonment for a term which
may extend to one year or with fine, or
with both.”
100.We are of the opinion that although Section 309
Indian Penal Code (attempt to commit suicide) has
been held to be constitutionally valid in Gian
10
Kaur’s case (supra), the time has come when it
should be deleted by Parliament as it has become
anachronistic. A person attempts suicide in a
depression, and hence he needs help, rather than
punishment. We therefore recommend to Parliament to
consider the feasibility of deleting Section 309
from the Indian Penal Code.
101.It may be noted that in Gian Kaur’s case (supra)
although the Supreme Court has quoted with approval
the view of the House of Lords in Airedale’s case
(supra), it has not clarified who can decide whether
life support should be discontinued in the case of
an incompetent person e.g. a person in coma or PVS.
This vexed question has been arising often in India
because there are a large number of cases where
persons go into coma (due to an accident or some
other reason) or for some other reason are unable to
give consent, and then the question arises as to who
should give consent for withdrawal of life support.
102.This is an extremely important question in India
10
because of the unfortunate low level of ethical
standards to which our society has descended, its
raw and widespread commercialization, and the
rampant corruption, and hence, the Court has to be
very cautious that unscrupulous persons who wish to
inherit the property of someone may not get him
eliminated by some crooked method.
103.Also, since medical science is advancing fast,
doctors must not declare a patient to be a hopeless
case unless there appears to be no reasonable
possibility of any improvement by some newly
discovered medical method in the near future. In
this connection we may refer to a recent news item
which we have come across on the internet of an
Arkansas man Terry Wallis, who was 19 years of age
and newly married with a baby daughter when in 1984
his truck plunged through a guard rail, falling 25
feet. He went into coma in the crash in 1984, but
after 24 years he has regained consciousness. This
was perhaps because his brain spontaneously rewired
itself by growing tiny new nerve connections to
10
replace the ones sheared apart in the car crash.
Probably the nerve fibers from Terry Wallis’ cells
were severed but the cells themselves remained
intact, unlike Terri Schiavo, whose brain cells had
died (see Terri Schiavo’s case on Google).
104.However, we make it clear that it is experts
like medical practitioners who can decide whether
there is any reasonable possibility of a new medical
discovery which could enable such a patient to
revive in the near future.
WHEN CAN A PERSON IS SAID TO BE DEAD
105.It is alleged in the writ petition filed by Ms.
Pinky Virani (claiming to be the next friend of
Aruna Shanbaug) that in fact Aruna Shanbaug is
already dead and hence by not feeding her body any
more we shall not be killing her. The question
hence arises as to when a person can be said to be
dead ?
106.A person’s most important organ is his/her
11
brain. This organ cannot be replaced. Other body
parts can be replaced e.g. if a person’s hand or leg
is amputed, he can get an artificial limb.
Similarly, we can transplant a kidney, a heart or a
liver when the original one has failed. However, we
cannot transplant a brain. If someone else’s brain
is transplanted into one’s body, then in fact, it
will be that other person living in one’s body. The
entire mind, including one’s personality, cognition,
memory, capacity of receiving signals from the five
senses and capacity of giving commands to the other
parts of the body, etc. are the functions of the
brain. Hence one is one’s brain. It follows that
one is dead when one’s brain is dead.
107.As is well-known, the brain cells normally do
not multiply after the early years of childhood
(except in the region called hippocampus), unlike
other cells like skin cells, which are regularly
dying and being replaced by new cells produced by
multiplying of the old cells. This is probably
because brain cells are too highly specialized to
11
multiply. Hence if the brain cells die, they
usually cannot be replaced (though sometimes one
part of the brain can take over the function of
another part in certain situations where the other
part has been irreversibly damaged).
108.Brain cells require regular supply of oxygen
which comes through the red cells in the blood. If
oxygen supply is cut off for more than six minutes,
the brain cells die and this condition is known as
anoxia. Hence, if the brain is dead a person is
said to be dead.
BRAIN DEATH
109.The term ‘brain death’ has developed various
meanings. While initially, death could be defined as
a cessation of breathing, or, more scientifically, a
cessation of heart-beat, recent medical advances
have made such definitions obsolete. In order to
understand the nature and scope of brain death, it
is worthwhile to look at how death was understood.
11
Historically, as the oft-quoted definition in
Black’s Law Dictionary suggests, death was:
“The cessation of life; the ceasing to exist;
defined by physicians as a total stoppage of the
circulation of the blood, and a cessation of the
animal and vital functions consequent thereon, such
as respiration, pulsation, etc.”.1 This definition
saw its echo in numerous other texts and legal case
law. This includes many American precedents- such as
Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961)
(“Black's Law Dictionary, 4th Ed., defines death as
‘the cessation of life; the ceasing to
exist ....”’); and Sanger v. Butler, 101 S.W. 459,
462 (Tex. Civ. App. 1907) (“The Encyclopaedic
Dictionary, among others, gives the following
definitions of [death]: ‘The state of being dead;
the act or state of dying; the state or condition of
the dead.’ The Century Dictionary defines death as
‘cessation of life; that state of a being, animal or
vegetable, in which there is a total and permanent
1 Black's Law Dictionary 488 (4th ed., rev. 1968).
11
cessation of all the vital functions.”’).2
110.This understanding of death emerged from a
cardiopulmonary perspective. In such cases, the
brain was usually irrelevant -- being understood
that the cessation of circulation would
automatically lead to the death of brain cells,
which require a great deal of blood to survive.
111.The invention of the ventilator and the
defibrillator in the 1920s altered this
understanding, it being now possible that the
cessation of respiration and circulation, though
critical, would no longer be irreversible3. Hence, a
present-day understanding of death as the
irreversible end of life must imply total brain
failure, such that neither breathing, nor
circulation is possible any more. The question of
the length of time that may determine such death is
significant, especially considering a significant
2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many
Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).
3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for
Determination of Death: A Comparative Analysis of the United States and
Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).
11
increase in organ donations across jurisdictions
over the last few years.
112.Brain death, may thus, be defined as “the
irreversible cessation of all functions of the
entire brain, including the brain stem”.4 It is
important to understand that this definition goes
beyond acknowledging consciousness -- a person who
is incapable of ever regaining consciousness will
not be considered to be brain dead as long as parts
of the brain e.g. brain stem that regulate
involuntary activity (such as response to light,
respiration, heartbeat etc.) still continue to
function. Likewise, if consciousness, albeit
severely limited, is present, then a person will be
considered to be alive even if he has suffered brain
stem death, wherein breathing and heartbeat can no
longer be regulated and must be mechanically
determined. Hence, the international standard for
brain death is usually considered to include “whole-
4 Section 1, Universal Determination of Death Act, (The United States
Legislation)
11
brain death”, i.e., a situation where the higher
brain (i.e. the part of the brain that regulates
consciousness and thought), the cerebellum or midbrain,
and the brain-stem have all ceased to
demonstrate any electrical activity whatsoever for a
significant amount of time. To say, in most cases,
that only the death of the higher brain would be a
criteria for ‘brain death’ may have certain serious
consequences -- for example, a foetus, technically
under this definition, would not be considered to be
alive at all. Similarly, as per this, different
definitions of death would apply to human and nonhuman
organisms.
113.Brain death, thus, is different from a
persistent vegetative state, where the brain stem
continues to work, and so some degree of reactions
may occur, though the possibility of regaining
consciousness is relatively remote. Even when a
person is incapable of any response, but is able to
sustain respiration and circulation, he cannot be
said to be dead. The mere mechanical act of
11
breathing, thus, would enable him or her to be
“alive”.
114.The first attempt to define death in this manner
came about in 1968, as a result of a Harvard
Committee constituted for the purpose.5 This
definition, widely criticized for trying to maximize
organ donations, considered death to be a situation
wherein “individuals who had sustained traumatic
brain injury that caused them to be in an
irreversible coma, and had lost the ability to
breathe spontaneously”6, would be considered dead.
This criticism led to the Presidents’ Committee, set
up for the purpose, in 1981, defining death more
vaguely as the point “where the body’s physiological
system ceases to contribute a uniform whole”.
This definition of whole brain death, however, is
not without its critics. Some argue that the brain
is not always responsible for all bodily
5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of
Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40
(1968).
6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal
Fictions in the Determination of Death. 36 Am. J.L. & Med. 540 (2010).
11
functioning- digestion, growth, and some degree of
movement (regulated by the spinal cord) may not
require any electrical activity in the brain. In
order to combat this argument, and further explain
what brain death could include, the President’s
Committee on Bio-ethics in the United States of
America in 2008 came up with a new definition of
brain death, according to which a person was
considered to be brain dead when he could no longer
