Medical, Legal, Medicolegal Information for Doctors and Lawyers

BNS 26 and BNS 106 Explained

2024-07-09T11:06:00.002+05:30

Till 1994 Doctors can be punished by 1. Medical Council - Only for Gross Issues 2. Employer (Private Hospital or Govt) No other person can enquire or punish This was the situation

So There were no cases filed under 304 A for what happened during treatment But The Inclusion under consumer courts opened flood gates Once it was told that consumer court can enquire, Police also too the power to enquire and filed under 304 A Till that time There were no arrests / remand for 304A Even Drivers used to be booked and then let out in "Station Bail" (Court Bail was not even needed) Only after then started arresting doctors under 304 A, they started arresting drivers too -- So When we demanded to exclude healthcare from consumer courts Union Govt accepted They even proposed the draft bill But it was opposed by few perverts They said when there is criminal liability, how can you remove consumer liability So The to Excluse Medical Treatment from Consumer Courts, you need to exclude Medical Management from Police Stations too To Exclude Medical Treatment from 304A You need to differentiate between Medical Treatment and other Issues So They have differentiated in New Law 106 This is the first step Section 106 of The Bharatiya Nyaya Sanhita (BNS): Causing death by negligence. (1) Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine. Explanation.— For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act. (2) Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine. There are lots more steps involved, and next, 106 will be amended to remove the punishment clause Next Doctors will be excluded from Consumer Courts. Supreme Court has already asked for review of the old judgement (please see https://www.livelaw.in/supreme-court/judgment-bringing-doctors-under-consumer-protection-act-requires-reconsideration-supreme-court-257852 ) Please remember that this mess has been created over 3 decades and cannot by undone on one day. We need to untie each knot one by one Please also look at BNS 26. Act not intended to cause death, done by consent in good faith for person's benefit. Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. Illustration : A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence So Doctors, Be Calm. Your Protection has been already included in Black and White As long there is a consent, Section 26 of BNS Applies. Article 106 is only when there is no consent So There is no point in shouting against Union Govt All you need to do is to Ask your state Governments to order the DGP to write to Police to invoke BNS Sec 26 whenever there is a consent. And Read BNS 26 again, the consent may be express or implied Tagging @bijlanirajesh sir and @DrDhruvchauhan Sir who have been discussing this Also Tagging @docbhooshan sir for his efforts earlier regarding this issue.

How is should a doctor explain to a patient

2018-04-17T18:34:00.003+05:30

http://www.thehindu.com/news/cities/Delhi/consumer-panel-orders-hospital-to-pay-5-lakh-for-medical-negligence/article23497338.ece Consumer panel orders hospital to pay ₹5 lakh for medical negligence Commission says ‘informed consent’ to proposed treatment mandatory The State Consumer Disputes Redressal Commission in Delhi has directed Indraprastha Apollo Hospitals to pay ₹5 lakh as compensation to a petitioner for alleged medical negligence. Directing the hospital and the treating doctor to jointly pay the sum, the commission held that “informed consent [to proposed treatment] is mandatory”, which the hospital failed to do. The petitioner, challenging a district forum order that held the hospital guilty of “deficiency in services and not medical negligence”, had sought compensation of ₹50 lakh. The petitioner said that his 23-year-old daughter was admitted to the hospital in 2004 after a severe bout of diarrhoea but was diagnosed with an autoimmune disease, where healthy tissues are mistakenly attacked by the immune system, four days later. In the complaint against the hospital, the petitioner alleged that his daughter died after the hospital carried out a blood transfusion despite the “patient being in good condition”. ‘Overdose of steroids’ “The complainant levelled allegations that transfusion of blood to the patient resulted in an overdose of steroids. The complainant further submitted that the patient was absolutely fit when he requested the doctors to discharge her. Contention of the complainant is that further transfusion of blood led to unconsciousness from which the patient never recovered,” read the allegations as noted by the State commission. Complicated case Contending allegations that the hospital had tried to “grab money”, the respondents, including the doctor who treated the patient, argued that “it was a complicated disease and could not have an on-spot diagnosis without referring to a stringent battery of tests. There was no contradiction to blood transfusion. Her condition warranted life-saving measures and steroids needed to be given”. Referring to the report submitted by an expert committee, which spoke of a “communication gap between the hospital and the petitioner”, the State Consumer Disputes Redressal Commission held: “No record shows whether the patient or her attendants were disclosed information related to diagnosis of the disease, nature of proposed treatment, potential risk of the treatment and consequences of the patient refusing the suggested line of treatment. All these things are fundamental requirement of law.”

Eye Surgeon Punished for No Fault of his

2018-04-12T15:45:00.000+05:30

1 (FA/14/59) STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA, MUMBAI FIRST APPEAL NO.FA/14/59 (Arisen out of Judgment and order dated 27/08/2013 passed by Ld. Addl.Mumbai Suburban District in consumer complaint No.531 of 2006) Shri.Gopal Joshi R/at-Jeevaram bhawan, 4 th floor, B/46, R.R.T Road, Mulund (W), Mumbai 400 080. Appellant(s) Versus 1.Dr.Ashlesha Gala Netra Jyot, Eye Care Centre, 206, Jai Commercial Complex, At the Junction of M.G.Road & S.L.Road, Opp.Hotel Gurukrupa, Mulund (W), Mumbai 400 081. 2.Dr.Hemant Thakkar 1 st Navghar Lane, Mulund (E), Mumbai 400 081. Respondent(s) BEFORE: Hon’ble Mr.Justice A.P.Bhangale, President Hon’ble Dr.S.K.Kakade, Member PRESENT: For the Appellant(s): Advocate Shri.T.S.Shilotri is present with authority letter from Advocate Shri.Mangesh D.Nalavade For the Respondent(e) : Advocate Shri.Ajay Pawar is present for respondent No.1. None present for respondent No.2. ORDER Per: Hon’ble Mr.Justice A.P.Bhangale, President [1] Heard submissions. By present appeal, appellant has challenged validity and legality of the impugned Judgment and Order dated 27/08/2013 2 (FA/14/59) passed by Ld. Addl. Mumbai Suburban District in consumer complaint No.531 of 2006 whereby the consumer complaint was dismissed. Brief facts appears as underThe complainant is resident of Jeevram Bhavan, 4th floor, B/46, R.R.T.Road, Mulund (W), Mumbai 400 080 had approached his family doctor, Dr.Hemant Thakkar due to problem in his eye. According to Dr.Thakkar complainant need to undergo Cataract operation. He advised him to approach Dr.A.M. Gala who at Netrajyot Eye Care Centre, 206, Jai Commercial Complex, Mulund (W), Mumbai 400 080. Thus, on 09/08/2005 Dr.Gala had advised the complainant to undergo Cataract operation. He was initially examined and it was decided to hold operation on 12/08/2005 at 8 a.m. The eye operation was conducted and the patient was discharged at evening on the same day. The complainant thereafter complained of cornea swelling to his left eye and ultimately lost his eye sight of left eye. Though the complainant had used eye drops as prescribed he was referred to Dr.Nikunj Shah and Dr.Nikhil Gokhale by Dr.Gala. The two doctors to whom patient was referred opined that there was injury to retina of the complainant and complainant had to undergo another operation on left eye on 02/09/2005. According to the complainant, the operation had failed and complainant lost his eye sight of left eye. Further according to complainant Dr.Gala ought not to have referred the complainant to Dr.Nikunj Shah and Dr.Vatsal Parekh. Complainant alleged that there was medical negligence by Dr.Gala and Dr.Thakkar as well. [2] According to opponent No.1-Dr.Gala, patient had undergone operation at the hands of Dr.Parekh regarding injury to cornea and therefore he is not concerned with that operation. He also disputed his liability about the cataract operation or failure thereof. According to Dr.Gala it was a minor operation and was performed successfully and later on when injury to 3 (FA/14/59) cornea was complained of he had referred the patient to the competent doctors. [3] We have considered the reasons stated by the Ld.Forum below in details regarding the observations as to the facts and medical negligence including the ruling of Hon’ble Supreme Court in Civil Appeal No.3541 of Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009 2009 CPJ page 32 (SC. [4] It is true that medical practitioner would fail below the standard of his reasonable competency conduct if there are want of precautions to perform the operation or surgery. In the present case, we do not find any evidence from the opponent No.1 i.e. Dr.Gala as to his initial observation of the patient (complainant). Standard of reasonable care and precaution on the part of surgeon before performing operation necessarily and ought to be supported by documents such as Fitness Certificate of the patient to undergo surgery or operation and Consent Form at pre-operative stage indicating that the patient had given his free consent for undergoing the surgery. If according to Dr.Gala Cataract surgery was minor operation he should have taken precaution that patient is advised preliminary medical examination indicating that patient did not suffer from ailments like high B/P, Diabetes etc. or if he is suffering the necessary medical test to be performed and it ought to be ensured from the competent examining doctor that the patient is fit for undergoing surgery as contemplated in the case of complainant. We do not find any evidence in this regard nor we find that Ld.District Forum performed its duty to enquire as to whether surgeon concerned had insisted upon Fitness Certificate of the patient or whether patient had given his free consent to undergo the surgical operation. Apart from this, considering the judicial precedent relied upon on behalf of the opponent in First Appeal No.956 of 2006 decided by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur between Mrs.Damayanti Devi v/s. 4 (FA/14/59) Dr.Indu Arora decided on 05/06/2009 and the principles of medical negligence, we are not questioning the requisite professional skill of Dr.Gala nor we impute professional negligence upon him on account of performance of operation in the facts of the case as he is post graduate in surgery and experienced Ophthalmologist. Our observations are limited to failure to take precautions on account of not insisting upon Fitness Certificate or Consent Form in writing from the patient at pre-operative stage since in the present case patient had approached Dr.Gala on 09/08/2005 and was called on 12/08/2005 at 8 a.m. for operation of the cataract. There was sufficient time gap during which complainant could have been medially examined in respect of ailments which he suffered and regarding fitness of the complainant to undergo the surgical operation in respect of cataract of his left eye. In our view, had these precautions been taken by Dr.Gala then he may have been exonerated from the liability. In absence of these precautions Ld.District Forum failed in its duty to address itself on these questions and simply considering the other facts proceeded to dismiss the complaint. Our attention is also invited to the Article -‘Medical tests before eye surgery- when you need them – and when you don’t ’ published by American Academy of Ophthalmology in the year 2017 in the periodical ‘Choosing wisely (an initiative of the ABIM Foundation). It cannot be disputed that cataract surgery in modern days is low risk eye surgery as it is usually done with local anesthesia to numb the eye and then medicines are prescribed for relaxation of the patient. However, observation is mentioned as, ‘Even though eye surgery is very low risk, many healthy people get a routine set of tests before their surgery. In these cases, the tests don’t change the surgery or make it safer.’ The article further reads as, ‘You may need an EKG if you have heart disease or symptoms such as chest pain or shortness of breath. If you have diabetes, you will probably need a blood test to make sure it is under control.’ These observations are clearly indicative of precautions that need to be taken before any eye 5 (FA/14/59) surgery is performed in cases of patient suffering from ailments such as hypertension or diabetes. Necessary medical tests are necessary so that the competent doctor examining can certify that patient is fit for surgery. Furthermore, surgeon shall also take precaution to obtain free consent of the patient or close relative in writing before he can be subjected to surgery. For want of these precautions only we partly allow this appeal irrespective of the failure of the surgery. We direct the appellant Dr.Ashlesh M.Gala to pay sum of Rs.25,000/-(Rupees Twenty Five Thousand only) as compensation inclusive of charges for surgery to be refunded in the sum of Rs.15,000/- (Rupees Fifteen Thousand only). We also direct litigation costs in the sum of Rs.5000/- (Rupees Five Thousand only) shall be paid to the complainant. The amount shall be paid within one month from the date of this order failing which it shall carry interest @ 9% p.a. from the date of order till realization. Impugned order is set aside. Appeal is partly allowed accordingly. Certified copy of this order be supplied to both the parties. Pronounced on 23 rd March, 2018. [JUSTICE A.P.BHANGALE] PRESIDENT [Dr.S.K.KAKADE] MEMBER rsc --

http://www.dnaindia.com/mumbai/report-doctor-penalised-for-improper-eye-surgery-2602557 The Maharashtra Consumer Dispute Redressal Commission has recently pulled up a Mulund-based ophthalmologist, Dr Ashlesh Gala, for a botched up cataract surgery which resulted in the loss of vision for one of his patient. The forum held that the doctor failed to take the preliminary precautions of conducting the mandatory medical tests for the consumer which resulted in vision-loss in one eye. The commission has asked the doctor to pay a penalty amount of Rs 45,000 toward the complainant for his mistake. However, the patient, Gopal Joshi, is unhappy with the order and has decided to take the matter to the National Commission. The commision's order read,"It cannot be disputed that the cataract surgery in modern day is a low-risk eye surgery as it is usually done with local anesthesia to numb the eye and then medicines are prescribed for relaxation of the patient. However, even though eye surgery has very low risk, many healthy people get a routine set of tests done before the surgey is conducted. In these cases, the tests don't change or make it safer but helps controlling blood pressure and sugar during the time of the surgery." Meanwhile, Joshi's lawyer, Mangesh Nalawade, while speaking to DNA said, "Our plea was on the grounds of negligence as the medical papers say that there was a cornea tear of my client which lead to loss of his vision in one eye. But, the aspect of negligence was not considered by the Commission. We are definitely approaching the National Consumer Dispute Redressal Commission and filing an appeal." -- http://www.choosingwisely.org/patient-resources/medical-tests-before-eye-surgery/ If you’re going to have cataract surgery or another eye surgery, you may be given some medical tests first. For example, you may have an electrocardiogram (EKG) to check your heart, or a complete blood count (CBC) to check for anemia, a low amount of red blood cells. These tests may make surgery safer. For example, they may find medical problems that lead to a delay or change in your surgery. But most people don’t need these tests before eye surgery. Here’s why: The tests usually aren’t helpful for low-risk surgery. Generally, cataract and other eye surgeries have very low risks of complications or problems, such as heart attacks. There really isn’t anything doctors can do to lower the risk any further. Eye surgeries do not take long, and they use only a local anesthetic to numb the eye, often with a medicine to relax you. Even so, many healthy people get a routine set of tests before eye surgery. In these cases, the tests don’t change the surgery or make it safer. They can lead to more tests. The tests themselves are very safe, but they can cause false alarms. This can lead to anxiety and more tests. And they can needlessly delay your surgery. For example, one test may be followed up with a repeat test, an ultrasound, a biopsy, or a test that exposes you to radiation, such as an X-ray or CT scan. The costs can add up. Your health plan may not pay for the tests if you do not have a specific medical need for them. If this happens, you may need to pay for them. It could cost between $25 and $50 per test, according to HealthcareBlueBook.com. So when are the tests needed? You may need the tests if you have certain kinds of health conditions or illnesses. For example, you may need an EKG if you have heart disease or symptoms such as chest pain or shortness of breath. If you have diabetes, you will probably need a blood test to make sure it is under control. Based on the test results, your doctor may need to change your surgery or anesthesia. You may need special care during or after the surgery. Or you may need to postpone the surgery until the problem is treated or controlled. This report is for you to use when talking with your health-care provider. It is not a substitute for medical advice and treatment. Use of this report is at your own risk. © 2013 Consumer Reports. Developed in cooperation with the American Academy of Ophthalmology. 04/2013

PGI Chandigarh: doctors told to summon security before announcing patient's death

2018-03-27T08:01:00.001+05:30

From https://www.nyoooz.com/news/chandigarh/1066322/chandigarh-pgi-doctors-told-to-summon-security-before-announcing-patients-dea/ Taking strict note of manhandling of doctors at its emergency wing, Post-Graduate Institute of Medical Education and Research (PGIMER) director has told resident doctors to inform security personnel first before breaking the news of a patient’s death to attendants. Dr Jagat Ram has also ordered a quick-response team (QRT) of 12 security guards to keep an eye on untoward incidents threatening the safety of doctors in the emergency wing. “Next week a meeting of resident doctors, representatives of hospital administration and security wing will be called to finalise the new measures,” a senior administrative officer, not wishing to be named, said. The child died on Wednesday night, following which his family started hurling abuses at the female doctor and broke a machine,” said Dr Sandeep Tula, vice-president, Association of Resident Doctors (ARD). We have filed a police complaint against the family.”“For their safety, I have told all resident doctors working in the emergency to inform the QRT before informing attendants about the death of a patient. Taking strict note of manhandling of doctors at its emergency wing, Post-Graduate Institute of Medical Education and Research (PGIMER) director has told resident doctors to inform security personnel first before breaking the news of a patient’s death to attendants. Dr Jagat Ram has also ordered a quick-response team (QRT) of 12 security guards to keep an eye on untoward incidents threatening the safety of doctors in the emergency wing. This team will be in addition to the 40-odd security guards posted in the ward. On the night of March 21, attendants of a 13-year-old critically ill boy created ruckus inside the emergency, hurled abuses at a female doctor and broke a dialysis machine costing Rs 21 lakh, after the doctors could not save the child. “The boy had end-stage cancer. For three days, the doctors had been informing the father that bone marrow transplant was the only solution, but his family could not afford the expenses. The child died on Wednesday night, following which his family started hurling abuses at the female doctor and broke a machine,” said Dr Sandeep Tula, vice-president, Association of Resident Doctors (ARD). Attacks on doctors March 21: Attendants hurled abuses, threatened a resident doctor after she could not save a child suffering from end-stage blood cancer May 2017: A resident doctor was slapped by a patient’s attendant in the emergency medical OPD as the doctor failed to save the patient August 2016: A resident doctor was manhandled by a patient’s attendant in emergency Dr Jagat Ram said, “This behaviour is highly inappropriate and will not be tolerated. The doctors give their best to save lives and do not deserve this treatment by attendants.

Court Fined Doctors Rs. 40 Lakhs for Conservative Management

2016-01-22T18:00:00.002+05:30

If Doctor wants to try non surgical methods, but if patient develops complications, Consumer Courts Fine Doctors

All those who say that doctors are operating without waiting, please read this

உடனடியாக அறுவை சிகிச்சை செய்யாமல், நோயாளிக்கு பிரச்சனை வந்தால் நுகர்வோர் நீதிமன்றங்கள் மருத்துவருக்கு 40 லட்சம் அபராதம் விதிக்கின்றன

மருத்துவர்கள் தேவையில்லாமல் அறுவை சிகிச்சை செய்கிறார்கள் என்று கூறுபவர்களின் பணிவான கவனத்திற்கு

The Delay in diagnosis and treatment made the patient to lose her life, which in turn costed Doctors and Hospital hefty sum of Rs.25 lakhs towards compensation + Rs.15 lakhs towards mental pain & agony, totalling to Rs.40 lakhs with interest !!!

The commission gave an interesting example to explain the issue of 1 % risk of serious harm.
“suppose that, an aeroplane on a long-haul flight developed engine trouble while in mid-air, this gave rise to a one percent risk that the plane would crash and that risk would not increase for the next 12 hours but remain constant”.
“A reasonable pilot, knowing this, would not wait for 12 hours to expire but would land his plane as soon as reasonably practicable.”

(MRS.) MANIKA ROY & ANR V/s. DR. B.L. CHITLANGRA, Bombay Hospital & ors. CC no.42/2003, decided on 5th January, 2016, by the National Commission.

Facts in nutshell:
Ms. Kaberi Roy, 29, (since deceased, referred herein as a “patient”), daughter of complainants was initially diagnosed by their family physician as the patient of ‘acute appendicitis’ and advised her for immediate surgery and therefore the complainants admitted her in Bombay Hospital at 10.30 PM 0n 27.06.2002.The casualty Medical Officer examined her and diagnosed it as a case of acute appendicitis. The routine check-up also indicated severity of appendicitis and possibility of perforation (leucocytes count (17700 per cmm). The Neutrophils were 87%). It was alleged by the Complainants that the Opponent Doctors, senior surgeons failed in their duty to examine the patient immediately during emergency as Doctors came to examine the patient on next day i.e. 28.06.2002 at 11 AM. I.e. almost after more than twelve hours of her emergency admission. The Surgery turned to not fruitful and it was alleged that the no proper surgical procedure was selected, there was septicaemia, no post-iop proper treatment and as a result patient died within two days of hospitalization, and within 36 hours of her operation.

Court Fined Doctors Rs. 40 Lakhs for Delay in Patient Diagnosis and Treatment

The Commission heard the parties at length, studied the medical records and medical literature…
The commission found discrepancy in Medical Record and the statements of Doctors especially regarding removal of Gangrenous fluid. It further observed that the departures of the Opp. Doctors individually and together in the treatment and diagnosis of the patient led to a delay in the patient’s surgery, and were a proximate cause or substantial cause contributing to the septic emic shock and death. The patient was admitted in late night, thus emergency USG scan should have been sought on an urgent basis to rule out the causes of acute abdomen. The opponent Hospital is one of tertiary care hospital and the highest care is expected than from other hospitals & had the USG scan been obtained and interpreted promptly, these complications might have been avoided. If that had happened, patient could have been operated expeditiously as an emergency basis, further observed by the commission. It also held that an appropriate standard of care had not been met as surgery took place after 17 hours.

Court Fined Doctors Rs. 40 Lakhs for Delay in Patient Diagnosis and Treatment

IT relied by the Landmark judgment of Apex court of Dr. Laxman Balakrishna Joshi Vs. Dr. Trimbak Bapu Godbole AIR 1969 SC 128, which laid down that a doctor when consulted by a patient, owes him certain duties, namely,
(a) a duty of care in deciding whether to undertake the case;
(b) a duty of care in deciding what treatment to give; and
(c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.

Court Fined Doctors Rs. 40 Lakhs for Delay in Patient Diagnosis and Treatment

This may be the first case of this year wherein the Doctors and Hospital were held negligent and ordered to pay such heavy compensation!! To learn from the mistakes of others, is the crux of this case!!

http://desimedicos.com/court-fined-rs-40-lakhs-for/
https://www.facebook.com/spine.brain.surgeon/posts/10153949284609828

Define Medical Negligence

2016-01-10T16:03:00.004+05:30

From https://www.facebook.com/spine.brain.surgeon/posts/10153919623829828 << "What I think is that the ambit and scope of term 'medical negligence' should be defined properly. Complications are inherent to the science of medicine also, as it's not a 100 per cent fool-proof science," Dr Mundada said adding that inability to make the patient well is not and should not be made equivalent to medical negligence. >> http://www.newindianexpress.com/nation/Eyebrows-Raised-Over-NHRC-Hearing-on-Medical-Negligence-Cases/2016/01/07/article3216077.ece

Medical officer gets jail over waste disposal

2014-11-16T06:29:00.001+05:30

From http://www.asianage.com/india/ex-medical-officer-gets-jail-over-waste-disposal-005 In a landmark judgment, the sub-divisional judicial magistrate court Jagatsinghpur on Wednesday awarded six-month imprisonment to former additional district medical officer Nityananda Panda for failure in disposal of hospital waste and violation of Environment (Protection) Act, 1986. In his verdict on Tuesday, the SDJM Alekh Kumar Pradhan also imposed a penalty of `50,000 on Panda and further one-month in prison in case he fails to deposit the penalty. Besides, the court also slapped a penalty of `50,000 on the authorities of the district headquarters hospital. The directive of the court came at the end of hearing in a criminal case filed by the Orissa State Pollution Control Board against Dr Panda. It may be mentioned that the Orissa high court in 2009 had asked the OSPCB to register criminal cases against the medical authorities for improper waste disposal management in gross violation of Environment (Protection) Rules. Acting on the directive of the court, the board had given provisional authorisation for one year to the Jagatsinghpur hospital for disposal of waste. However, the board during its inspection of the hospital on April 4, 2010, found gross irregularities in waste management by the hospital authorities. Taking strong exception to the lackadaisical attitude of the hospital authorities, the board had issued a show cause notice to them on May 1, 2010.

Private college hospitals can do autopsies, says court

2014-11-16T06:28:00.002+05:30

http://www.deccanchronicle.com/141102/nation-current-affairs/article/private-college-hospitals-can-do-autopsies-says-court Chennai: The Madras high court has suggested to the state government to explore the feasibility of permitting private medical college hospitals to perform autopsies on unidentified bodies, which will relieve the congestion in mortuaries in government hospitals. A division bench comprising Justices S. Rajeswaran and P. N. Prakash gave the suggestion while issuing a set of directions to authorities relating to man missing cases and unidentified bodies. Citing an order of the Karnataka government relating to conducting of post-mortem, the bench said, “Due to paucity of post-mortem doctors in government hospitals, post-mortem on unidentified bodies is not done immediately and preference is given only to murder cases, accident cases and in cases where the body is identified. In our opinion, a solution to this problem can be found, if private medical college hospitals in the state are given permission to conduct post-mortem as done in the state of Karnataka”. In Tamil Nadu, there were 19 government medical colleges and 26 private medical colleges, of which 11 were deemed universities. At present, students studying in these private medical colleges were sent to the government medical college hospitals for getting training in autopsy, the bench pointed out. To begin with, on a trial basis, if the government grants permission to these private medical colleges to perform autopsies on unidentified bodies, it will relieve the congestion in the mortuaries in the government hospitals. The orthodox may raise their eyebrows and ask anxiously “Will not these private doctors become amenable to influence and issue bogus post-mortem certificates?” But, the situation seems no better in the government hospitals either. “If videography of all post-mortems, whether done in government hospital or private hospital is made compulsory, such misadventures can be curtailed”, the bench added. The bench said an apprehension was voiced that the state will not be able to take any action against a doctor of a private medical college, if the post-mortem certificate given by him was found to be bogus. It cited various sections under the Indian Penal Code dealing with furnishing false information and causing disappearance of evidence, among others that are to prosecute the doctor. The legislature can also bring in an amendment to the definition of “public servant” found in section 21 of IPC and in section 2 © of the Prevention of Corruption Act, by including “The doctors who perform autopsy at the request of a police officer” so that the doctor can be prosecuted even under the Prevention of Corruption Act, the bench added.

Penalised for Not Giving Doc Rural Service Marks

2014-09-23T23:12:00.003+05:30

From http://m.newindianexpress.com/tamil-nadu/369689

MADURAI:

Pulling up the State Health Secretary and the Secretary of the Medical Selection Committee for not awarding marks to a young doctor for her rural service, thereby denying her an opportunity to pursue postgraduate specialisation course, the Madras High Court bench here imposed a fine of `1 lakh on each of them.

The doctor J Mercy Rumya Florence, an assistant surgeon, was temporarily appointed at a primary health centre in Thulukarapatti in Tirunelveli where she worked for two years and four months. Later, she appeared for an entrance exam in 2012-13, for pursuing postgraduate degree course and scored 63.36 marks. As per the prospectus she was eligible to be awarded one mark for each completed year of Compulsory Rotatory Residential Internship (CRRI) in rural area. However, she was not given the marks on the grounds that it is awarded only for doctors who are in regular service. Justice S Nagamuthu said that due to the careless attitude of the respondents, the petitioner had lost her right to acquire a PG seat and she deserved to be compensated for it.

Letter 3655 dated 27.03.2014 : Permission for 10 A 1 Doctors : Leave Regularised

2014-05-21T12:52:00.003+05:30

GO No 254 dated 30.10.2013 : Time Bound Promotion in Tamil Nadu Medical Services

2014-05-21T12:48:00.000+05:30

Govternmen Doctor to Pay Rs 5,000 for Illegal Aid to Police

2014-01-24T12:06:00.001+05:30

Dr S Rajendran, presently working As Chief Medical Officer, Government Hospital in Jayankondam in Ariyalur district, is directed by the TN State Human Rights Commission to pay a compensation of Rs5,000, for assisting the local police to build up a false case against a villager.