perform the fundamental human work of an organism.
These are:
“(1) “openness to the world, that is receptivity to
stimuli and signals from the surrounding
environment,”
(2) “the ability to act upon the world to obtain
selectively what it needs.
and (3) “the basic felt need that drives the
organism to act ... to obtain what it needs.”7
115.When this situation is reached, it is possible
to assume that the person is dead, even though he or
she, through mechanical stimulation, may be able to
breathe, his or her heart might be able to beat, and
7 Ibid.
11
he or she may be able to take some form of
nourishment. It is important, thus, that it be
medically proved that a situation where any human
functioning would be impossible should have been
reached for there to be a declaration of brain
death--situations where a person is in a persistent
vegetative state but can support breathing, cardiac
functions, and digestion without any mechanical aid
are necessarily those that will not come within the
ambit of brain death.
116.In legal terms, the question of death would
naturally assume significance as death has a set of
legal consequences as well. As per the definition in
the American Uniform Definition of Death Act, 1980.
an individual who “sustain[s] . . . irreversible
cessation of all functions of the entire brain,
including the brain stem, is dead.” This stage,
thus, is reached at a situation where not only
consciousness, but every other aspect of life
regulated from the brain can no longer be so
regulated.
11
117.In the case of ‘euthanasia’, however, the
situation is slightly different. In these cases, it
is believed, that a determination of when it would
be right or fair to disallow resuscitation of a
person who is incapable of expressing his or her
consent to a termination of his or her life depends
on two circumstances:
a.when a person is only kept alive
mechanically, i.e. when not only
consciousness is lost, but the person is
only able to sustain involuntary
functioning through advanced medical
technology--such as the use of heart-lung
machines, medical ventilators etc.
b.when there is no plausible possibility of
the person ever being able to come out of
this stage. Medical “miracles” are not
unknown, but if a person has been at a
stage where his life is only sustained
through medical technology, and there has
been no significant alteration in the
person’s condition for a long period of
time—at least a few years--then there can
be a fair case made out for passive
12
euthanasia.
To extend this further, especially when a person is
incapable of being able to give any consent, would
amount to committing judicial murder.
118.In this connection we may refer to the
Transplantation of Human Organs Act, 1994 enacted by
the Indian Parliament. Section 2(d) of the Act
states :
“brain-stem death” means the stage at which
all functions of the brain-stem have
permanently and irreversibly ceased and is
so certified under sub-section (6) of
section 3:”
119.Section 3(6) of the said Act states:
“(6) Where any human organ is to be removed
from the body of a person in the event of his brainstem
death, no such removal shall be undertaken
unless such death is certified, in such form and in
such manner and on satisfaction of such conditions
and requirements as may be prescribed, by a Board of
medical experts consisting of the following,
12
namely:-
(i) the registered medical
practitioner, in charge of the
hospital in which brain-stem death
has occurred;
(ii) an independent registered medical
practitioner, being a specialist,
to be nominated by the registered
medical practitioner specified in
clause (i), from the panel of names
approved by the Appropriate
Authority;
(iii) a neurologist or a neurosurgeon
to be nominated by the registered
medical practitioner specified in
clause (i), from the panel of names
approved by the Appropriate
Authority; and
(iv) the registered medical practitioner
treating the person whose brainstem
death has occurred”.
120.Although the above Act was only for the purpose
of regulation of transplantation of human organs it
throws some light on the meaning of brain death.
121.From the above angle, it cannot be said that
Aruna Shanbaug is dead. Even from the report of
Committee of Doctors which we have quoted above it
appears that she has some brain activity, though
12
very little.
122.She recognizes that persons are around her and
expresses her like or dislike by making some vocal
sound and waving her hand by certain movements. She
smiles if she receives her favourite food, fish and
chicken soup. She breathes normally and does not
require a heart lung machine or intravenous tube for
feeding. Her pulse rate and respiratory rate and
blood pressure are normal. She was able to blink
well and could see her doctors who examined her.
When an attempt was made to feed her through mouth
she accepted a spoonful of water, some sugar and
mashed banana. She also licked the sugar and banana
paste sticking on her upper lips and swallowed it.
She would get disturbed when many people entered her
room, but she appeared to calm down when she was
touched or caressed gently.
123.Aruna Shanbaug meets most of the criteria for
being in a permanent vegetative state which has
resulted for 37 years. However, her dementia has
12
not progressed and has remained stable for many
years.
124.From the above examination by the team of
doctors, it cannot be said that Aruna Shanbaug is
dead. Whatever the condition of her cortex, her
brain stem is certainly alive. She does not need a
heart--lung machine. She breathes on her own
without the help of a respirator. She digests food,
and her body performs other involuntary function
without any help. From the CD (which we had
screened in the courtroom on 2.3.2011 in the
presence of counsels and others) it appears that she
can certainly not be called dead. She was making
some sounds, blinking, eating food put in her mouth,
and even licking with her tongue morsels on her
mouth.
125.However, there appears little possibility of her
coming out of PVS in which she is in. In all
probability, she will continue to be in the state in
which she is in till her death. The question now is
12
whether her life support system (which is done by
feeding her) should be withdrawn, and at whose
instance?
WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT
VEGETATIVE STATE (PVS)
126.There is no statutory provision in our country
as to the legal procedure for withdrawing life
support to a person in PVS or who is otherwise
incompetent to take a decision in this connection.
We agree with Mr. Andhyarujina that passive
euthanasia should be permitted in our country in
certain situations, and we disagree with the learned
Attorney General that it should never be permitted.
Hence, following the technique used in Vishakha’s
case (supra), we are laying down the law in this
connection which will continue to be the law until
Parliament makes a law on the subject.
(i) A decision has to be taken to
discontinue life support either by the
parents or the spouse or other close
12
relatives, or in the absence of any of
them, such a decision can be taken
even by a person or a body of persons
acting as a next friend. It can also
be taken by the doctors attending the
patient. However, the decision should
be taken bona fide in the best interest
of the patient.
In the present case, we have already
noted that Aruna Shanbaug’s parents are dead
and other close relatives are not interested
in her ever since she had the unfortunate
assault on her. As already noted above, it
is the KEM hospital staff, who have been
amazingly caring for her day and night for
so many long years, who really are her next
friends, and not Ms. Pinky Virani who has
only visited her on few occasions and
written a book on her. Hence it is for the
KEM hospital staff to take that decision.
The KEM hospital staff have clearly
12
expressed their wish that Aruna Shanbaug
should be allowed to live.
Mr. Pallav Shisodia, learned senior
counsel, appearing for the Dean, KEM
Hospital, Mumbai, submitted that Ms. Pinky
Virani has no locus standi in this case. In
our opinion it is not necessary for us to go
into this question since we are of the
opinion that it is the KEM Hospital staff
who is really the next friend of Aruna
Shanbaug.
We do not mean to decry or disparage
what Ms. Pinky Virani has done. Rather, we
wish to express our appreciation of the
splendid social spirit she has shown. We
have seen on the internet that she has been
espousing many social causes, and we hold
her in high esteem. All that we wish to say
is that however much her interest in Aruna
Shanbaug may be it cannot match the
12
involvement of the KEM hospital staff who
have been taking care of Aruna day and night
for 38 years.
However, assuming that the KEM hospital
staff at some future time changes its mind,
in our opinion in such a situation the KEM
hospital would have to apply to the Bombay
High Court for approval of the decision
to withdraw life support.
(ii) Hence, even if a decision is taken by
the near relatives or doctors or next
friend to withdraw life support, such a
decision requires approval from the
High Court concerned as laid down in
Airedale’s case (supra).
In our opinion, this is even more
necessary in our country as we cannot rule
out the possibility of mischief being done
by relatives or others for inheriting the
property of the patient.
12
127.In our opinion, if we leave it solely to the
patient’s relatives or to the doctors or next friend
to decide whether to withdraw the life support of an
incompetent person there is always a risk in our
country that this may be misused by some
unscrupulous persons who wish to inherit or
otherwise grab the property of the patient.
Considering the low ethical levels prevailing in our
society today and the rampant commercialization and
corruption, we cannot rule out the possibility that
unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to show
that it is a terminal case with no chance of
recovery. There are doctors and doctors. While
many doctors are upright, there are others who can
do anything for money (see George Bernard Shaw’s
play ‘The Doctors Dilemma’). The commercialization
of our society has crossed all limits. Hence we
have to guard against the potential of misuse (see
Robin Cook’s novel ‘Coma’). In our opinion, while
giving great weight to the wishes of the parents,
12
spouse, or other close relatives or next friend of
the incompetent patient and also giving due weight
to the opinion of the attending doctors, we cannot
leave it entirely to their discretion whether to
discontinue the life support or not. We agree with
the decision of the Lord Keith in Airedale’s case