SHRC Acting chairperson Jayanthi, IAS (retired), who gave the direction on Thursday, also directed Kosalraman, presently working as SI, Intelligence section, Tiruchy, to pay Rs25,000 to Abhimannan of Chettithirukonam village in Ariyalur district, for violating his human rights. The State government should pay the entire amount of Rs30,000 to Abhimannan within four weeks and recover the same from the SI and the doctor, the commission said.

According to Abhimannan, one Malar of the village filed a civil suit against him over a property and the same was pending before the Civil Court in Ariyalur. While so, he was picked up by cops on September 28, 2004 and taken to Vikramangalam police station, where he was directed to pay Rs5,000 to settle the dues of the station personnel due to a nearby hotel to favourably settle the civil case. He was abused with filthy language and severely attacked, when he refused to oblige. A false case was registered against him, produced before the local magistrate belatedly and remanded in custody. Abhimannan moved the SHRC with the present complaint.

Passing orders on it, the SHRC observed that the evidence available in the case, coupled with the documents, would show that the complainant was picked up by Kosalraman on September 28, 2004 from his house and was taken to the Vikramangalam Police Station, where he was illegally detained and was shown as arrested only at 2 pm on that day and that he was brutally assaulted by the SI. The doctor has extended all his illegal assistance by filing a false medical certificate.
From http://www.newindianexpress.com/states/tamil_nadu/Govternmen-Doctor-to-Pay-Rs-5000-for-Illegal-Aid-to-Police/2014/01/24/article2016899.ece

Detention of Mentally Ill People in Hospitals - Guidelines for Doctors and Magistrates

2013-12-31T08:28:00.002+05:30

Nathalie Vandenbyvanghe vs The State Of Tamil Nadu on 19 September, 2008 Dated :19..09..2008 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice V. Periya Karuppiah Habeas Corpus Petition No.1041 of 2008 Nathalie Vandenbyvanghe .. Petitioner versus 1. The State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort St. George, Chennai-9. 2. The Commissioner of Police, Chennai City, Chennai. 3. Institute of Mental Health, Rep. by its Director, Kilpauk, Chennai-10. 4. The Inspector of Police, Kottur Police Station. 5. Inspector of Police, Nesamony Nagar Police Station, Kanyakumari District at Nagercoil. .. Respondents - - - - - PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus directing the 3rd respondent to set Mr. Roger Vandenbyvange, a French National, aged about 61 years, at liberty forthwith. - - - - - For Petitioner : Mr. T.R. Rajagopalan, Senior Counsel for Mrs. Pushpa Sathyanarayana. For Respondents : Mr. P. Kumaresan, Addl. Public Prosecutor. - - - - - O R D E R Prabha Sridevan, J. A foreign national came to our country as a tourist, he lost his passport, he could not speak English. He has no mental illness, yet, he was rounded up along with more than 100 persons, and was issued reception orders under the Mental Health Act, 1987. Disturbed that he did not return to his homeland, his daughter filed this habeas corpus petition. 2. The facts are these : The father of the petitioner herein, one Roger Vandenbyvanghe, aged about 61 years, was visiting India to seek the blessings of Matha Amritandamayi. He had a valid passport and visa. His visa was valid upto 8.6.2008. He lost his passport and other travel documents along with his personal belongings, including his clothes. He knew only French language and no other language. He was also unable to communicate with anybody. He was wandering on the roads in Kanyakumari District. He had no money and he had to live seeking alms and that is how he made his survival. When he did not return to his home country beyond the date of expiry of his visa, his daughter was alarmed. When she enquired with the French Embassy, she was informed that her father had been admitted into the Mental Health Institute, Chennai. It came as a rude shock to the petitioner since her father was not a mentally ill person. Therefore, she came to Chennai to take her father back. She made a request to the hospital authorities to discharge her father, but they refused to do so. Her complaint was that her father, was illegally kept in the custody of the hospital authorities. Therefore, she filed this habeas corpus petition. 3. On 21.7.2008, this Court passed an order in this petition and the relevant portions of the said order are extracted below, since we feel it is necessary : "This habeas corpus petition portrays a sad state of affair in handling a foreign national by name Roger Vandenbyvanghe, aged 61 years, who could not have dreamt when he came to India and landed during January, 2008 that his life is going to be miserable at the hands of the police. ... On 9.7.2008, the Inspector of Police, Kottar Police Station surrounded 50 male persons and the Inspector of Police, Nesamony Nagar Police Station surrounded 45 male persons as well as 20 female persons totalling 115 persons and resorted to invoke the provisions of Section 23 of the Mental Health Act, 1987 and a case in Cr.No.800 of 2008 was registered. They made all of them appear before a team of doctors consisting of Dr.Y.Arul Prakash, Assistant Surgeon, Government Medical College & Hospital, Nagercoil and Dr.P.Natarajan, Tutor in Psychiatry, Kanyakumari Government Medical College & Hospital, Nagercoil at Asaripallam on the same day. The French national in question was one among the 115 persons who was produced before the above team of doctors and was certified to be suffering from Bipolar disorder mania and a certificate to this effect was issued by the team of doctors. Likewise, similar certificates were also issued in respect of the remaining 114 persons as well. On the strength of the above certificates, the Inspectors of Police of Kottar & Nesamony Nagar Police Stations made applications before the learned Judicial Magistrate No.II in-charge, Nagercoil, Kanyakumari District to pass reception orders authorising the detention of the French national and other 114 persons as in-patients in the Institute of Mental Health, Kilpauk, Chennai. The said applications were ordered again on the very same day and the reception orders were also served in Form-5. Based on the said reception orders, all 115 persons were brought to Chennai and were admitted in the Institute of Mental Health, Kilpauk, Chennai for further treatment. ... They were brought to Chennai and were admitted in the Institute of Mental Health. The detenu was put on observation for a period of ten days. Ultimately, the Institute of Mental Health found that Mr.Roger Vandenbyvanghe does not exhibit any abnormality or psychopathology during the entire period of ten days observation and the observation report of the Institute of Mental Health, Chennai-10 dated 19.7.2008 reads as under:- "Name Mr.Roger Vawdew Vaughe Age 60 Sex Male IP No.2132/2008 DOA 10.7.2008 Mr.Roger Vawdew Vaughe 60 years old male was admitted in Institute of Mental Health, Chennai-10 along with the group of totally 115 persons through reception order issued by the Judicial Magistrate II, Nagercoil I/c, Kanyakumari District on 10.7.2008. On admission, Mr. Roger Vawdew Vaughe was unclean, untidy, and having an infected ulcer on the outer aspect of the left forearm. Mr. Roger Vandew Vaughe has been under observation for the past 10 days. Detailed Physically examination, mental status examination, blood investigation and psychological testing was carried out. During his stay in the last 10 days Mr. Roger Vawdew Vaughe is behaving well, and he has proper sleep and eats sufficiently. Based on the ward behaviour, physical and mental status examination and investigations, it is opined that Mr. Roger Vawdew Vaughe does not exhibit any abnormality or psychopathology during this period of observation." The manner in which this foreign national had been treated by the police is really disturbing. It is difficult to understand how a prima facie satisfaction could be arrived at by the officers in respect of 115 persons en masse at the same time : "This exposes the psycho-fever of the police to proceed against those who are wandering in the streets to be treated as mentally ill persons disregard of their actual physical and mental condition. We must express our total dissatisfaction over the way by which the entire matter had been handled not only by the police, but also at the level of the doctors and the learned Judicial Magistrate as well." (vide order dated 21.7.2008) The approach of the doctors who were called upon to certify whether these 115 persons deserve to be detained is equally inexplicable : "When 115 persons were surrounded by the police and were produced enmasse to a team of doctors, it is hard to believe whether the doctors have discharged their noble duty by examining all the 115 persons individually and arrived at the conclusion that they are mentally ill persons to be dealt under the provisions of the Mental Health Act. The examination of all the 115 persons and to certify them to be mentally ill persons at a stretch and by issuing a printed form of certificate is either humanly impossible or would be the result of callousness shown against those persons by the doctors." (vide order dated 21.7.2008) The reception orders were passed by the learned Judicial Magistrate en masse too : "On perusal of the records, it is seen that the Magistrate before whom all the 115 persons were produced, at a single stretch, has exercised the power under Section 24 and issued the reception orders. The satisfaction of the Magistrate, in our view, is only mechanical and she has not properly applied her judicial mind to the provisions of the Act." (vide order dated 21.7.2008) In view of the prima facie opinion arrived at with regard to these 115 persons, directions were issued to the Director, Institute of Mental Health, Kilpauk, Chennai to submit a detailed report regarding them. 4. The Additional Public Prosecutor produced the status report filed by the Deputy Superintendent of Police, Nagercoil. According to this, several representations had been received from various social organisations that more than 100 mentally ill persons were wandering in Nagercoil and that their condition was pitiable. Therefore, the District Administration took joint action to produce them before the Judicial Magistrate's Court as per law. It appears that cases were registered based on the representations of the social organisations in Crime No.800 of 2008 under Section 23(3) of the Mental Health Act, 1982 by the Kottar Police Station against 50 male mentally ill persons; in Crime No.405 of 2008 under the same section on the file of the Nesamony Nagar Police Station against 45 mentally ill persons; and in Crime No.18 of 2008 under the same section on the file of the All Women Police Station against 20 female mentally ill persons. The District Administration, therefore, apparently had made arrangements to trim their hair and give them bath and also to provide them new clothes. 125 persons were caught and produced for medical examination based on the order of the Judicial Magistrate. According to the status report, 12 doctors from Kanyakumari Medical College comprising a team evaluated these mentally ill persons and rejected 10 persons as beggars and certified the remaining 115 persons as suffering from mental illness. The status report records that the doctors had to work overtime since they had to examine a large number of persons. It is only after observing the due process of law that they had been transferred to the Institute of Mental Health, Kilpauk, Chennai. According to the status report, the petitioner's father was diagnosed as suffering from Bipolar Disorder Mania. He had escaped from the ward twice and thereafter, he was asserted for mental illness. According to the status report, the said person was inadequately dressed, shabby, talking irrelevantly and was in an abnormal, elevated state of mind with absence of insight. 5. It was repeatedly urged by the learned Additional Public Prosecutor that the reception orders were passed only after due examination of the persons. 6. We are not able to accept this submission. Strictly speaking, when the petitioner's father was restored to her, no further orders were necessary. But, we felt that the treatment of mentally ill persons by the police, doctors and court left much to be desired. That is why the medical report was called for from the Isstitute of Mental health at Chennai.As a sample, we will take the case of the petitioner's father itself. According to the police status report, he was admitted by one Manikandan, Director of a Non Governmental Organisation on 27.5.2008. He absconded, was again admitted by the same person and again he absconded, but subsequently the diagnosis was made that he was suffering from bipolar disorder mania as seen above on 27.6.2008. The medical record of the petitioner's father had been produced and the observation report made on admission by the Civil Assistant Surgeon at the Institute of Mental Health, Chennai would show that the petitioner's father was unclean, untidy and having an infected ulcer on his left forearm. The doctor certified that a detailed physical examination, mental status examination, blood investigation and psychological testing of the said person had been carried out and he was behaving well, "he has proper sleep and eats sufficiently". Based on the ward behaviour, physical and mental status examination and investigations, the doctor at the Institute of Mental Health, Chennai certified that the petitioner's father does not exhibit any abnormality or psychopathology during this period of observation. The psychological report shows that a psycho-diagnostic assessment was made and he talked relevantly and coherently. His attention could be aroused and sustained and there was no evidence of psychosis. Therefore, it is evident that the original assessment diagnosing the petitioner's father with Bipolar Disorder Mania is not supported by the subsequent assessment made. We are not giving any finding on the professional capacity of the doctors at Kanyakumari who diagnosed the petitioner's father as being mentally ill. But, we cannot ignore the manner in which it was done. 125 persons were examined virtually on a single day and therefore, the diagnosis was not the result of a proper psycho-assessment. The reception order passed on such an assessment cannot be a valid one. 7. The Director of the Institute of Mental Health was present in Court on one of the days of hearing and we requested him to furnish information with regard to the number of days taken by the team at the Institute for assessing the mental capacities of the 115 persons who were sent to them and the report filed by him reads as follows : "Submitted by Dr. R. Sathianathan, Director, The Institute of Mental Health, Chennai-10. With reference to the information sought by the Honourable High Court Bench A total number of 115 persons (95 males & 20 females) were admitted at the Institute of Mental Health on 10th July, 2008 though the Reception Order from The Honourable Judicial Magistrate No.II i/c., Nagercoil Kanyakumari District, under Section 23, 24 of Mental Health Act, 1987. At the Institute of Mental Health, a team was constituted comprising of 10 Psychiatrists, 2 Psychologists, 6 Social Workers, 6 Staff Nurses and other Para Medical Staff. The team identified the referred persons based on their identification marks as also examined and screened for physical illnesses such as hypertension, cellulites, ulcers, fractures, leprosy etc. On the subsequent day, a detailed laboratory investigation like blood test, X-ray, ECG, HIV Screening, were carried out. Persons with physical illnesses were referred to other hospitals for appropriate treatment. Simultaneously a detailed Mental Status Examination was carried out over a period of 10 days. These persons were given customized care, following which their personal details were solicited. With the information sought, few of the person's relatives were contacted by the social workers. Out of the 115 persons admitted, a French National was discharged as per the instructions of the Honourable High Court. Another 7 persons were (6 males & 1 female) found to have no gross psychopathology during the observation period. These seven persons were further observed for 10 more days for their ward behaviour and subsequently psychological assessments were done. After an intensive observation and investigation these 7 persons were certified that they did not have any abnormality. The efforts are being taken to reintegrate them back to community through the N.G.O's. The rest of the 107 persons are still under observation and treatment. All the 114 person were placed before the Vistors Committee on 30th July, 2008. Dr. R. Sathianathan, 16 August, 2008." Therefore, over a span of ten days, the persons were kept under observation and a mental status examination was done and out of these 115 persons, seven were certified as not having any abnormality and other 107 persons are still under observation. The Director IMH Chennai, told us that a minimum period of 10 days is required to make a mental status examination. 8. Now, we come to the question that disturbs us. It is seen from the records produced before us that the District Collector, Nagercoil had called for a meeting when it was brought to her notice that mentally affected persons are seen in railway stations and bus stands and that proper reception orders are to be obtained. At the meeting, a plan was drawn up : "In the meeting, it was unanimously resolved to send the Mentally affected persons who are seen in Nagercoil Town and Kanyakumari Township to the Institute of Mental Health, Ayanavaram, Chennai in a safety manner. At the first instance, necessary steps would be initiated to identify the Mentally affected persons so as to hand over to the Government Institute of Mental Health, Chennai, for which, the following arrangements to be made by the Officers concerned. It was further planned to commence this exercise by 9th itself and before this end of next week, all the identified patients should be sent to the Institute by getting proper Reception Order from the Judicial Magistrate, as required by the Institute." On 9.7.2008, learned Judicial Magistrate No.II had sent all the 115 persons for assessment of their mental condition as per Section 24 of the Mental Health Act. On 10.7.2008, reception orders had been issued. Though it was submitted by the learned Additional Public Prosecutor that there was no short-circuiting in the process of assessment of the mental condition and that a team of doctors worked, and that all the mentally ill persons were distributed amongst the team and evaluation was done properly, the facts indicate the contrary. We find that the evaluation report had been signed only by two doctors. For that, some explanation is given, which were are not willing to accept. It is clear that 115 persons were treated as mere chattels, rounded up, their hair trimmed, given a bath, sent to doctors, who "duly certified them as mentally ill" and reception orders had been issued. 9. We are also not happy about the manner in which reception orders had been issued by the learned Judicial Magistrate. Of course, we are not here to examine the correctness of the reception orders, that falls beyond the scope of this habeas corpus petition. But, it is apparent the learned Judicial Magistrate not have been really "satisfied" that reception orders ought to be issued in respect of these 115 persons? Mentally ill persons are entitled to the right of life with dignity and they have the Fundamental Rights same as others. Junior level officers of the judiciary are perhaps under the misapprehension that in their Courts, procedural law alone has to be followed. They should change their mindsets. They are equally charged with the obligation of protecting the fundamental rights of the litigants. The work they do day after day cannot run afoul of the Constitutional Obligations. 10. We are concerned with the manner in which the police, the doctors and the learned judicial magistrate have dealt with this group which, on the face of it, is a group without power; but nonetheless a group of persons entitled to protection of human rights. Their autonomy is violated and they have been treated as though they have no rights of their own. "By rights, I mean those fundamental expectations that govern the relationship between individuals and societies. In modern, western societies, rights of individuals are conceptualised as protections against arbitrary so that individuals retain personal choice and decision-making. ... The right of the individual to be free from arbitrary exercise of state power is perhaps the key difference between the democratic nations of the world and those that operate under other systems. Their cross-cultural value is recognized by documents such as the Universal Declaration of Human Rights, which hold that all adults, anywhere in the world, should be free to make basic life choices for themselves. Involuntary commitment, forced treatment, and psychiatric control over decision-making are really not complicated issues, despite the efforts to make them seem so. The fundamental question is this: why do we take one group of people, those labelled "mentally ill", and deny them basic rights? The ethical system (if I can call it that) that drives the involuntary treatment system is paternalism, the idea that one group (the one in power, not oddly) knows what is best for another group (which lacks power). The history of civilisation is in part, the struggle against paternalism and for self-determination. People in power are always saying that they know what is best for those they rule over, even if those poor unfortunate individuals think they know best what they want. The powerful seldom cast their own motives in anything but benevolent terms. Rulers and slave masters like to think (or pretend) that their subjects love them and are grateful to them often having to ignore much evidence to the contrary. The struggle for freedom has always been seen by the powerful as a denial of the obvious truth of the superiority of the rulers. It is clear that we cannot leave our fate in the hands of lawyers, judges, and psychiatrists, who seem quite willing to sacrifice our freedom in the name of benevolent paternalism. Not too many years ago, former patients were not invited to speak at conferences like these. Today, our participation is welcomed, our opinions are solicited, our voices being heard. But the continued existence of involuntary commitment, of prison-like mental institutions, of discrimination and seggregation, shows how far we still have to go to reach our goals: full citizenship, equality, and human dignity".1 11. In his Article2, Kevin Wadzuk of the American University, Washington DC writes : "The United States Constitution is the document upon which the country was founded. It outlines the powers and procedures of the government as well as its duties to protect personal liberties. There is no mention in the Constitution that the rights guaranteed to citizens are limited to those citizens who are of sound mind. ... After consideration of the abuses of the mentally ill, one might question the rationale of society, through its representatives, in these actions. Thomas Szasz (1963) suggests that social disturbance is the issue resolved by this process. If a person asserts ideas, beliefs, or sensations that threaten society, a social disturbance is created. Thus, the deprivation of liberty of a person for mental health reasons is based on the person s thoughts and behavior, not criminal actions. This is an important distinction to make because it leads to the violation of one the basic constitutional rights. Perhaps what is more disturbing is that these persons are not criminals; they are rejects from society. Society has deemed the behaviors of these people as unacceptable and developed a process to remove them from sight and consideration. However, these persons do not disappear; they spend years of there lives in mental institutions, such as St. Elizabeth s Hospital. It is extremely saddening and distinctly outrageous that a minority group could be so blatantly abused." 12. With these voices in the background, we go to the Act. Section 24 of the Mental Health Act reads as follows : "24. Procedure on production of mentally ill person. (1) If a person is produced before a Magistrate under sub-section (3) of section 23, and, if in his opinion, there are sufficient grounds for proceeding further, the Magistrate shall- (a) examine the person to assess his capacity to understand, (b) cause him to be examined by a medical officer, and (c) make such inquiries in relation to such person as he may deem necessary. (2) After the completion of the proceedings under sub-section (1), the Magistrate may pass a reception order authorising the detention of the said as an inpatient in a psychiatric hospital or psychiatric nursing home,- (a) if the medical officer certifies such person to be a mentally ill person, and (b) if the Magistrate is satisfied that the said person is a mentally ill person and that in the interest of the health and personal safety of that person or for the protection of others, it is necessary to pass such order: Provided that if any relative or friend of the mentally ill person desires that the mentally ill person be sent to any particular licensed psychiatric hospital or psychiatric nursing home for treatment therein and undertakes in writing to the satisfaction of the Magistrate to pay the cost of maintenance of the mentally ill person in such hospital or nursing home, the magistrate shall, if the medical officer in charge of such hospital or nursing home consents, make a reception order for the admission of the mentally ill person into that hospital or nursing home and detention therein: Provided further that if any relative or friend of the mentally ill person enters into a bond, with or without sureties for such amount as the Magistrate may determine, undertaking that such mentally ill person will be properly taken care of and shall be prevented from doing any injury to himself or to others, the Magistrate may, instead of making a reception order, hand him over to the care of such relative or friend." The Statement of Objects and Reasons of the Mental Health Act shows the transformation in the attitude of people when compared to the Act that was repealed, namely the Lunacy Act. Even the nomenclature given to the mental condition, to which the Act is addressed, has undergone a sea change. Where originally the word used was "lunacy", now the words used are "mental health". 13. It is evident that on the part of Judicial Magistrate No.II, Nagercoil, he has not applied his mind to examine the persons produced before him under Section 24 of the Mental Health Act, 1987, but had mechanically passed the reception orders. As we have already observed our unhappiness about the manner in which the 115 persons were produced by the police before the Judicial Magistrate No: II, Nagercoil at Kanyakumari District, and the disposal of those persons in granting the reception orders by the learned Judicial Magistrate, it has become necessary for us to give suitable directions to the executive authorities concerned as well as the Judicial Magistrates, who have to deal with the persons who are supposed to be mentally ill, so that they may act in accordance with The Mental Health Act, 1987 and to follow the guidelines issued by this Court as well as the Supreme Court in the various pronouncements. The Supreme Court had bestowed its hope on judicial Magistrates rather than the executive Magistrates to pass reception orders as per provisions of The Mental Health Act, 1987. 14. Mentally ill persons are not criminals, they have not committed any offence. Then, is it necessary that for their protection, action should commence with a First Information Report? The law makers should seriously consider an alternative procedure by which reception orders can be issued without a "police complaint". 15. Justice Claire L'Heureux Dube, Supreme Court of Canada (Retired) would say that one must walk in the person's shoes if one has to understand where a person who complains of violation of rights comes from. I quote : "It is important to walk a mile in another person's shoes. As it is possible to grow up in the same family, neighbourhood, school..... And yet, have totally different experiences depending on whether you are a man or a woman. The way to resolve differences therefore is not to suppress those who are different, but to notice them and not try to see our reflection in them." It would be better, in fact imperative, that the police, the doctors and the judicial officers put themselves in the shoes of these marginalized groups of persons who are treated as if they are non-persons before they deal with their rights. 16. Every person wandering on the street is not mentally ill. The police should not "round up" people as if they were stray cattle and deal with them as such. Each individual should be dealt with as a separate case, he/she shall be treated as a human being with all the Constitutional rights. This will be possible if the police/NGO or any other person bring up each case individually as and when it arises. 17. The police need not wait to reach such a huge number in order to produce such persons before the Judicial Magistrate concerned. They shall act promptly as and when they happen to see an abandoned or destitute or mentally affected or suspected ill persons wandering in the public places. When such mentally ill persons are handled by the police, they are to be treated with humanity and dignity and they should not be treated as chattel. The police officers who are actually executing the work of taking cognizance of the mentally ill persons who are roaming in the streets and other public places shall deal with them as per Section 23 of the Mental Health Act, 1987. 18. It is also apparent that the medical officers have not given the due care and caution before certifying a person as mentally ill. This has several serious legal consequences, depriving them of many rights. For example a mentally unsound person cannot contest an election. There are so many disqualifications that attend a person with mental unsoundness. In this case, the petitioner's father has been certified as suffering from bipolar disorder without justification. He is as healthy as the person who first examined him, as the certificate from the Institute of Mental Health, Chennai would show. The doctors cannot mindlessly certify a person as mentally ill. If they need time for examination, they shall insist on that time being given. Importantly, a person does not deserve any less attention than another merely because he/she is found on the street or is poor or is a beggar. The doctors shall also attend immediately to any physical injury that is found on the said person. 19. The trust and hope laid on the Judicial Magistrates in Sheela Barse vs. Union of India, (1993) 4 S.C.C. 204 should have been fulfilled by the Judicial Magistrates by observing and enforcing the provisions of the Mental Health Act, 1987, strictly when the suspected mentally ill persons are produced before them. The Judicial Magistrates concerned should have examined the persons to assess their capacity to understand and cause him to be examined by the Medical Officer and to make such enquiries in relation to such person whenever necessary. It is humanly impossible to "examine" 115 persons, as has been done in this case. Any deviation of Section 24 of the Act is not only harmful to the persons concerned but will also affect the society at large. Under these circumstances, the Judicial Magistrates of this State of Tamil Nadu as well as the State of Puducherry are to be instructed that they should follow the procedures mentioned in Section 24 of the Mental Health Act, 1897 in letter and spirit and to see that justice is done to the persons concerned. The mentally ill persons shall not be made to wait unduly long before reception orders are issued. The Magistrates shall remember the trust and faith reposed on them while they discharge their duty under this Act. What happened in this case must not ever recur. 20. By an order dated 21.07.2008, this Court had set at liberty the detenu Mr. Roger Vandenbyvanghe, already, and therefore, this habeas corpus petition is disposed of with the aforesaid directions. 21. The Registry is directed to circulate this order to all the Judicial Magistrates concerned in Tamil Nadu and Puducherry through the Principal District Judge of the respective Districts for strict observance. The Registry shall also communicate this order to the Director General of Police, Tamil Nadu, and Director General of Police, Puducherry, to circulate the instructions and observations to all the police stations. (P.S.D., J.) (V.P.K., J.) ab 19..09..2008 Index : Yes Website : Yes To 1. The State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort St. George, Chennai-9. 2. The Commissioner of Police, Chennai City, Chennai. 3. Institute of Mental Health, Rep. by its Director, Kilpauk, Chennai-10. 4. The Inspector of Police, Kottur Police Station. 5. Inspector of Police, Nesamony Nagar Police Station, Kanyakumari District at Nagercoil. ab Prabha Sridevan, J. and V. Periya Karuppiah, J. Pre-delivery Order in H.C.P. No.1041 of 2008 Delivered on