(supra) that the approval of the High Court should
be taken in this connection. This is in the
interest of the protection of the patient,
protection of the doctors, relative and next friend,
and for reassurance of the patient’s family as well
as the public. This is also in consonance with the
doctrine of parens patriae which is a well known
principle of law.
DOCTRINE OF PARENS PATRIAE
128.The doctrine of Parens Patriae (father of the
country) had originated in British law as early as
the 13th century. It implies that the King is the
father of the country and is under obligation to
look after the interest of those who are unable to
13
look after themselves. The idea behind Parens
Patriae is that if a citizen is in need of someone
who can act as a parent who can make decisions and
take some other action, sometimes the State is best
qualified to take on this role.
129.In the Constitution Bench decision of this Court
in Charan Lal Sahu vs. Union of India (1990) 1 SCC
613 (vide paras 35 and 36), the doctrine has been
explained in some details as follows :
“In the “Words and Phrases”
Permanent Edition, Vol. 33 at page 99,
it is stated that parens patriae is the
inherent power and authority of a
legislature to provide protection to
the person and property of persons non
sui juris, such as minor, insane, and
incompetent persons, but the words
parens patriae meaning thereby ‘the
father of the country’, were applied
originally to the King and are used to
designate the State referring to its
sovereign power of guardianship over
persons under disability. Parens
patriae jurisdiction, it has been
explained, is the right of the
sovereign and imposes a duty on the
sovereign, in public interest, to
protect persons under disability who
have no rightful protector. The
connotation of the term parens patriae
differs from country to country, for
instance, in England it is the King, in
13
America it is the people, etc. The
government is within its duty to
protect and to control persons under
disability”.
The duty of the King in feudal times to act as
parens patriae (father of the country) has been
taken over in modern times by the State.
130.In Heller vs. DOE (509) US 312 Mr. Justice
Kennedy speaking for the U.S. Supreme Court observed
:
“the State has a legitimate interest
under its parens patriae powers in
providing care to its citizens who are
unable to care for themselves”.
131.In State of Kerala vs. N.M. Thomas, 1976(1) SCR
906 (at page 951) Mr. Justice Mathew observed :
“ The Court also is ‘state’ within the
meaning of Article 12 (of the
Constitution).”.
132.In our opinion, in the case of an incompetent
person who is unable to take a decision whether to
withdraw life support or not, it is the Court alone,
13
as parens patriae, which ultimately must take this
decision, though, no doubt, the views of the near
relatives, next friend and doctors must be given due
weight.
UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT
APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN
INCOMPETENT PERSON
133.In our opinion, it is the High Court under
Article 226 of the Constitution which can grant
approval for withdrawal of life support to such an
incompetent person. Article 226(1) of the
Constitution states :
“Notwithstanding anything in article
32, every High Court shall have power,
throughout the territories in relation
to which it exercises jurisdiction, to
issue to any person or authority,
including in appropriate cases, any
Government, within those territories
directions, orders or writs, including
writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari, or any of them, for the
enforcement of any of the rights
conferred by Part III and for any other
purpose”.
134.A bare perusal of the above provisions shows
13
that the High Court under Article 226 of the
Constitution is not only entitled to issue writs,
but is also entitled to issue directions or orders.
135.In Dwarka Nath vs. ITO AIR 1966 SC 81(vide
paragraph 4) this Court observed :
“This article is couched in
comprehensive phraseology and it ex
facie confers a wide power on the High
Courts to reach injustice wherever it
is found. The Constitution designedly
used a wide language in describing the
nature of the power, the purpose for
which and the person or authority
against whom it can be exercised. It
can issue writs in the nature of
prerogative writs as understood in
England; but the scope of those writs
also is widened by the use of the
expression “nature”, for the said
expression does not equate the writs
that can be issued in India with those
in England, but only draws an analogy
from them. That apart, High Courts can
also issue directions, orders or writs
other than the prerogative writs. It
enables the High Courts to mould the
reliefs to meet the peculiar and
complicated requirements of this
country. Any attempt to equate the
scope of the power of the High Court
under Art. 226 of the Constitution with
that of the English Courts to issue
prerogative writs is to introduce the
unnecessary procedural restrictions
grown over the years in a comparatively
small country like England with a
13
unitary form of Government to a vast
country like India functioning under a
federal structure.”
136.The above decision has been followed by this
Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani
AIR 1989 SC 1607 (vide para 18).
137.No doubt, the ordinary practice in our High
Courts since the time of framing of the Constitution
in 1950 is that petitions filed under Article 226 of
the Constitution pray for a writ of the kind
referred to in the provision. However, from the
very language of the Article 226, and as explained
by the above decisions, a petition can also be made
to the High Court under Article 226 of the
Constitution praying for an order or direction, and
not for any writ. Hence, in our opinion, Article
226 gives abundant power to the High Court to pass
suitable orders on the application filed by the near
relatives or next friend or the doctors/hospital
staff praying for permission to withdraw the life
support to an incompetent person of the kind above
13
mentioned.
PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH
AN APPLICATION IS FILED
138.When such an application is filed the Chief
Justice of the High Court should forthwith
constitute a Bench of at least two Judges who should
decide to grant approval or not. Before doing so
the Bench should seek the opinion of a committee of
three reputed doctors to be nominated by the Bench
after consulting such medical authorities/medical
practitioners as it may deem fit. Preferably one of
the three doctors should be a neurologist, one
should be a psychiatrist, and the third a physician.
For this purpose a panel of doctors in every city
may be prepared by the High Court in consultation
with the State Government/Union Territory and their
fees for this purpose may be fixed.
139.The committee of three doctors nominated by the
Bench should carefully examine the patient and also
consult the record of the patient as well as taking
13
the views of the hospital staff and submit its
report to the High Court Bench.
140.Simultaneously with appointing the committee of
doctors, the High Court Bench shall also issue
notice to the State and close relatives e.g.
parents, spouse, brothers/sisters etc. of the
patient, and in their absence his/her next friend,
and supply a copy of the report of the doctor’s
committee to them as soon as it is available. After
hearing them, the High Court bench should give its
verdict. The above procedure should be followed
all over India until Parliament makes legislation on
this subject.
141.The High Court should give its decision speedily
at the earliest, since delay in the matter may
result in causing great mental agony to the
relatives and persons close to the patient.
142.The High Court should give its decision
assigning specific reasons in accordance with the
13
principle of ‘best interest of the patient’ laid
down by the House of Lords in Airedale’s case
(supra). The views of the near relatives and
committee of doctors should be given due weight by
the High Court before pronouncing a final verdict
which shall not be summary in nature.
143.With these observations, this petition is
dismissed.
144.Before parting with the case, we would like to
express our gratitude to Mr. Shekhar Naphade,
learned senior counsel for the petitioner, assisted
by Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal
Chandra S. Dave, advocates, the learned Attorney
General for India Mr. G. E. Vahanvati, assisted by
Mr. Chinmoy P. Sharma, advocate, Mr. T. R.
Andhyarujina, learned Senior Counsel, whom we had
appointed as amicus curiae assisted by Mr. Soumik
Ghoshal, advocate, Mr. Pallav Shishodia, learned
senior counsel, assisted by Ms. Sunaina Dutta and
Mrs. Suchitra Atul Chitale, advocates for the KEM
13
Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel
for the State of Maharashtra, assisted by Mr. Sanjay
V. Kharde and Ms. Asha Gopalan Nair, advocates, who
were of great assistance to us. We wish to express
our appreciation of Mr. Manav Kapur, Advocate, who
is Law-Clerk-cum-Research Assistant of one of us
(Katju, J.) as well as Ms. Neha Purohit, Advocate,
who is Law-Clerk-cum-Research Assistant of Hon’ble
Justice Gyan Sudha Mishra. We also wish to mention
the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav
Rangarajan, final year law students in the School of
Excellence, Dr. B.R. Ambedkar Law University,
Chennai, who were the interns of one of us (Katju,
J.) and who were of great help in doing research in
this case.
145.We wish to commend the team of doctors of Mumbai
who helped us viz. Dr. J. V. Divatia, Professor and
Head, Department of Anesthesia, Critical Care and
Pain at Tata Memorial Hospital, Mumbai; Dr. Roop
Gursahani, Consultant Neurologist at P.D. Hinduja,
Mumbai; and Dr. Nilesh Shah, Professor and Head,
13
Department of Psychiatry at Lokmanya Tilak Municipal
Corporation Medical College and General Hospital.
They did an excellent job.
146.We also wish to express our appreciation of Ms.
Pinki Virani who filed this petition. Although we
have dismissed the petition for the reasons given
above, we regard her as a public spirited person who
filed the petition for a cause she bona fide
regarded as correct and ethical. We hold her in
high esteem.
147.We also commend the entire staff of KEM
Hospital, Mumbai (including the retired staff) for
their noble spirit and outstanding, exemplary and
unprecedented dedication in taking care of Aruna for
so many long years. Every Indian is proud of them.
……….…………………….J.
(Markandey Katju)
…………………………….J.
(Gyan Sudha Misra)
14
New Delhi:
March 07, 2011
14