Siddha Doctors and use of Modern Scientific Medicine Drugs

2013-11-30T13:51:00.002+05:30

From http://indiankanoon.org/doc/1519022/ BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/02/2011 CORAM THE HONOURBLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.7678 of 2010 W.P.(MD)NO.4463 of 2007 W.P.(MD)NO.8907 to 8909 of 2009 W.P.(MD)NO.2244, 5851, 6276, 6277, 8051, 8233 and 12561 of 2010 and M.P.(MD)Nos.1 of 2007, 1,1 and 1 of 2009, 1,1,1,1,1,1,2,1,1 and 2 of 2010 W.P.(MD)No.7678 of 2010 Tamilnadu Siddha Medical Graduates Association, Reg. No.105/2000, rep by Dr.M.Selvin Innocent Dhas, MD(s), President, Tamilnadu Siddha Medical Graduates Association, Kanyakumari Chapter:3-2, Muthalakurichy, Thuckalay Post, Kanyakumari District. .. Petitioner vs 1.Indian Medical Association, rep by Dr.K.Prakasam, Chairman, IMA Quackery Eradication Committee, Tamilnadu State Branch, Chennai. 2.State of Tamilnadu, rep by its Secretary to Government, Department of Health and Family welfare, Fort St. George, Chennai-9. 3.The Director, Public Health and Preventive Medicine, DMS Complex, Teynampet, Chennai-18. 4.The Director General of Police, Chennai-4. 5.The District Collector, Nagercoil, Kanyakumari District. 6.The Superintendent of Police, Nagercoil, Kanyakumari District. 7.Tamil Nadu Medical Council, rep by its Registrar Mr.S.Kandasamy, D Block, First Floor, TNHB Complex, Jawaharlal Nehru Salai, 100 feet Inner Ring Road, Vadapalani, Chennai-26. (R-7 impleaded as a party respondent as per order dt.31.8.2010 in MP(MD)No.2 of 2010) .. Respondents W.P.(MD)No.4463 of 2007 Dr.Jillus .. Petitioner vs 1.The Superintendent of Police, Kanyakumari District at Nagercoil. 2.The Inspector of Police, Colachel Police Station, Kanyakumari District. .. Respondents W.P.(MD)Nos.8907 to 8909 of 2009 Dr.N.Vivekanandham .. Petitioner in WP(MD)No.8907 of 2009 Dr.N.Sornappan .. Petitioner in WP(MD)No.8908 of 2009 Dr.N.Selvam .. Petitioner in WP(MD)No.8909 of 2009 vs 1.The Joint Director, Public Health Department, Kottar, Nagerkovil, Kanyakumari District. 2.The Deputy Director, Public Health Department, Krishnankovil, Vadaseri, Nagercoil, Kanakumari District. 3.The Superintendent of Police, Kanyakumari District, Nagerkovil, Kanyakumari. .. Respondents in all three writ petitions W.P.(MD)No.2244 of 2010 Tamizhaga Homeopathy and Siddha (Ayush) Doctors Association, Registered No.2 rep by State General Secretary Dr.K.Chinnaiyan Registered office at No.15,Baloba Nanthavanam, North Vasal Street, Thanjavur. .. Petitioner Vs 1.The Secretary, Department of Health, Indian Medicine and Homeopathy and Family Welfare Department, Fort St. George, Chennai-600 009. 2.State of Tamil Nadu, rep by Special Secretary, Home Department, Fort St. George, Madras-600 009. 3.The Director General of Police, Kamarajar Salai, Madras-600 004. 4.The Superintendent of Police, Thanjavur District, Thanjavur. 5.The Superintendent of Police, Pudukkottai District, Pudukkottai. 6.The Drug Controller, Arulananda Nagar, Thanjavur. .. Respondents W.P.(MD)Nos.5851, 6276 and 6277 of 2010 Rural Medical Private Practitioners' Associations, Regd. No.312/1994 Kodairoad Main Road, Pudur, Kodairaod, Dindigul District-624 006 rep by its President, Dr.S.Belavandran .. Petitioner in W.P.(MD)No.5851 of 2010 Dr.S.Palanimuthu .. Petitioner in W.P.(MD)No.6276 of 2010 Dr.R.Murugesan .. Petitioner in W.P.(MD)No.6277 of 2010 vs 1.The State of Tamilnadu, rep by its Chief Secretary, Secretariat, Chennai. 2.The State of Tamilnadu, rep by its Secretary to Government, Health & Family Welfare Department, Secretariat, Chennai. 3.The State of Tamilnadu, rep by its Secretary to Government, Home Department, Secretariat, Chennai. 4.The Director General of Police, Santhome, Chennai-6. 5.The Inspector General of Police, South Zone, Alagar Kovil Road, Madurai-2. 6.The District Collector, Dindigul District, Dindigul. 7.The Superintendent of Police, Dindigul District, Dindigul. .. Respondents in all the three writ petitions W.P.(MD)No.8051 of 2010 L.Arivazhagan .. Petitioner Vs 1.The State of Tamil Nadu, rep by its Secretary to Government, Health & Family Welfare Department, Fort St George, Chennai-9. 2.The District Collector, Dindigul, Dindigul District. 3.The Superintendent of Police, Dindigul, Dindigul District. .. Respondents W.P.(MD)No.8233 of 2010 : Karikalan .. Petitioner Vs 1.The Joint Director of Medicines, Sivagangai 2.The Superintendent of Police, Sivagangai. .. Respondents W.P.(MD)No.12561 of 2010 Dr.S.Selvaraj .. Petitioner Vs 1.The State of Tamilnadu, rep by Commissioner and Secretary to Government, Health and Family Department, Secretariat, Chennai-600 009. 2.The Deputy Director, Public Health Department, Meenakshi Nayakkan Patti Post, Dindigul District. 3.The District Collector, Office of the Collectorate, Dindigul. 4.The Superintendent of Police, District Police Office, Dindigul. 5.The Inspector of Police, Chanarpatti Police Station, Dindigul District .. Respondents W.P.(MD)No.7678 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the respondents and their men not to interfere with the professional practice of the members of the petitioner association and taking action in the name of Anti-quackery action against the members of the petitioner's association who are practicing their profession as per the Regulations passed by the Central Council of Indian Medicine, New Delhi and as per the Indian Medical Degrees (Madras Amendment) Act, 1940. W.P.(MD)No.4463 of 2007 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus forbearing the respondents from interfering with the practice of the petitioner as Homeopathy Doctor in St. Mary's Hospital, Beach Junction, Colachel, Kanyakumar District. W.P.(MD)Nos.8907 to 8909 of 2009 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus forbearing the respondents herein from in any way interfering the Siddha and Ayurvedic medical practice in the petitioners' clinic M/s.Nambirajan Siddha Clinic at Nangai Nagar, Akkarai Cape Road, Suseendhiram and also at Register Office Road, Edalakudi, Nagerkovil, Kanyakumari District, M/s.Sorna Clninic at 11/48, main Road, Kulasekaranpudhur, Kanyakumari District and M/s.Selvam Clinic at Kheezhur, Thirupathi Saaram, Kanyakumari District without following due process of law. W.P.(MD)No.2244 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents not to take any penal action against the members of the petitioner's association except complaint from the competent persons under the provisions of Tamil Nadu Homeopathy System of Medicine and Practitioners of Homeopathy Act and Tamil Nadu Council of Indian Medicine to enable the members of the petitioner's association to practice in the system of Homeopathy and Siddha Medicine without any interruption from respondents 2 and 6. W.P.(MD)Nos.5851, 6276 and 6277 of 2010 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the respondents from interfering with the day today practice of Indian system of medicines, viz., Siddha, Unani, Ayurvedha and Homeopathy by the members of the petitioner association within a period that may be stipulated by the court. W.P.(MD)No.8051 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to break open the seal of the petitioner premises situated in D.No.1/111, Therodum Veethi, Sempatti, Dindigul District and consequently to forbear the respondents herein in any way interfering with the petitioner's day today practice in Indian System of Siddha Medicine and Homeopathy. W.P.(MD)No.8233 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the respondents and their subordinates from interfering with the peaceful and lawful practice of the petitioner in the field of Siddha, Herbal Medicine, Herbal Physiotherapy and Acupuncture. W.P.(MD)No.12561 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the respondents herein from in any way interfering with the petitioner's Siddha, Ayurvedic and Homeo Medical practice in the petitioner's clinic without following due process of law. !For Petitioners ... Ms.Victoria Gowri Mr.K.Sellathurai Mr.M.Ajmal Khan Mr.K.Gokul Mr.M.Ramaratnam Mr.P.Ganapathi Subramani Mr.N.Anandhakumar Mr.C.K.M.Appaji ^For Respondents ... Mrs.V.Chellammal Murthy, AAG-V assisted by Mr.S.C.Herold Singh, GA Mr.Veerakathiravan Mr.C.Karthick Mr.B.Cheran - - - - :COMMON ORDER In W.P.(MD)No.7678 of 2010, the petitioner is the Tamilnadu Siddha Medical Graduates Association represented by its President. In that writ petition, they seek writ in the nature of mandamus to forbear the respondents from interfering with the professional practice of the members of the petitioner association and from taking action in the name of Anti-quackery action against the members of the petitioner's association who are practicing their profession as per the Regulations passed by the Central Council of Indian Medicine, New Delhi and as per the Indian Medical Degrees (Madras Amendment) Act, 1940. 2.The writ petition was admitted on 18.6.2010. Pending the writ petition, an interim injunction was granted against fourth and sixth respondents, i.e. Director General of Police, Chennai and the Superintendent of Police, Nagercoil, Kanyakumari District from interfering with the professional practice of the members of the petitioner association who hold valid registration certificate issued by the Tamilnadu Siddha Medical Council, even if they practice their respective system with modern scientific medicines including Surgery and Gynecology, Obstetrics, Anesthesiology, ENT, Ophthalmology based on the training and teaching they had during the course of their study. But, it was made clear that they are not entitled to practice exclusively Allopathy medicine. Subsequently, the Tamil Nadu Medical Council represented by its Registrar was impleaded as the 7th respondent in that writ petition. 3.Even before filing of the said writ petition, a writ petition was filed by one Dr..Jillus in the year 2007 in W.P.(MD)No.4463 of 2007 seeking to forbear the respondents, i.e. Superintendent of Police, Kanyakumari District and his subordinates from interfering with the practice of the petitioner as Homeopathy Doctor in St. Mary's Hospital, Beach Junction, Colachel, Kanyakumar District. In that writ petition, notice of motion was ordered. Pending notice of motion, no interim relief was granted. It was directed to be listed along with other batch of cases relating to Homeopathy Doctors. 4.Thereafter, 10 other writ petitions were filed. W.P.(MD)No.2244 of 2010 is filed by the Tamizhaga Homeopathy and Siddha (Ayush) Doctors Association, functioning from Thanjavur seeking for a direction to the respondents not to take any penal action against the members of the petitioner's association except complaint from the competent persons under the provisions of Tamil Nadu Homeopathy System of Medicine and Practitioners of Homeopathy Act and Tamil Nadu Council of Indian Medicine to enable the members of the petitioner's association to practice in the system of Homeopathy and Siddha Medicine without any interruption. That writ petition was admitted on 25.2.2010. Pending the writ petition, an interim injunction was granted. In that case, the fifth respondent, i.e. Superintendent of Police, Pudukkottai had filed a counter affidavit, dated 20.4.2010. It was claimed that the police have no reason to harass the Homeopathy and Siddha Doctors. Section 15 of the Indian Medical Council Act, 1956 bars the Homeopathy and Siddha Doctors from using Allopathy medicines. They were acting upon the complaints received from the Allopathy doctors. A Siddha or Homeopathy Doctor cannot be let off without prosecution if they impersonated as Allopathy Doctor. They have been dealt with under the provisions of the IPC and as per the Indian Homeopathy Council Act. 5.W.P.(MD)No.5851 of 2010 was filed by the Rural Medical Private Practitioners' Association represented by its President. The prayer in that writ petition was to forbear the respondents from interfering with the day today practice of Indian system of medicines, viz., Siddha, Unani, Ayurvedha and Homeopathy by the members of the petitioner association. In that writ petition, notice was taken by the Government Pleader. An interim injunction was also granted provided the members of the petitioner association do not use, prescribe Allopathic medicines or perform surgery or any other activity which is unknown to Indian medicine and homeopathy. 6.In W.P.(MD)Nos.6276 and 6277 of 2010, the two petitioners who are Doctors in Dindigul District sought for the prayer against the official respondents including the State and the Police Officers from interfering with the day today practice of Indian medicine, i.e Siddha by the petitioners. In those two writ petitions, notice regarding admission was granted on 29.4.2010. An interim prayer as made in W.P.(MD)No.5851 of 2010 was granted by this court. 7.In W.P.(MD)No.8051 of 2010, again the petitioner was a Doctor in Dindigul District practicing Siddha medicine, who had registered with Tamil Nadu Siddha Medical Council. He prayed for a direction to respondents to break open the seal of the petitioner premises situated in Door no.1/111, Therodum Veethi, Sempatti, Dindigul District and to forbear the respondents from in any way interfering with the petitioner' day today practice in Indian System of Siddha medicine and Homeopathy. That writ petition was not admitted till date. 8.In W.P.(MD)No.8233 of 2010, the petitioner had claimed that he had underwent self employment course for youth conducted by the Madurai Kamaraj University in Herbal Education. He had undergone training in Acupuncture Theraphy conducted by the Department of Adult Continuing Education and Extension, Madurai Kamaraj University. He is having diploma in Acupuncture and Herbal Physiotherapy as well as holding diploma in Siddha Medicine. He is also practicing an alternate medicine of Acupuncture, Herbal and Siddha Medicine. He seeks for a direction to the respondent police at Sivagangai to forbear them from interfering with the peaceful and lawful practice of the petitioner in the field of Siddha, Herbal Medicine, Herbal Physiotherapy and Acupuncture. When that writ petition came up for hearing, the learned Government Pleader took notice. No interim order was granted by this court. 9.In W.P.(MD)Nos.8907 to 8909 of 2009, the three writ petitioners who are residents of Kanyakumari District and are registered Ayurvedic and Siddha Medical practitioners. They sought for direction to the respondent police to forbear them from interfering with the Siddha and Aurvedic medical practice in their respective clinics at various places as found in the prayer portion. In these three writ petitions, notice of motion was ordered on 8.9.2009. No interim order was granted by this court. 10.In W.P.(MD)No.12561 of 2010, the petitioner who is a registered Ayurvedic, Siddha and Homeopathy medical practitioner, seeks for a direction to forbear the respondents from in any way interfering with the petitioner's right to practice Indian medicine except following due process of law. When that writ petition came up on 02.11.2010, this court directed the third respondent, i.e. District Collector, Dindigul to remove the seal in the office of the petitioner at Athikaripatti. The third respondent was also given liberty to take an inventory of all items found in the clinic for the purpose of further investigation and prosecution of cases registered against the petitioner. He was also given liberty to seize the goods which are necessary to be used as material evidence in the prosecution. In that case, notice was taken by the learned Government Advocate. 11.It is unnecessary to deal with the facts of the individual cases filed by certain medical practitioners of Indian Medicine. It is agreed between the parties that W.P.(MD)No.7678 of 2010 which was filed by the Tamil Nadu Siddha Medical Graduates Association can be taken as a representative case and that the contentions raised therein if answered will dispose of all other individual cases. Apart from that W.P.(MD)Nos.2244 of 2010 and 5851 of 2010 were also filed by two associations representing different sections. 12.Heard the arguments of Mrs.Victoria Gowri, learned counsel for petitioners, Mrs.Chellammal Murthy, learned Additional Advocate General-V, leading Mr.S.C.Herold Singh, learned Government Advocate appearing for respondent State and Police, Mr.Veerakathiravan, learned counsel appearing for the Tamil Nadu Medical Council and Mr.C.Karthik and Dr.B.Cheran for the first respondent Indian Medical Association. 13.Before proceeding to deal with the rival contentions in all these writ petitions, it is necessary that the Tamil Nadu Government by G.O.Ms.No.248, Health and Family Welfare Department, dated 8.9.2010 had issued a notification in the Government Gazette under Rule 2(ee)(iii) of the Drugs and Cosmetics Rules, 1945. It is necessary to set out the entire notification, which reads as follows: "WHEREAS, the rights of practitioners of Indian System of Medicine are protected under section 17(3)(b) of the indian Medicine Central Council Act, 1970 (Central Act 48 of 1970); AND WHEREAS, as per section 2(1)(e) of the said Act, "Indian Medicine" means the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances, as the Central Council of Indian Medicine may declare by notification from time to time; AND WHEREAS, the Central Council of Indian Medicine in its Notification F.No.28- 5/2004-AY.(MM), dated the 19th May 2004, has clarified that the word "Modern Advances " in clause (e) of Section 2(1) of the said Act as advances made in the various branches of modern scientific medicine in all its branches of internal medicine, surgery, gynaecology and obstetrics, anesthesiology, diagnostic procedures and other technological innovation made from time to time and declare that the courses and curriculum conducted and recognized by the Central Council of Indian Medicine are supplemented with such modern advances; AND WHEREAS, the Central Council of Indian Medicine has improved and strengthened the syllabus of Indian Medicine by including subjects with regard to National Programmes like National Malaria Eradication programmes, Tuberculosis, Leprosy, Family Welfare Programme, Reproductive and Child Health Programme, Immunisation Programme, AIDS, Cancer etc : Now, THEREFORE, under sub-clause (iii) of clause (ee) of rule 2 of the Drugs and Cosmetics Rules, 1945 the Governor of Tamil Nadu hereby declares every registered medical practitioner holding the qualifications specified in the second, third or fourth Schedule to the Indian Medicine Central Council Act, 1970 (Central Act 48 of 1970) and Part III of the Schedule to the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 (Tamil Nadu Act 34 of 1997) and registered in the Medical Register of State maintained under the aforesaid Acts, as a person practicing the modern scientific system of medicine for the purposes of the Drugs and Cosmetics Act, 1940 (Central Act 23 of 1940.)" 14.It is claimed that the said notification is the subject matter of challenge by the Indian Medical Association, the first respondent, in W.P.No.23783 of 2010 before the Principal Bench. They had obtained an interim stay and the same is pending. It is the case of the petitioner that the Principal Bench in W.P.No.22155 of 2009 passed an interim order on 5.1.2010, seeking for a direction to the petitioner association to furnish to the respondents the names of such persons who are allegedly practicing medicine without valid licence. The respondents 2 to 4 in that writ petition were directed to take an action against those persons on receiving any such information. 15.The Indian Medical Association had earlier filed W.P.No.30259 of 2008 before the Principal Bench, seeking for a direction to consider their representations, dated 15.5.2008 and 14.6.2008 and to initiate an appropriate criminal prosecution against the paramedical technicians, paramedical practitioners and Physiotherapists, who are practicing Allopathic medicine and doing Allopathy treatment by using the prefix Doctor before their names in the prescriptions and advertisements within the State of Tamil Nadu. In that writ petition, the Principal Bench on 23.2.2010 had directed the first respondent to take an action against persons who pose themselves as Doctors or persons who are qualified otherwise than Doctors prefixing the title Doctor before their names in the prescriptions and advertisements. The Association was also directed to give the names of such persons who according to them were illegally practicing, before the Superintendent of Police of the respective districts as well as to the District Medical Officer. 16.In the light of these two orders of the High Court, the first respondent Association made a representation to the District Collector of all Districts in the name of Anti-quackery action at the District level. As per the directions of this court in those two writ petitions, they had furnished a list of the alleged quack Doctors in every District and a consolidated list of 2000 quacks was handed over to the Director General of Police. The first respondent Association themselves made a definition as to who is quack so as to include even the names of Doctors who are practicing over the system of medicine in the list of quacks which are beyond the scope of the order passed by this court. While no doubt the practice of unqualified quacks will have to be checked, but the first respondent cannot use those two orders as a mean to eliminate the other Doctors who are practicing the other systems of medicine. Therefore, the petitioner association made a representation to the District Collector, Kanyakumari District to convene a meeting for proper identification of quacks. Therefore, it is claimed that their right to practice any system of medicine is derived from the Act under which the medical practitioner is registered. The members of the petitioner association were governed by the provision of the Indian Medical Degree (Madras Amendment) Act, 1940, Indian Medicine Central Council Act, 1970, The Tamilnadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997, The Drugs and Cosmetics Act 1940, The Drugs and Cosmetics Rules, 1945 and the Indian Medical Practitioners Professional Conduct Etiquette and Code of Ethics Regulations. 17.The respondent police on the basis of the list furnished by the first respondent had arrested many members of the petitioner association and remanded them to custody under various provisions of the IPC read with Section 15(2) of the Indian Medical Council Act, 1956. But, already this court in the year 2006 had granted an interim injunction restraining the police from interfering with the professional practice of such of those members of the petitioner association having a valid registration certificate issued by the Tamil Nadu Siddha Medical Council. As long as their registration holds good, they should not be disturbed. In the light of the constant pressure by the first respondent and various cases filed by the police, the association has filed the present writ petition so as to save their members from the harassment faced at the hands of the respondents. 18.The case of the petitioner association with reference to their right to practice the Indian medicine in their affidavit stated as follows: "c.The members of the petitioner-association studied in approved institutions, obtained their professional degrees from Universities and enrolled as Siddha Practitioner in the State register maintained by the Tamilnadu Siddha Medical Council. d.The members of the petitioner-association are qualified B.S.M.S. (Bachelor of Indian Medicine and Surgery) which is placed under the second schedule of the IMCC Act, 1970 and it is a recognized medical qualification for practicing Indian Medicine. e.The duration of the courses like B.A.M.S. (Bachelor of Ayurveda Medicine and Surgery) and B.S.M.S. (Bachelor of Siddha Medicine and Surgery) is equal to the duration of the course for M.B.B.S. (Bachelor of Medicine and Bachelor of Surgery) and all these three courses are involving five years period of study and a six months house surgeon period. Thus the scheme of study of Indian Medicine and English Medicine are similar. f.Sec.2(1)(e) of the IMCC Act says that "Indian Medicine" means the system of Indian Medicine commonly knows as Ashtang Ayurveda, Siddha, and Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notifications from time to time. Thus the three types of practice of Indian Medicine namely Ayurveda, Siddha and Unani Tibb also includes the practices of modern advances as the Central Council constituted u/s.3 of IMCC Act may declare by notifications from time to time. g.The Central Council of Indian Medicine issued a notification in No:8-5-96- Ay.(MM) dated 30.10.96 and notified that "Institutionally qualified practitioners of India Systems of Medicine (Ayurveda, Siddha & Unani) are eligible to practice Indian Systems of Medicine and Modern Medicine including Surgery, Gynecology, Obstetrics based on their training and teaching which are included in the syllabi of via courses of Indian System of Medicine prescribed by Central Council of Indian Medicine after approval of the Govt. of India. h.It was further clarified in the said notification that the rights of practitioners of Indian system of Medicine to practice modern scientific system of Medicine (Allopathic Medicine) are protected under Section 17 of the Indian Medicine Central Council Act, 1970. j.The members of the petitioner-association are doctors by profession and holders of Medical Degree as recognized by the Union and State Governments of India. l.The respondents ought to have taken into consideration, that the members of the petitioner-association are holders of medical degrees under the Indian Medical Degrees (Madras Amendment) Act, 1940 and are registered medical practitioners according to section 2(ee)(iii) of the Drugs and Cosmetic Rules, 1945 and legally qualified medical practitioners under Section 25 of The Tamilnadu Siddha System of Medicine (Development and Practitioners) Act, 1997. m.The respondents failed to honour the constitutional validity of the Tamilnadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 and failed to appreciate the provisions regarding professional misconduct or infamous conduct in any professional respect as explained in Section 30(1) stating, "No court shall take cognizance of any offence punishable under this Act except on complaint in writing made by the Registrar of any officer authorized by him in this behalf." n.The respondents failed to appreciate the Indian Medical Practitioners Professional Conduct, Etiquette and Code of Ethics Regulations enacted by the exercise of the powers conferred by clause (1) of (2) of section 26 of the Indian Medicine Central Council Act, 1970, by the Central Council of Indian Medicine, with the previous sanction of the Central Government. o.The respondents failed to understand that except on complaint in writing by the registrar of Indian Medicine or any officer authorized by him in this behalf, the 4th respondent could not take action against the members of the petitioner-association for professional misconduct or infamous conduct in any professional aspect. p.The 1st respondent-association has prepared the list of quacks with the malafide intention to defame and demean the professional good will of the members of the petitioner-association, by including the names of the petitioner- association who are practicing their system of medicine within the scope of the Central and State Acts under which they have registered their medical degrees. r.The respondents have violated the fundamental right to practice any profession of the members of the petitioner-association as guaranteed by Article 19(g) of the Constitution of India, and the 4th respondent ought to have appreciated the order dated 13.10.2009 bearing No:K.Dis.No:70/TNBIM/2009 passed by Tamilnadu Board of Indian Medicine." 19.In the typed set filed by the petitioner association, they have enclosed various registration certificates obtained by them under the Tamil Nadu Siddha Medical Counsel to show that they are not quacks so as to be harassed by the respondent. 20.Ms.Victora Gowri, the learned counsel also referred to the following judgments in support of her submissions. She referred to a judgment of the Supreme Court in Dr.Mukhtiar Chand and others Vs. State of Punjab and others reported in 1998 (7) SCC 579 with reference to right of guarantee under Article 19(1)(g) of the Constitution of India to carry on any occupation. In paragraph 35, the Supreme Court had observed as follows: "35.Points 2 and 3 have some overlapping so it will be convenient to discuss them together. The right to practise any profession or to carry on any occupation, trade or business is no doubt a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. But that right is subject to any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation or trade or business enacted under clause (6) of Article 19. The regulatory measures on the exercise of this right both with regard to the standard of professional qualifications and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment. There can, therefore, be no compromise on the professional standards of medical practitioners. With regard to ensuring professional standards required to practise allopathic medicine, the 1956 Act was passed which deals also with reconstitution of the Medical Council of India and maintenance of an Indian Medical Register. Thus, for the first time, an Indian Medical Register for the whole of India came to be maintained from 1956. In the 1956 Act, Section 2(f) defines "medicine" to mean "modern scientific medicine" in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery and the expression "recognised medical qualification" is defined in Section 2(h) to mean any of the medical qualifications included in the Schedules to the Act." 21.With reference to Doctors practicing Indian System of Medicine using Allopathy, in paragraph 27, it was observed as follows: "27.The learned counsel argued at length on the question whether clause (iii) is also intended for left-out qualified allopathic doctors. But if that interpretation is accepted, the said clause will become redundant as admittedly clauses (i) and (ii) exhaust all categories of practitioners entitled to practise in allopathic medicine. It was conceded at the end of the day and, in our view rightly, that the clause takes in medical practitioners other than qualified practitioners entitled to practise allopathic medicine. And as practitioners of homoeopathic medicine are specifically excluded, it becomes evident that this category comprises practitioners who are enrolled in a Medical Register of a State and though not answering the description of clauses (i) and (ii), are de facto practising modern system of medicine (allopathic) and those facts are declared by the State Government concerned. By this sub-clause, a de facto practitioner of modern scientific medicine (allopathic) is recognized as a registered medical practitioner and is enabled to prescribe drugs covered by the Drugs Act." 22.Similarly, in paragraph 40, the Supreme Court had observed as follows: "40.We have perused the Bombay Medical Act, 1912, the Bihar and Orissa Medical Act, 1916, the Punjab Medical Registration Act, 1916, the Rajasthan Medical Act, 1952 and the Maharashtra Medical Council Act, 1965 which regulate maintenance of registers of medical practitioners and the entitlement to practise allopathic medicine. Under those Acts, State Medical Registers are maintained. Section 7(3) of the Bombay Act of 1912 enabled the Provincial Government, after consulting the State Medical Council, to permit the registration of any person who was actually practising medicine in the Bombay Presidency before 25-6-1912; this seems to be the only case of registration without the requisite qualification. Further, persons possessing Ayurvidya Visharad of the Tilak Maharashtra Vidyapeeth of Poona, obtained during the years 1921-1935 (which was included in the Schedule to that Act on 30-9-1939 pursuant to Notification No. 3020/33 dated 12-9-1939) were entitled to be registered in the State Medical Register; this is the only ayurvedic qualification on the basis of which persons were eligible to be registered on the State Medical Register in Maharashtra; further with regard to rural areas, the prohibition to practise allopathic medicine under that Act did not apply provided a person had commenced practice in any village in the rural area prior to 1912. None of the petitioners has claimed benefit of these exceptions. We could not find any other provision which enables a person, other than those possessing the qualification prescribed in the Schedules to the Acts, to be registered in the State Medical Register to practise allopathic medicine. So it can be observed that if any State law relating to registration of medical practitioners permits practise of allopathic medicine on the basis of a degree in integrated medicines, the bar in Section 15(2)(b) of the 1956 Act will not apply." 23.With reference to the provisions of the Drugs and Cosmetics Act and the right to use such Allopathy medicines by such Doctors, in paragraph 41, it was observed as follows: "41.Rule 2(ee), as noted above, has been inserted in the Drugs Rules with effect from 14-5-1960. Section 15 of the 1956 Act, as it then stood, only provided that the medical qualifications in the Schedule shall be sufficient qualification for enrolment on any State Medical Register and so there was no inconsistency between the section and the Rule when it was brought into force. But after sub- section (2) of Section 15 was inserted in the 1956 Act, with effect from 15-9- 1964, which, inter alia, provides that no person other than a medical practitioner enrolled on a "State Medical Register" shall practise modern scientific medicine in any State, the right of non-allopathic doctors to prescribe drugs by virtue of the declaration issued under the said Drugs Rules, by implication, got obliterated. However, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments." 