CML Seniority is the basis for Associate Professor Promotion

2011-02-10T15:45:00.000+05:30

http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=29507

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:- 02.02.2011

Coram:- The Hon'ble Mr. Justice T.RAJA

Writ Petition Nos.26180, 26576, 26585, 27056 and 27217 of 2010 & M.P. Nos.1 of 2010

Dr.R.Senthilnathan ..Petr. in WP.26180/10

1.Dr.A.Rathinavel
2.Dr.S.R.Dhamodharan
3.Dr.C.P.M.Chandrasekar
4.Dr.S.C.Vivekanandan
5.Dr.M.N.Karthi
6.Dr.S.Peer Mohammed
7.Dr.V.Ravichandran
8.Dr.David Pratheep Kumar
9.Dr.D.Maruthu Pandian ..Petrs. in WP.26576/10

1.Dr.R.Velmurugan
2.Dr.B.Mariappan
3.Dr.C.Sankkara Barathi ..Petrs. in WP.26585/10

Dr.H.Sivanarutchelvan ..Petr. in WP.27056/10

1.Dr.Y.Arul Prakash
2.Dr.S.Thilagar
3.Dr.J.Chitra
4.Dr.M.Jesu Thangam
5.Dr.A.J.S.Praveen
6.Dr.P.M.Suresh
7.Dr.R.Prabhakaran
8.Dr.D.Joseph
9.Dr.S.R.Kannan
10.Dr.K.Krishnan Kutty
11.Dr.Y.Kingsly Jebasingh
12.Dr.A.Vasuki Nathan
13.Dr.J.Edward Johnson
14.Dr.S.Frank Davis Daniel
15.Dr.P.John Christopher ..Petrs. In WP.27217/10

vs.

Medical Council of India,
rep. By its Secretary,
Pocket-14, Sector-8,
Dwarka Phase-I,
New Delhi 110 077.

The State of Tamil Nadu,
rep. By its Principal
Secretary to the Government,
Health and Family Welfare Department,
Fort St. George,
Chennai 600 009.

Director of Medical Education,
Periyar EVR Road,
Kilpauk, Chennai-10. ..R1 to R3 in all the Writ Petns.

The State of Tamil Nadu,
rep. By its Principal
Secretary to the Government,
Finance Department,
Fort St. George,
Chennai 600 009. ..R4 in WP.27056/10

Dr.G.V.Manoharan
D.D.Krishnan
Dr.Chandramouoleeswaran
Dr.V.Kamaraj
Dr.Arunan
Dr.K.kamaraj
Dr.Saravanakumaran
Dr.N.Bhaskaran
Dr.Gomathy Karmegam
Dr.Abdul Khadar
Dr.Govardhan
Dr.Manickavel
Dr.Asokan
Dr.Kalaiselvi
Dr.V.Ganesan ..R4 to R18 in WP.26180 of 2010
(R4 to R18 impleaded
vide order passed in
M.P.No.2/2010)

Petitions under Article 226 of the Constitution of India for the relief as stated therein.

For Petitioners in
WP No.27217 of 2010 : Mr.P.Gadson Swaminath

For Petitioners in
other Writ Petitions : Mrs.Nalini Chidambaram
Senior Counsel for Ms.C.Uma

For Respondents-2 & 3 : Mr.G.Sankaran,
in all WPS & R-4 Special Govt. Pleader,
in WP.27056 of 2010 Assisted by Mr.S.Naganathan-GA

For R4 to R18 in
WP No.26180 of 2010 : Mr.C.Kanagaraj
for Mr.K.P.Narayanan

COMMON ORDER

Writ Petition Nos.26180, 26576, 26585 and 27056 of 2010 have been filed by the respective petitioners serving as Government Medical Officers in the State of Tamil Nadu, seeking for issuance of writs of mandamus to forbear the 3rd respondent-Director of Medical Education, Chennai-10, from conducting any counselling for appointment to the post of Associate Professors and Professors in the Tamil Nadu Medical Services in any discipline based on the Draft Seniority List sent along with the proceedings of the said respondent bearing Reference No.78809/E1/1/10, dated 07.10.2010, sent to all the Deans of Medical Colleges/Medical Superintendents and Director of Upgraded Institutes; and consequently direct the 3rd respondent to await the preparation of the final speciality seniority list comprising the panel of Assistant Professors for promotion to the posts of Associate Professors and Professors for the year 2010-11 and to complete the process of re-fitment of Professors in 1511 posts and Assistant Professors in 1420 posts till date in accordance with G.O. Ms. No.354, dated 23.10.2009, before conducting the aforesaid counselling.

2. Another Writ Petition in W.P. No.27217 of 2010 has been preferred with a prayer for issuance of a writ of mandamus, directing respondent Nos.2 and 3 viz., the Principal Secretary to the Government, Health and Family Welfare Department, Chennai-9, and the Director of Medical Education, Chennai-10, to complete forthwith the process of filling of the existing vacancies of Associate Professors and Professors in all specialities in various Government Medical Colleges in the State as initiated by the 3rd respondent as per his proceedings in Ref. No.78809/E1/1/10, dated 07.10.2010, in accordance with the Medical Council of India Regulations as well as G.O. Ms. No.354 (Health and Family Welfare Department B2), dated 23.10.2009.

3. To-day, on the cases being posted for filing counter, Mr.G.Sankaran, learned Special Government Pleader appearing for the respondents/State requested this Court for grant of further time enabling the respondents concerned to file counter-affidavit and, for such request, Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the petitioners in the above referred four writ petitions, raised strong objections by stating that if the matters stand adjourned for filing counter, the prayer made would be rendered infructuous since counselling has begun now and it would get completed in the course of this week. So stating, learned Senior Counsel requested this Court to right away take up the matters for disposal. In view of the urgency said to have been involved, this Court, with the consent of all the parties, has taken up the cases and heard the respective counsels appearing on either side at length. The Writ Petitions, which are interrelated and revolving around G.O. Ms. No.354, dated 23.10.2009, are disposed of by this Common Order.

4. For better appreciation, the case of the petitioners is briefly outlined here-under. The petitioners, after completing their MBBS Course, appeared in the Examinations conducted by the Tamil Nadu Public Service Commission (TNPSC) and, on emerging successful, they were appointed to the posts of Assistant Surgeon in the Tamil Nadu Medical Services. At the time of appointment, the successful candidates in the TNPSC were provided with an entry point number known as Civil Medical List (in short 'CML' Number) based on the marks obtained by them in the TNPSC Examination and other reservations including communal reservation. Subsequently, on completing their PG (Post Graduation) courses in various specialities and super-specialities, the petitioners continued to serve as Assistant Surgeons at various Government Hospitals/Health Centres in the State of Tamil Nadu. After sometime, they were relieved by the Director of Medical Service and posted by the 3rd respondent as Assistant Professors in the respective specialities. As per the MCI (Medical Council of India) Regulations, an Assistant Professor is eligible for promotion to the post of Associate Professor on completion of 2 years of service as Assistant Professor in a recognized Medical College. In the present cases, 3 years of teaching experience was prescribed as the minimum experience for promotion to the post of Associate Professor for those who undertook the 2 year Higher/Super Speciality Course. The petitioners, having completed the said 2 year Super Speciality Course, gained sufficient teaching experience in the Higher/Super Speciality Medical Education. As per the norms prescribed by the first respondent/MCI, the petitioners were eligible to be promoted to the post of Associate Professor long back; but, due to lack of adequate promotional opportunities and stagnancy at various levels in the cadre system, the petitioners could not get their due promotions. Therefore, the Tamil Nadu Govt. Doctors Association (TNGDA) made a request to the 2nd respondent for providing the Government Doctors with Dynamic Assured Career Progression (DACP) since promotional opportunities for the Government Doctors in the Medical Education were deficient. After considering the request made by TNGDA, the 2nd respondent issued G.O. Ms. No.194, Health and Family Welfare Department, dated 07.07.2009, constituting a Committee headed by the Special Secretary to the Government, Finance Department, to look into the promotional opportunities of Government Doctors at various levels. The Committee, after studying the situation and possible modalities to create better promotional opportunities to the Government Doctors, submitted its recommendations vide letter dated 03.08.2009. After considering the recommendations contained in the said letter, the first respondent issued G.O. Ms. No.354, Health and Family Welfare (B2) Department, dated 23.10.2009, prescribing the guidelines for promotion and other service conditions to the Government Doctors. Complaining that the said G.O. has not been applied in their case in its letter and spirit, the petitioners in the aforementioned 4 writ petitions have approached this Court for the issuance of mandamus as stated above.
5. Arguing the case for the petitioners in the above said four writ petitions, Mrs.Nalini Chidambaram, learned Senior Counsel made her submissions in four segments.
(a) The respondents are bound to follow the Seniority criteria as provided in G.O. Ms. No.354, dated 23.10.2009, for promotion to the posts of Associate Professor/Professor at the time of counselling for the year 2010. Instead of following the said Government Order, by proceedings dated 07.10.2010, addressed to the Deans of Medical Colleges/Medical Superintendents and Director of Upgraded Institutes, the 3rd respondent issued the Draft Seniority List of the Government Doctors in each speciality for the purpose of promotion to the post of Professors and Associate Professors, asking for the particulars of all the Medical Officers for preparation of the Final Seniority List. It is found in the list that seniority was determined based on the CML (Civil Medical List) Number assigned to the Medical Officers during entry into the service and not the Speciality Specific Seniority. According to the learned Senior Counsel, the guidelines contained in G.O. No.354 were grossly violated while preparing the Draft Seniority List by following the CML Number and unjustly ignoring the Speciality Specific Seniority. This has caused serious prejudice to the petitioners since the Government Doctors who are less experienced in the respective specific speciality will steal a march over the Doctors like the petitioners who are seniors to them.
(b) Once the petitioners acquired Speciality Specific Seniority, such seniority alone should be taken as the criterion for promotion irrespective of the ranking given as per the CML Number.
(c) While preparing the Seniority List of the petitioners, the respondents should have reconciled clauses-(iv) and (vii) of G.O. Ms. No.354 so as to avoid the adverse prospect of overlooking the Speciality Specific Seniority.
(d) While considering a similar case in W.P. No.2775 of 2008, by orders dated 09.06.2010, this Court has categorically held that final seniority or date of promotion is the criteria for future promotion to the next higher cadre and not the CML Seniority. The said decision being applicable in all fours to the facts of the present case, since the 3rd respondent had ignored the said conclusion while preparing the Draft Seniority List of Assistant Professors, this Court may direct the authorities to follow the said order of this Court.
Relying upon a decision of the Apex Court in Challa Jaya Bhaskar vs. Thungathurthi Surendar (Manu/SC/0870/2010) to substantiate her plea that the procedure adopted in the present case is unjust, learned Senior Counsel ultimately pleaded this Court to issue suitable directions for exclusive consideration of Speciality Specific Seniority in the case of the petitioners without reference to the CML Number assigned at the entry point into the service.

6. Per contra, learned Special Government Pleader appearing for the respondents/State, on instructions, would submit that the authorities scrupulously followed G.O. No.354, which provides that the Director of Medical Education Unit's Seniority list will be of two categories viz., (a) General seniority for all those Doctors with MBBS and Diploma Degree and (b) Specialist Seniority ie., Speciality-wise seniority for those with Master Degree and or Super Speciality Degree. Further, both the general seniority and speciality seniority will be based on their seniority in the CML. It is stressed that, after getting the seniority in their speciality, their future promotions would be based on the speciality specific seniority and they would not have further lien on their seniority in Civil Medical List for the purpose of promotion. However, seniority in Civil Medical List would be relevant only for the limited purpose of fixing inter-se seniority relating to those who joined their speciality in the Director of Medical Education Side. Thus, CML Seniority would be relevant only to fix the seniority in the Speciality Specific Seniority.
It is further submitted that when a person joins any speciality under the Directorate of Medical Education, his iner-se seniority in the speciality would depend on the person's seniority in the CML, because, CML would continue to be the criteria to decide the speciality specific seniority till the Associate Professor Level.
The counselling scheduled is for selecting the persons for the post of Associate Professors and, in line with the guidelines issued in the G.O., seniority ranking allotted by the respondents as per CML will have to be taken into account to decide the Speciality Specific Seniority. As there is no specific rule to ignore the seniority obtained by the petitioners in the CML, the contention advanced by the learned Senior Counsel for the petitioners to ignore the ranking assigned as per the CML and to independently consider the Speciality Specific Seniority cannot be appreciated.
Referring to the order passed by this Court in W.P. No.2775 of 2008, it is submitted that the issue decided by this Court in that case was in respect of promotion to the post of Director and Superintendent, which is above the grade of Associate Professor and, in such a case, it was held that seniority in the Feeder category should be taken into account without considering the seniority mentioned in the CML. Thus, the said decision could be made applicable to those cases relating to promotion to the post equivalent to Professor and not for other persons as that of the petitioners, who are aspiring for promotion to the post of Associate Professors.
Referring to the Annexure to the Letter of the 2nd respondent, dated 31.01.2011, learned Special Government Pleader states that the special seniority has already been assigned to the Medical Teachers working in the Directorate of Medical Education Side and other Directorates; thus, the petitioners are not justified in alleging that G.O. Ms. No.354 is not complied with in the present case.
With regard to the submissions made by the learned Senior Counsel for the petitioners citing the decision of the Apex court in Challa Jaya Bhaskar's case (referred supra), it is submitted that the ratio decided therein is completely on a different issue as it was held in that case that those belonging to non-teaching line could not be appointed till they acquire the PG degree. Since that issue is not the subject matter of the present Writ Petitions, the ratio sought to be applied by the learned Senior Counsel for the petitioners will not be relevant to the case on hand.
Ultimately, it is submitted that the respondents have scrupulously adhered to the guidelines of the G.O. in its letter and spirit and such aspect is reflected in the letter of the 2nd respondent and under such circumstances, there being no scope for interference at all, the prayer of the petitioners should be summarily rejected.

7. In support of the stand taken by the learned Special Government Pleader, Mr.Gadson Swaminath, learned counsel appearing for the petitioners in W.P. No.27217 of 2010 and Mr.C.Kanagaraj, learned counsel appearing for R-4 to R-18 in W.P. No.26180 of 2010, would submit that the aforesaid 4 writ petitions are totally misconceived in view of the fact that the norms of the counselling are in total compliance with the guidelines issued by way of G.O. No.354 and under such circumstances, if the counselling is stalled, great prejudice would be caused to all the aspirants in general.

8. I have given my thoughtful consideration to the rival submissions advanced on either side. It is seen that the petitioners, after completing their MBBS Course, were appointed through the TNPSC to the post of Assistant Surgeon in various disciplines of the Tamil Nadu Medical Services and, at the time of their entry into service, CML ranking was assigned to the respective candidates based on the marks secured by them in the Examinations held by the TNPSC. After joining service, they also completed their respective P.G. Courses and subsequently, on pursuing the Higher/Super Speciality Education in various disciplines, they continued for sometime as Assistant Surgeons at various Hospitals in the State of Tamil Nadu and later on, they were posted as Assistant Professors in different Medical Colleges in the State. Since the promotional avenues from the cadre of Assistant Professor were not bright due to lack of promotional opportunities and stagnancy in the cadre system, the TNGDA made a representation to the 2nd respondent, who, after due consideration of the grievance, passed G.O.Ms. No.194, dated 07.07.2009, constituting a committee go into the issue, whereupon, the Committee submitted is recommendation vide letter dated 03.08.2008, based on which, G.O. Ms. No.354, dated 23.10.2009, came to be passed containing necessary guidelines governing promotion.