24.It was further stated that if the State law provides registration of Indian medicine practitioners, then the notification issued under the Central Act will be available in their favour. In paragraph 49, the Supreme Court had stated as follows: "49.The upshot of the above discussion is that Rule 2(ee)(iii) as effected from 14-5-1960 is valid and does not suffer from the vice of want of legislative competence and the notifications issued by the State Governments thereunder are not ultra vires the said Rule and are legal. However, after sub-section (2) in Section 15 of the 1956 Act occupied the field vide Central Act 24 of 1964 with effect from 16-6-1964, the benefit of the said Rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practise any system of medicine is conferred by the State law under which practitioners of Indian medicine are registered in the State, which is for the time being in force. The position with regard to medical practitioners of Indian medicine holding degrees in integrated courses is on the same plane inasmuch as if any State Act recognizes their qualification as sufficient for registration in the State Medical Register, the prohibition contained in Section 15(2)(b) of the 1956 Act will not apply." 25.The learned counsel also submitted that the petitioner association had filed W.P.No.9648 of 2006 before the Principal bench. Despite the interim order since the respondents were taking action flouting those orders, the association was constrained to file a contempt petition being Contempt Petition No.775 of 2010 before the Principal Bench against the Director General of Police. In that contempt petition, a learned Judge of this Court by his order, dated 23.7.2010 which was subsequently reported in 2010 (4) CTC 798, after referring to the submissions made by the parties, in paragraph 4 had observed as follows: "4....it is imperative that no proceedings can be initiated against any of those registered practitioners in Siddha, Ayurveda, Homeopathy and Unani, who are eligible to practice irrespective of the respective system also with Modern Scientific Medicine including Surgery and Gynecology Obstetrics, Anesthesiology, ENT, Opthalmology, etc. Such registration of the medical practitioners with Tamil Nadu Siddha Medical Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical Council as well as such of those qualified doctors who were recognised as such by the Madurai Kamaraj University and Tamil Nadu Dr. MGR Medical University who have been qualified respectively in the system of bachelor of Siddha Medicine and Surgery. If any action had been taken against such of those medical practitioners referred to above, it is needless to state that, such action should be dropped forthwith pending further orders in the Writ Petition." 26.Thereafter, pains were taken to explain the various provisions of relevant enactments including the import of the Drugs and Cosmetics Act and the usage of medicine therein. It was also stated that the course undergone by them during the degree including Pharmacology as well as surgery. Therefore, it is too late for them to call the Siddha practitioners as quacks. It was also claimed that there are many of Siddha and Ayurvedic preparations were prescribed by Allopathy Doctors. Therefore, there is no legal bar for the Siddha Doctors prescribing Allopathy medicines. Both systems are based upon modern medicines. The syllabus and question papers that were issued during the course undergone by the petitioner were also referred to as well as various articles were also referred to. 27.The counsel also referred to the order passed by this court in Crl.O.P.(MD)No.11994 of 2010 and batch cases, dated 2.11.2010, wherein a learned Judge quashed the FIR registered against the members of the petitioner association. The learned counsel also referred to a circular issued by the State Government, dated 15.6.2010 by the Health and Family Welfare Department to the Director General of Police, wherein after referring to the cases earlier filed by the petitioner association, the Director General of Police was directed as follows: "I am therefore to request you to instruct the police officers in the Districts not to intervene with the Practice of Registered Practitioners of Siddha, Ayurveda, Unani and Naturopathy who are registered in the Tamilnadu Siddha Medical Council and Tamilnadu Board of Indian Medicine. If any of these ISM Doctors are exclusively doing practice in Allopathy medicine, names of these Doctors may be intimated to the Council and the Government for taking action against them under the Tamilnadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 and Tamilnadu Board of Indian Medicine Rules. The cases of the Doctors who are already under arrest may be reviewed with reference to the above clarifications." 28.They also submitted that the State Government had issued G.O.Ms.No.248, Health and Family Welfare Department, dated 8.9.2010 under the Drugs and Cosmetics Rules, allowing to register the medical practitioners under the Indian Medical Central Council Act in the II, III and IV schedule and Tamilnadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 registered under the III Schedule and registered in the Medical Register of the State maintained under various Acts practicing the modern scientific system of medicine for the purpose of Drugs and Cosmetics Act. Therefore, merely because they are prescribing Allopathy medicine as a part of their treatment procedure, they cannot be prosecuted. 29.Unfortunately, the official respondents have not filed any counter affidavit. It is the first respondent who has filed a counter affidavit. The first respondent had stated that the term of quack is defined by the Supreme Court in Poonam Verma Vs. Ashwin Patel reported in 1996 (4) SCC 332. It means a person who does not have knowledge of a particular system of medicine but practices in that system is a Quack and a mere pretender to medical knoweldge or skill or to put it differently as charlatan. 30.It was submitted that in W.P.No.1598 of 2001, dated 19.8.2008, this court in paragraph 7 had observed as follows: "7.It is also seen that the Government of Tamilnadu had taken a policy decision not to regularise the practice of unqualified medical practitioners, considering the public welfare and in view of the fact that adequate number of registered medical practitioners in Modern Medicine, Indian Medicine, Homeopathy, etc., are available to cater to the needs of the public. Regulating the practice of unqualified medical practitioners would result in the loss of precious human lives and it will also pose various health hazards. Unless the members of the petitioner Association are possessing the required qualifications, as prescribed by the recognised University and unless they are registered in their respective Medical Councils they cannot be permitted to practice." 31.Thereafter, in W.P(MD).No.2267 of 2009, dated 24.8.2009, this court after referring to Dr.Mukhtiar Chand case and Poonam Verma's case (cited supra), in paragraph 8 had observed as follows: "8.The petitioner has filed the Chart of duties and responsibilities of Pharmacists in the typed set of papers. Even under the said chart a pharmacist is only entitled to dispense with the drugs and he shall not do so without prescription by the medical officer. Therefore, merely because the petitioner possessing a Diploma in pharmacy and stated to be running a medical shop, he is not entitled to dispense drugs without a prescription from an authorised medical officer. Further the petitioner has stated in the affidavit that he is assisting the patients by administering injunction and taking blood samples, at no stretch of imagination the petitioner shall go on with such activities in his medical shop on the strength of having studied such procedure in his diploma course. The Chart of duties also placed an embargo on the petitioner that he should not on any account prescribe medicine for patient on his own. An inclusion of a particular subject or a nature of studies in the curriculum of a course, cannot be used by the petitioner to state that he is entitled to practise the same. If such interpretation is given, then the very purpose of enacting the Indian Medical Council Act and maintaining the list of registered practitioner would be an empty formality. It is needless to state that as long as the petitioner confines himself to the sphere of activity for which he is authorised and for which purpose he holds the qualification, he cannot apprehend of any harassment in the hands of the police. Further in the event of a complaint being lodged with the jurisdictional police, the petitioner cannot seek for a blanket order that such complaint cannot be investigated." 32.Subsequently in Dr.K.Abdul Muneer and another Vs. The State of Tamil Nadu and others reported in 2010 (4) CTC 88, vide judgment, dated 12.2.2010, a learned Judge after referring to Dr.Mukhtiar Chand case and Poonam Verma's case (cited supra) and Yash Ahuja Vs. Medical Council of India reported in 2009 (12) Scale 687 in paragraphs 30 and 31 had observed as follows: "30.The grievance of the Petitioners are on account of the raid conducted by the Police Authorities in their clinic on account of their practice in Allopathic Medicine along with Unani Medicine. The Director of Medical Sciences in his counter affidavit has categorically stated that the Unani Practitioners like the petitioners are not entitled to practice in the system of Allopathic Medicine. The petitioners have also no case that they are qualified in the Allopathic system of medicine. The Petitioners are taking shelter under the brief training given to them during their internship. The training which the Petitioners have undergone during the time of house surgeoncy was only for the purpose of completing the course as per the Regulations. During that particular period of six months, the petitioners were given training in as many as seven departments viz., Obstetrics, Gynecology, Medicine, Surgery, Pediatrics, E.N.T. and Ophthalmology. The training for a brief period given to the petitioners were not for the purpose of practicing in the system of Allpathic Medicine or to administer modern medicine. It was only as part of their curriculum to get the degree in BUMS they have undergone such training. The training received by the Petitioners in the Government Hospital will not qualify them to practice in the Allopathic system of medicine. So long as there is no entry of the Petitioners name in the State Register maintained by the statutory authorities under the Indian Medical Council Act, 1956, it is not open to them to practice in the Allopathic Medicine. 31.There is no dispute that Ayurveda, Siddha, Unani and allopathic and homeopathic system of medicines have got their own history, heritage, advantages and importance. It is not possible to ignore our traditional, indigenous system of medicine and the service rendered by the Medical practitioners of Indian Medicine for the cause of public health. There is no restriction for practicing the Indian Medicine by the qualified practitioners. The problem would arise only when they attempt to practice the allopathic system of medicine without a Degree and training in the modern system of medicine." 33.Further, the matter was taken on appeal in W.A.No.755 of 2010. A division bench of this court by its judgment, dated 8.6.2010 dismissed the writ appeal. In paragraph 6, the division bench had observed as follows: "6.Taking clue from the last paragraph of the said circular, learned senior counsel submitted that the appellants have already undergone training, which is evident from page No.17 of the typed set of papers viz., the completion certificate issued by the Government Royapettah Hospital, Chennai-14 in respect of the appellants for the period of training undergone by them from 01.07.1990 to 16.07.1990; therefore they are entitled for practising in the Indian Medicine and the learned Single Judge should have considered the same and allowed the appellants to practice in Allopathic medicine. Once again, we went through the entire materials available on record and we are of the considered opinion that the appellants have undergone training in Indian Medicine only for a period of 15 days, which is not sufficient for allowing the appellants to practice in Allopathic Medicine. Further, the circular issued by the Central Council of Indian Medicine on 19.05.2004 is prospective in operation and unless it is specifically stated in the said circular that it must be given retrospective effect, the appellants cannot be allowed to practice Allopathic Medicine based on the said circular. As held by the Hon'ble Supreme Court of India in the case reported in (1998) 7 SCC Pg.579 referred to supra, a harmonious reading of section 15 of the 1956 Act and Section 17 of the 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian Medicine or the Central Register of Indian Medicine to practise modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of the 1956 Act. In the case on hand, the qualification of the appellants are not registered in the State Medical Register and therefore, they are not entitled to practice Allopathic medicine. Moreover, in the definition of "Indian medicine" given in the circular dated 19.05.2004, nothing is stated about the registration." 34.In W.P.No.2722 of 2010, dated 30.3.2010, another learned Judge of this court after referring to all previous cases held that omnibus prayer of the petitioner association cannot be granted. But if any member is individually aggrieved by any action taken, they can challenge it before the competent court and no blanket order can be granted. Further, the State Government had taken a policy decision not to regularise the practice of an unqualified medical practitioners. Considering the public welfare and unless the member of the petitioner association possesses required qualification as prescribed by the recognized University and unless they have registered with respective medical council, they cannot be permitted to practice. 35.In the light of the judgments of this court, the petitioners contended that any Doctor who has registered under the Siddha system of medicine, if he violates any condition, he can be punishable under the Indian Medical Council Act. Likewise, the Indian Medicine Central Council Act, 1970 is to regularize the practice of Siddha medicine by enrolling the members of the council. Therefore, the members who have registered under various councils can practice only the system of medicines for which they were qualified. Likewise if they are not registered themselves in the State register under the Indian Medical Council Act, 1950 cannot practice Allopathy. Both the Indian Medical Council Act and the Indian Medicine Central Council Act though they are statutory bodies, the members registered under each of the council can only practice for which they have been licensed. The Central Council of Indian Medicine had issued a notification, dated 19.5.2004 permitting the qualified practitioners of Ayurvedic, Siddha, Unani Tibb are eligible to practice respective systems with modern Scientific medicine including Surgery, Gynecology, Obstetrics, Anesthesiology, ENT, Ophthalmology, etc based on the training and teching. 36.But the Medical Council of India had issued a notification on 11.3.2002 and published in the Gazette dated 6.4.2002 in the following lines: "No person other than a doctor having qualification recognized by Medical Council of India and registered with Medical Council of India / State Medical Council(s) is allowed to practice Modern system of Medicine or Surgery. A person obtaining qualification in any other system of medicine is not allowed to practice Modern system of Medicine in any form." 37.It was contended that the notification issued by the Central Council of Indian Medicine was beyond its power, but the syllabus, curriculum and training in the two systems are different. Dr.Muthtiar Chand case (cited supra) do not help the case of the petitioners. On the other hand, it only strengthens the stand of the respondents. An harmonious reading of the Medical Council Act, 1956 and the Central Council of Indian Medicine Act was only mean a person enrolls either under the State register of Indian Medicine or the Central register of Indian Medicine can practice modern scientific medicine in any of its branches unless that person is also enrolled under the State Medical Register of 1956 Act. Thereafter, it was argued that the syllabus between the two courses are different and what the Doctor under the Indian medicine system had is only the birds eye view of the subject and not enough to practice Allopathy medicine. 