9. At this juncture, it would be of much relevance to quote below clauses-(i) to (vii) of G.O. Ms. No.354, prescribed in the from of guidelines in respect of 'DIRECTOR OF MEDICAL EDUCATION SIDE":-
(i) The Medical Officers working in the Medical College Hospitals, Institutions and dispensaries under the control of Directorate of Medical Education shall come under the Director of Medical Education Unit.
(ii) The Director of Medical Education will maintain the seniority list of the doctors in this unit and will effect the promotions.
(iii) The Director of Medical Education unit's seniority list will be of two categories (1) General seniority for all those doctors with MBBS and diploma degree. (2) Specialist seniority - Speciality wise seniority for those with master degree and or super speciality degree.
(iv) Both the general seniority and speciality seniority will be based on their seniority in Civil Medical List. After getting the seniority in their speciality, their future promotions would be based on the speciality - specific seniority and they would not have further lien on their seniority in Civil Medical List for the purpose of promotion. However seniority in Civil Medical List would be relevant only for the limited purpose of fixing inter-se seniority relative to those joining their speciality in the Director of Medical Education side. No equivalent promotion can be claimed by any specialist based on inter-se Civil Medical List seniority on account of doctors in some other speciality. Civil Medical List seniority would after that be relevant only to fix the seniority in the speciality specific seniority list, and after that, it is that seniority list which would operate as illustrated in the annexure to this order.
(v) For higher level posts and posts in common pool, the Civil Medical List seniority will be the basis for promotion.
(vi) Entry into Director of Medical Education side against particular vacancy in any speciality should strictly be on the basis of Civil Medical List seniority, provided the person is eligible otherwise.
(vii) Once a person joins any speciality under Director of Medical Education, his inter-se seniority in the speciality would depend on the person's seniority in the Civil Medical List. The Civil Medical List would continue to decide the speciality specific seniority, till the Associate Professor level. However, any person getting promoted under any speciality would not entitle other persons in other specialities to be promoted similarly, if they are senior in the Civil Medical List to such a person. Similarly, any person in any speciality would not be entitled to get a promotion, based on a junior in the same speciality having got such a promotion in the Director of Medical and Rural Health Services, Director of Medical and Rural Health Services, (ESI) and Director of Public Health and Preventive Medicine side."

A close reading of the above clauses would go to show that the G.O. contemplates two categories of seniority concerning the Director of Medical Education Unit ie., (i) General seniority for those Medical Officers with MBBS and Diploma Degree and (ii) Specialist Seniority-Speciality-wise Seniority for those with master degree and or super speciality degree. In that context, the blunt submission of the learned Senior Counsel to the effect that the petitioners, who have acquired speciality specific seniority should be considered on the basis of such seniority for further promotional post of Associate Professor without taking into consideration the original seniority allotted by way of CML ranking, would fall to ground in the light of the G.O. itself which provides necessary guidelines as extracted above. A conjoint reading of clause Nos.(iv) and (vii) would make the position vividly clear that both the general seniority and speciality seniority would be based on their seniority in the CML and further, after getting the seniority in the respective speciality, the future promotions of the persons falling under the latter category would be based on the speciality specific seniority and they would not have further lien for the purpose of promotion. It is further made clear that, at any rate, seniority in the CML would be relevant only for the limited purpose of fixing inter-se seniority relating to those who joined the speciality in the Directorate of Medical Education Side. Moreover, Clause-vii is very specific that once a person joins any speciality under the Directorate of Medical Education, his inter-se seniority in the speciality would depend on the person's seniority in the CML, which would continue to be the criteria to decide the speciality specific seniority till the Associate Professor level.

10. From the above, it could be well discerned that the G.O. is very straight on the point that upto the grade of Associate Professor, while considering the aspect of promotion from Assistant Professor to Associate Professor level, the seniority gained by way of CML Ranking by the candidates, who later acquired speciality specific seniority and serving under the Director of Medical Education, would be definitely taken as the criteria. In other words, when clause Nos.(iv) and (vii) of the Government Order in question are reconciled, the only probable conclusion is that for all purposes of promotion to the post of Associate Professor to which the petitioners are vying, inter-se seniority in the Speciality would undoubtedly depend on the seniority in the CML ranking. That being so, this Court does not find any substance in the claim of the petitioners that the Draft Seniority List drawn, based on CML ranking, is contrary to the norms.

11. As regards the order, dated 09.06.2010, passed in W.P. No.2775 of 2008, taking note of the facts involved therein that promotion was sought for to the post of Professor of Paediatrics and that CML can be looked into only upto the cadre of Civil Surgeon, this Court held that, in such a case, promotion is determined not on the basis of CML ranking but on the seniority in the feeder category. Whereas, in the present case, 'Associate Professor' being a cadre below the top cadre i.e., Professor, the CML ranking cannot be simply brushed aside since the G.O. is very clear on the issue.

12. Coming to the case law of the Hon'ble Apex Court in Challa Jaya Bhaskar's case (cited supra), it was a case on a different issue relating to the methodology adopted by the Andhra Pradesh Government in determining the seniority between teaching and non-teaching posts which previously formed one cadre and the ratio laid down therein is, those belonging to the non-teaching line could not be appointed in the teaching line till they had acquired the PG Course. Moreover, in the said case law, no Government Order providing guidelines to govern the issue, was cited or challenged and considering the facts peculiar to the case, the Hon'ble Court made the observations relevant to that particular case. But, in the present case, the narrow issue that the persons, who have acquired speciality specific seniority, should be exclusively considered under such special ranking by completely ignoring the CML ranking assigned at the time of entry into the service, is something different from the one decided in the above said case law of the Supreme Court; thus, the learned Senior Counsel is not right in endeavouring to apply the ratio laid down therein to the present case which is wholly governed by G.O. Ms. No.349.

13. Moreover, clause (vi) of the Annexure to the letter, dated 31.01.2011, of the second respondent categorically states that all the Medical Officers with minimum of 5 years of teaching experience for MD/MS/MDS or 2 years as Assistant Professor (DM/MCh) in the concerned speciality should attend the counselling and based on vacancy in the concerned speciality, they should take up the vacant Associate Professor Post. It is further provided in clause (x) that the crucial date for calculating the teaching experience will be 15.03.2011. Thus, there may not be any grievance for the petitioners if they possess sufficient teaching experience.

14. To sum up, the core issue raised by the learned Senior Counsel to the effect that the petitioners having acquired speciality specific seniority, such aspect alone should be considered for the purpose of promotion to the higher post of Associate Professor irrespective of the CML ranking gained at the entry level, cannot be legally countenanced since such claim would run contra to the scheme of G.O. No.354. Secondly, the order passed in W.P. No.2775 of 2008 pertains to promotion to the highest post viz., Director and Superintendent equivalent to Professor cadre, for which, the CML ranking cannot be applied, whereas, in the present case, it has to be applied in terms of the G.O. Further, the relevant Government Order was not the subject matter of consideration in the said Writ Petition. Similarly, alike G.O. was not questioned before the Apex Court in Challa Jaya Bahaskar's case and the decision rendered therein is clearly distinguishable on facts as well as on Rules. Further, the apprehension of the petitioners that the norms and guidelines provided in G.O. No.354 may be reviewed, no longer exists in the light of the letter of the 2nd respondent, dated 31.01.2011, in particular clause (vi) and (x) thereof, as adverted to above in the course of this order.

15. For the foregoing reasons, Writ Petition Nos.26180, 26576, 26585 and 27056 of 2010 are dismissed as devoid of any merit. In view of dismissal of those Writ Petitions, there is no need to pass any order or issue direction in W.P. 27217 of 2010 and hence, the same is closed in the light of the observations made above. No costs. Connected Miscellaneous Petitions are closed.

JI.

To

1. The Secretary, Medical Council of India,
Pocket-14, Sector-8, Dwarka Phase-I, New Delhi 110 077.

2. The Principal Secretary to the Government,
Health and Family Welfare Department,
Fort St. George, Chennai 600 009.

3. Director of Medical Education,
Periyar EVR Road,
Kilpauk, Chennai-10.

4. The its Principal Secretary to the Government,
Finance Department, Fort St. George,
Chennai 600 009

DME Warns to Take Action Against Striking Doctors

2011-01-29T18:51:00.000+05:30

From http://www.medindia.net/news/DME-Warns-to-Take-Action-Against-Striking-Doctors-80070-1.htm

http://www.cityjournal.in/Newspaper/20110128/Kerala/Kerala_1.html

THIRUVANANTHAPURAM: As the indefinite strike by post graduate medical students in government medical college hospitals (MCHs) entered the third day yesterday Director of Medical Education (DME) day issued an ultimatum to them to report for duty within 24 hours. In her circular, DME Dr Geetha directed the principals of five MCHs to take action against the PG students if they failed to comply with the order.
The PG students, known as "PG Doctors" in local parlance and whose services are utilised in running OP and casualty wings of the MCHs, had gone on the strike to press their demands including the roll back of the increase in the annual fee from Rs.36,000 to Rs.46,000.
Meanwhile, Health Minister PK Sreemathy said stern action would be taken against the House Surgeons, many of whom stayed away from duty pledging solidarity with the PG Doctors yesterday.
"House surgency meant internship and the internees are not supposed to strike. Action would be taken against them if they continue to stay away" Sreemathi told reporters.
Meanwhile the functioning of five medical colleges in the state was affected yesterday on the strike.
Along with the PG students, house surgeons and senior resident doctors also joined the strike, which had worsened the situation.
Reports from various districts said the out-patients and emergency departments were the most affected as an impact of the strike. The functioning of these departments at the Thiruvananthpuram Medical College was affected. A report from Kottayam said that the strike had affected functioning of the Kottayam Medical College also.
A report from Kozhikode said functioning of Kozhikode Medical College, was badly affected. Sources said rush of patients was curtailed as the local health and community centres stopped referring cases to the premier medical institution. Sources, however, said doctors from other departments and teaching staff were manning departments such as casualty and OP.
Even though Kerala Health Minister PK Sreemathi had held talks with representatives of Kerala Medical Postgraduates Association (KMPGA), which had called for the strike, a solution could not be arrived at.
The KMPGA said the medicos would continue their strike as the minister could not give them any positive decision on any of the issues being raised by them. Other demands of PG doctors include better accommodation facilities at hospitals and enhancement of stipend.

The Implications of Speciality Seniority - Read Carefully

2010-11-24T13:33:00.002+05:30

Serious promotion anomalies in new G.O-- panel senioroty in specialty would prevail over CML seniority. Rural service is ignored

கிராமப்புறத்தில் பணிபுரியும் மருத்துவர்களை பாதிக்கும் விதியை உடனடியாக ரத்து செய்ய வேண்டும்

இதுவரை அமலில் இருந்த விதிமுறை : ஒரு மருத்துவர் முதலில் அரசு பணியில் சேரும் போது கிராமப்புற ஆரம்ப சுகாதார நிலையத்தில் சேர்ந்தாலும், அல்லது அரசு மருத்துவமனையில் மருத்துவக்கல்லூரியில் சேர்ந்தாலும், ஒரே பணி மூப்பு - CML (Civil Medical List) based on TNPSC Seniorty - என்ற விதி இது வரை நடைமுறையில் உள்ளது.

அதாவது அவர்கள் கிராமப்புற மருத்துவமனைகளில் பணிபுரியும் காலகட்டம் அவர்களது பதவி உயர்விற்கு (TNPSC Seniorty) எடுத்துக்கொள்ளப்பட்டது

தற்சமயம் அரசாணை 354 நாள் 23.10.2009ன் படி இந்த விதி மாற்றப்பட்டுள்ளது (பார்க்க படங்கள் 25 - 26 Illustration 4)
எனவே மருத்துவர்கள் ஆரம்ப சுகாதார நிலையங்களில் பணிபுரியும் காலகட்டமும், அவர்கள் பணியில் சேரும் போது உள்ள CML சீனியாரிட்டிக்கும் மதிப்பிலை என்று ஆகிறது now the time spend by a medical officer in PHC is totally wasted

அவர்கள் மருத்துவக்கல்லூரியில் உதவிப்பேராசிரியராக பணியில் சேரும் நாள் மட்டுமே அவர் பேராசிரியராவதற்கு தகுதி என்றாகிறது

கிராமங்களில் 3 முதல் 4 வருடம் பணிபுரிந்து அதன் பிறகு பட்ட மேற்படிப்பு படிக்கும் மருத்துவரை விட கிராமப்புறங்களில் ஒரு நாள் கூட பணிபுரியாதவர் சீனியாரகும் அவல நிலையை இந்த ஆணை உருவாக்குகிறது

இந்த விதி உடனடியாக ரத்து செய்யப்பட வேண்டும்.

உதாரணமாக 2006 வரை கிராமப்புறங்களில் சேர்ந்தவர்கள் (ஒப்பந்த அடிப்படையில் சேர்ந்தவர்கள் உட்பட) இது வரை யாரும் படித்து முடிக்க வில்லை. இவர்கள் அனைவரும் படித்து முடித்து மருத்துவக்கல்லூரிகளில் சேர்வது 2013க்கு பிறகு தான்ஆனால் 2007 முதல் 2013 வரை படிக்கும் non service pg மருத்துவர்கள் இவர்களை விட சீனியாரும் வகையில் இந்த ஆணையில் விதி உள்ளது. இது கிராமப்புறங்களில் பணிபுரியும் மருத்துவர்களை பாதிக்கிறது.

இந்த புதிய விதியினால் இனி வரும் காலங்களில் கிராமப்புறங்களில் பணிபுரிய மருத்துவர்கள் விரும்பாமல் நேரடியாக மருத்துவக்கல்லூரியில் சேரவே விரும்புவார்கள்.

பல வருடங்களுக்கு முன்னர் இருந்தது போன்ற நிலை ஏற்பட வாய்ப்பு உள்ளது

எனவே இந்த புதிய விதியை உடனடியாக ரத்து செய்து, தகுதி இருப்பின், அனைத்து பதவி உயர்வுகளும், CML மூப்பு அடிப்படையிலேயே வழங்கப்பட்ட வேண்டும் என்றும் அனைத்து seniority panelகளும் CML சீனியாரிட்டியின் அடிப்படையிலேயே இருக்க வேண்டும் என்றும் மாற்றப்பட வேண்டும்

--

ILLUSTRATION 1

DOCTOR	A	B
DATE OF APPOINTMENT	1/4/2003	1/4/2009
QUALIFICATION ON APPOINTMENT	MBBS	M.D
COMPULSORY RURAL SERVICE DONE BEFORE DOING P.G	4 YEARS	NIL
DATE OF QUALIFIED P.G COURSE	1/4/2010	1/4/2009
TOTAL SERVICE AS ON 1/10/2010	7 YEARS	1 YEAR
PROMOTION TO SAP AS PER MCI	2015 TOTAL SERVICE 12 YEARS	2014 TOTAL SERVICE 5 YEARS
PROMOTION TO ASS-P AS PER MCI	2019 TOTAL SERVICE 16 YEARS	2018 TOTAL SERVICE 9 YEARS
PROMOTION TO PROF AS PER MCI PAY BAND 4	2021 TOTAL SERVICE 18 YEARS	2020 TOTAL SERVICE 11 YEARS

ILLUSTRATION 1

1. THE JUNIOR DOCTOR B WHO HAD NOT SERVED IN RURAL AREAS PHC/GH EVEN FOR A SINGLE DAY AND ALSO JUNIOR TO DOCTOR A BY 7 YEARS GETS ALL PROMOTIONS BEFORE DOCTOR A AND HE IS ALWAYS ADMINISTRATIVE SUPERIOR.

2. DOCTOR B ENJOYS THIS PRIVELAGE BECAUSE HE WAS APPOINTED DIRECTLY TO DME SIDE WHILE THE SERVICE OF 7 YEARS PUT IN BY DOCTOR A IS NOT CONSIDERED AT ALL FOR PROMOTION AS DOCTOR A COMES TO DME SIDE LATER.

3. DOCTOR A PAYS THE PRICE FOR UNDERGOING COMPULSORY RURAL SERVICE BEFORE ENTERING P.G AND THUS HIS SERVICES ARE NOT COUNTED FOR PROMOTION.

4. DOCTOR A GETS PAY BAND 4 IN 18 TH YEAR OF SERVICE WHILE DOCTOR B THOUGH JUNIOR BY 7 TEARS GETS PAY BAND 4 AT 11TH YEAR OF SERVICE ITSELF

ILLUSTRATION II

DOCTOR	A	B
APPOINTMENT	1/1/2001	1/10/2008
QUALIFICATION ON APPOINTMENT	M.D	M.D
DEPARTMENT OF 1ST APPOINTMENT	PHC/GH	NO
TOTAL SERVICE IN NON DME SIDE RURAL AREA	8 YEARS UP TO 2009	NIL
DATE OF START OF SERVICE IN DME	2009 TOTAL SERVICE 8 YEARS	2008 TOTAL SERVICE NIL
SENIOR ASSIST PROFESSOR	2014 TOTAL SERVICE 13 YEARS	2013 TOTAL SERVICE 5 YEARS
ASSOCIATE PROFESSOR	2018 TOTAL SERVICE 17 YEARS	2017 TOTAL SERVICE 9 YEARS
PROFESSOR PAY BAND 4	2020 TOTAL SERVICE 19 YEARS	2019 TOTAL SERVICE 11 YEARS

ILLUSTRATION 2

1. DOCTOR A AND B ARE QUALIFIED M.D SPECIALISTS ON THEIR DATE OF APPOINTMENT ITSELF

2. DOCTOR A SERVED IN RURAL AREAS PHC/DMS FOR 7 YEARS BEFORE COMING TO DME SIDE

3. IN DME SIDE THOUGH DOCTOR B IS JUNIOR BY 7 YEARS TO DOCTOR A, HE IS PROMOTED BEFORE DOCTOR A AND IS THE ADMINISTRATIVE SUPERIOR FOR THE REST OF SERVICE. DOCTOR B ENJOYS THIS PRIVELAGE BECAUSE HE WAS APPOINTED DIRECTLY TO DME SIDE WHILE THE SERVICE OF 7 YEARS PUT IN BY DOCTOR A IS NOT CONSIDERED AT ALL FOR PROMOTION.

4. DOCTOR A GETS PAY BAND 4 IN 19 TH YEAR OF SERVICE WHILE DOCTOR B THOUGH JUNIOR BY 8 YEARS GETS PAY BAND 4 AT 11TH YEAR OF SERVICE ITSELF.

ILLUSTRATION III

DOCTOR	A	B
APPOINTMENT	1/1/2001	1/10/2008
QUALIFICATION ON APPOINTMENT	M.D	M.D
DEPARTMENT OF 1ST APPOINTMENT	DME	DME
TOTAL SERVICE IN DME SIDE NOT SAME SPECIALITY AS P.G. QUALIFICATION	8 YEARS UP TO 2009	NIL
DATE OF START OF SERVICE IN DME SAME SPECIALITY AS P.G QUALIFICATION	2009 TOTAL SERVICE 8 YEARS	2008 TOTAL SERVICE NIL
SR ASSIST PROFESSOR	2014 TOTAL SERVICE 13 YEARS	2013 TOTAL SERVICE 5 YEARS
ASS PROFESSOR	2018 TOTAL SERVICE 17 YEARS	2017 TOTAL SERVICE 9 YEARS
PROFESSOR PAY BAND 4	2020 TOTAL SERVICE 19 YEARS	2019 TOTAL SERVICE 11 YEARS

ILLUSTRATION 3

1. DOCTOR A AND B ARE QUALIFIED M.D SPECIALISTS ON THEIR DATE OF APPOINTMENT ITSELF IN DME SIDE.

2. DOCTOR A SERVED IN A DEPARTMENT OTHER THAN HIS SPECIALTY FOR 7 YEARS BEFORE COMING TO HIS SPECIALITY DEPARTMENT

3. IN SPECIALITY DEPARTMENT THOUGH DOCTOR A AND B HAVE SAME PERIOD OF TOTAL SERVICE, DOCTOR B IS PROMOTED BEFORE DOCTOR A AND IS THE ADMINISTRATIVE SUPERIOR FOR THE REST OF SERVICE. HE ENJOYS THIS PRIVELAGE BECAUSE HE WAS APPOINTED DIRECTLY IN HIS OWN SPECIALITY DEPARTMENT IN DME SIDE WHILE THE SERVICE OF 7 YEARS PUT IN BY DOCTOR A THOUGH EQUALLY QUALIFIED, BUT IN OTHER DEPARTMENT IS NOT CONSIDERED AT ALL FOR PROMOTION.

4. DOCTOR A GETS PAY BAND 4 IN 19 TH YEAR OF SERVICE WHILE DOCTOR B THOUGH JUNIOR BY 8 YEARS GETS PAY BAND 4 AT 11TH YEAR OF SERVICE ITSELF

ILLUSTRATION IV

ILLUSTRATION IV

DOCTOR	A	B
APPOINTMENT	1/10/1997	1/10/1997
QUALIFICATION ON APPOINTMENT	MBBS	MBBS
DEPARTMENT OF 1ST APPOINTMENT	DPH	DPH
P.G. QUALIFICATION ( after seving mandatory 2 yrs)	2003	2003
POSTING AFTER COMPLETING PG	PHC	DME
DATE OF START OF SERVICE IN DME SAME SPECIALITY AS P.G QUALIFICATION	2008	2003
SR ASSIST PROFESSOR	2013	2008
ASS PROFESSOR	2017	2012
PROFESSOR PAY BAND 4	2019	2014

ILLUSTRATION 4

1. DOCTOR A AND B ARE JOIN IN PHC WITH COMPULSORY RURAL SERVICE OF 2 YEARS BEFORE JOINING PG.

2. BOTH JOIN PG IN THE SAME YEAR

3. DOCTOR A IS POSTED IN A PHC AFTER PG WHEREAS DOCTOR-B IS POSTED IN DME SIDE IN THE CONCERNED DEPARTMENT.

4. DOCTOR A JOINS DME SIDE 5 YEARS AFTER DOCTOR B

5. DOCTOR B GETS PAY BAND 4 FIVE YEARS PRIOR TO DOCTOR A, EVENTHOUGH BOTH THE DOCTORS HAVE JOINED SERVICE, COMPLETED POST-GRADUATION SIMULTANEOUSLY.

CET for Medical Admission WRIT PETITION (CIVIL) NO(s). 380 OF 2009

2010-09-17T00:41:00.001+05:30

1

ITEM NO.8 COURT NO.3 SECTION X

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 380 OF 2009

SIMRAN JAIN & ORS. Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

(With appln(s) for directions, impleadment/directions)
WITH W.P(C) NO. 238 of 2010
(With appln.(s) for directions and office report)
W.P(C) NO. 417 of 2009
(With appln.(s) for directions and office report)

Date: 13/08/2010 These Petitions were called on for hearing
today.

CORAM :
HON'BLE MR. JUSTICE R.V. RAVEENDRAN
HON'BLE MR. JUSTICE H.L. GOKHALE

For Petitioner(s) Mr. Annam D.N. Rao,Adv.

Mr. Rajesh Mahale,Adv.
Mr. Shivendra Dwivedi,Adv.

For Respondent(s) Mr. P.P. Malhotra,ASG
Mr. Rashmi Malhotra,Adv.
Mr. Anand Verma,Adv.

Mr. Rishi Malhotra,Adv.
Mr. D.S. Mahra ,Adv

(For State of M.P.) Mr. Vikas Upadhyay,Adv.
Mr. B.S. Banthia,Adv.
Mr. M.P. Singh,Adv.

Ms. A. Subhashini,Adv.

(State of Chhattisgarh)Mr. Atul Jha,Adv.
Mr. Dharmendra Kumar Sinha ,Adv

(For respt. 9 & 10) Mr. Alok Sangwan,Adv.
2

Mr. Devashish Bharuka,Adv.

(For respt. 13 & 14) Mr. R. Gopalakrishnan,Adv.

Mr. S.N. Bhat,Adv.

UPON hearing counsel the Court made the following
O R D E R

Learned Additional Solicitor General for
respondent-Union of India submits that the
Central Government has approved the proposal of
the MCI for amendment of the regulations
relating to courses of graduate and post
graduate students by providing a single
eligibilty-cum-entrance Examination and seeks
three weeks' time to notify it and place it on
record.

Finally, list after three weeks.

(O.P. Sharma) (M.S. Negi)
Court Master Court Master