38.Further, a reference was also made to a judgment of the Supreme Court in Yash Ahuja and others Vs. Medical Council of India and others reported in 2009 (12) Scale 687 to contend that under the Indian Medical Council Act even medical degrees from other countries were not recognised directly and those Doctors will have to undergo screening test. Each system, i.e. Ayurvedic, Siddha, Unani, Allopathy and Homeopathy have got their own history, heritage, advantages and importance and so long as they are practicing within their system, there will be no difficulty, but if they transgressed their limits, certainly, they are liable for an action. While Ayurvedic medicines are derived from Herbs, Siddha medicine is developed from plants and metals and Allopathy medicines are made from chemicals. Though they are dealing with common patient, each system has got its own regime of treatment. Therefore, it was stated that the petitioners cannot be allowed to treat any patient with Allopathy medicine and that will be a clear case of transgression of their limits. 39.A reference was made to a latest judgment of the Supreme Court in Rajasthan Pradesh V.S.Sardarshahar and another Vs. Union of India and others reported in 2010 (6) MLJ 82 (SC), wherein the Supreme Court in paragraph 42 had observed as follows: "42.In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a "little Indian" guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates. Question of entertaining the issue of validity of Entry No.105 to the Second schedule to the Act 1970 i.e. "to 1967" does not arise as it is not a cut-off date fixed by the Statutory Authority rather a date, after which the qualification in question was not recognised. Hindi Sahitya Sammelan itself admitted tht the Society was not imparting any education. It had no affiliated colleges. It merely conducts the test. The Society never submitted any application after 1967 before the Statutory Authority to accord recognition and modify the Entry No.105 to Part I of Schedule II to the Act 1970. Submissions to the effect that 1953 Act conferred privileges upon the Vaidyas in exceptional circumstances to practice and any restriction to practice unless the names are entered in the Central Register is arbitrary and violative of statutory provisions of the State Act, are preposterous for the reason that such privileges, if are repugnant to the provisions of Act 1970, cannot be availed by operation of the provisions contained in Article 254 of the Constitution. Thus, such a restriction cannot be held violative of equality clause enshrined in Article 14 of the Constitution." In the context of the above, the first respondent had contended that the petitioner's association writ petition should be dismissed. The earlier order having become final, they will operate as res judicata against the contentions raised by the petitioner. 40.In the light of the rival pleadings, two questions arise for consideration. The first was whether the first respondent association can be given a carte blanche to find out as to who are all practicing quackery and on that basis, the police can be directed to proceed against those individuals in a criminal court. But, if such a power is given to the practitioners of one system, it will naturally result in witch hunting of others who did not have licence to practice in Allopathic system of medicine. A reading of all the earlier orders did not indicate that if a person is having licence to practice under a particular system of medicine and registered under the respective council, he can be simply proceeded for the alleged transgression of their limits. If a person who did not have any degree under any system and if he practices any form of medicine, they can be easily identified as a quack and can be proceeded on a complaint even under the provisions of IPC. In respect of violation of any professional conduct or ethics under each system for which separate registration under a council is provided. Hence each council will be the only authority to deal with those persons who violate their professional ethics and conduct. Even in those cases, there is no difficulty because each of the councils were empowered by a Central enactment and fully geared to deal with such contingencies. 41.A further question will arise that if a Doctor under the system of Indian medicine prescribed Allopathic drugs, whether it would amount to violation of Indian Medicine Council Act? In fact, the Government Order issued by the State Government in G.O.Ms.No.248, Health and Family Welfare Department, dated 8.9.2010 permits such of those practitioners to be brought under the registered practitioner in terms of Rule 2(ee)(iii). It is the statutory order that takes out the taboo of such of those Indian medicine doctors prescribing even Allopathy medicine. In the judgment in Dr.Muthtiar Chand's case (cited supra), the said issue has been dealt with and the term modern medicine has been defined. There is lot of misconception about the Doctors who are qualified under the Indian medicine and having valid degree as well as registration under the statutory council being dealt with by the police solely at the instance of the first respondent association and treating them as criminals. If allowed it will certainly bring disrepute to them in the eye of public and will make it appear that the system of Indian medicine comprises of only quacks or non professionals. Such can never be the stand of any Government. The issues to merit and demerits of each system has to be scientifically established. Ultimately, it is for the people to apt for a particular system of treatment. The faith of the people matters more than any other criteria. The legal interpretation given by the court can only ultimately guide to deal with complaints of malpraxix. But certainly the police cannot be allowed to take an initiative in such matters. 42.Even in cases of medical negligence, the Supreme Court had laid down several restrictions. In many cases, the complaints of medical negligence before the Consumer forum or criminal courts have been found fault with. In matters of criminal negligence, the Supreme Court has now held that such conduct must first be enquired into by experts in the field and then only the criminal court can deal with such matters. 43.While talking about the system of medicine and denial of access by poor to this institution, the Supreme Court in Samira Kohli Vs. Dr.Prabha Manchanda and another reported in 2008 (2) SCC 1 in paragraphs 38, 39, 40 and 43 had observed as follows: "38.In India, majority of citizens requiring medical care and treatment fall below the poverty line. Most of them are illiterate or semi-literate. They cannot comprehend medical terms, concepts, and treatment procedures. They cannot understand the functions of various organs or the effect of removal of such organs. They do not have access to effective but costly diagnostic procedures. Poor patients lying in the corridors of hospitals after admission for want of beds or patients waiting for days on the roadside for an admission or a mere examination, is a common sight. For them, any treatment with reference to rough and ready diagnosis based on their outward symptoms and doctor's experience or intuition is acceptable and welcome so long as it is free or cheap; and whatever the doctor decides as being in their interest, is usually unquestioningly accepted. They are a passive, ignorant and uninvolved in treatment procedures. 39.The poor and needy face a hostile medical environment - inadequacy in the number of hospitals and beds, non-availability of adequate treatment facilities, utter lack of qualitative treatment, corruption, callousness and apathy. Many poor patients with serious ailments (e.g. heart patients and cancer patients) have to wait for months for their turn even for diagnosis, and due to limited treatment facilities, many die even before their turn comes for treatment. What choice do these poor patients have? Any treatment of whatever degree, is a boon or a favour, for them. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance. 40.The position of doctors in government and charitable hospitals, who treat them, is also unenviable. They are overworked, understaffed, with little or no diagnostic or surgical facilities and limited choice of medicines and treatment procedures. They have to improvise with virtual non-existent facilities and limited dubious medicines. They are required to be committed, service oriented and non-commercial in outlook. What choice of treatment can these doctors give to the poor patients? What informed consent can they take from them? 43.Health care (like education) can thrive in the hands of charitable institutions. It also requires more serious attention from the State. In a developing country like ours where teeming millions of poor, downtrodden and illiterate cry out for health care, there is a desperate need for making health care easily accessible and affordable. Remarkable developments in the field of medicine might have revolutionalised health care. But they cannot be afforded by the common man. The woes of non-affording patients have in no way decreased. Gone are the days when any patient could go to a neighbourhood general practitioner or a family doctor and get affordable treatment at a very reasonable cost, with affection, care and concern. Their noble tribe is dwindling. Every doctor wants to be a specialist. The proliferation of specialists and super specialists, have exhausted many a patient both financially and physically, by having to move from doctor to doctor, in search of the appropriate specialist who can identify the problem and provide treatment. What used to be competent treatment by one general practitioner has now become multi-pronged treatment by several specialists." 44.In fact, anticipating that there may be large scale of complaints against medical professionals from the aggrieved patients and others, the Supreme Court had warned Courts and the Consumer forums to keep several factors in mind in cases relating to medical negligence and not to take a view which would have in fact disservice to the public vide its judgment in Martin F. D.'Souza Vs. Mohd. Ishfaq reported in 2009 (3) SCC 1. Thereafter, the Supreme Court held that in such a case, the following safeguards should be provided to Doctors at paragraph 106 which reads as follows: "106.We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. 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 parameters laid down in Jacob Mathew case1, otherwise the policemen will themselves have to face legal action." Therefore, as apprehended by the Supreme Court that leaving the choice to the policemen to be let loose on the Doctors who are actually having qualified medical degrees will not only be undesirable but will be disservice to the public. 45.Once again reiterating the principles laid down in Jacob Mathew Vs. State of Punjab reported in 2005 (6) SCC 1, the Supreme Court in INS.Malhotra (Ms) Vs. Dr.A.Kriplani and others reported in 2009 (4) SCC 705, in paragraph 49 had observed as follows: "49.Again, it has been held that indiscriminate prosecution of medical professionals for criminal medical negligence is counterproductive and does no service or good to the society. "28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. 29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason-whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society." (Jacob Mathew case2, SCC pp.22-23, paras 28-29)" 46.The principles laid down in Jacob Mathew's case (cited supra) once again was reiterated and followed in Nizam's Institute of Medical Sciences Vs. Prasanth S.Dhananka and others reported in 2009 (6) SCC 1. 47.In the light of the above, if it is seen the Supreme Court is of the opinion that medical professionals must be saved from unjust complaints of negligence or malpraxis and safeguards should be made. No blanket permission can be issued to the police to arrest or to prosecute the so-called quacks identified by the respondent Indian Medical Association. If the IMA as a guild association of Allopathic medical practitioners are aggrieved by any misconduct committed by other medical professionals governed by other systems of medicines, they can make complaints to their professional bodies under which those professionals are registered as they have valid licence and can find remedies. It is only in case where they are able to establish that there persons masquerading as Doctors, then the question of pressing into service anti quackery act will come into play. It will enable them to take that person to be prosecuted by legal methods. 48.The State Government realizing the difficulties faced by such practitioners had issued a circular, dated 15.6.2010, wherein an aggrieved individual was directed to approach the respective council and the Government for taking an appropriate action. Since each of the council is established by the Parliament and having a statutory body to deal with such misconducts, it is appropriate that those councils should be approached in case of any deviation in the licence to practice. The respective councils can also decide whether the members registered under the respective council had transgressed their limits under the licence conditions which were issued under a particular Act of the Parliament. But at no point of time, a person who is having a valid degree and having registered under an enactment can be directed to be proceeded by the police by registering a criminal case against them in a criminal court and that too at the instance of an Association like the first respondent which is not even a statutory body, but a mere association of Doctors practicing under Allopathy System of medicine. 49.In the light of the above, this court is of the view that the order passed by this court in 2010 (4) CTC 798 is held to be a correct position of law. For the sake of repetition, it is observed as follows: "4....it is imperative that no proceedings can be initiated against any of those registered practitioners in Siddha, Ayurveda, Homeopathy and Unani, who are eligible to practice irrespective of the respective system also with Modern Scientific Medicine including Surgery and Gynecology Obstetrics, Anesthesiology, ENT, Opthalmology, etc. Such registration of the medical practitioners with Tamil Nadu Siddha Medical Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical Council as well as such of those qualified doctors who were recognised as such by the Madurai Kamaraj University and Tamil Nadu Dr. MGR Medical University who have been qualified respectively in the system of bachelor of Siddha Medicine and Surgery. If any action had been taken against such of those medical practitioners referred to above, it is needless to state that, such action should be dropped forthwith pending further orders in the Writ Petition." 50.In the light of the above, the writ petition in W.P.(MD)No.7678 of 2010 is disposed of with the above directions. Since all the issues have been decided in W.P.(MD)No.7678 of 2010, the other writ petitions as they do not raise similar contentions must necessarily fail. Hence all the other writ petitions will stand dismissed. In individual cases, where actions have been already initiated (which are now under challenge) and if it is pending before any forum, it is open to the petitioners to approach those forums and take such defences that are open to them. However, there will be no order as to costs. Consequently, connected miscellaneous petitions will stand closed. vvk To 1.The Superintendent of Police, Kanyakumari District at Nagercoil. 2.The Inspector of Police, Colachel Police Station, Kanyakumari District. 3.The Joint Director, Public Health Department, Kottar, Nagerkovil, Kanyakumari District. 4.The Deputy Director, Public Health Department, Krishnankovil, Vadaseri, Nagercoil, Kanakumari District. 5.The Secretary, Department of Health, Indian Medicine and Homeopathy and Family Welfare Department, Fort St. George, Chennai-600 009. 6.The Special Secretary, State of Tamil Nadu, Home Department, Fort St. George, Madras-600 009. 7.The Director General of Police, Kamarajar Salai, Madras-600 004. 8.The Superintendent of Police, Thanjavur District, Thanjavur. 9.The Superintendent of Police, Pudukkottai District, Pudukkottai. 10.The Drug Controller, Arulananda Nagar, Thanjavur. 11.The Chief Secretary, The State of Tamilnadu, Secretariat, Chennai. 12.The Secretary to Government, The State of Tamilnadu, Health & Family Welfare Department, Secretariat, Chennai. 13.The Secretary to Government, The State of Tamilnadu, Home Department, Secretariat, Chennai. 14.The Inspector General of Police, South Zone, Alagar Kovil Road, Madurai-2. 15.The District Collector, Dindigul District, Dindigul. 16.The Superintendent of Police, Dindigul District, Dindigul. 17.The Director, Public Health and Preventive Medicine, DMS Complex, Teynampet, Chennai-18. 18.The District Collector, Nagercoil, Kanyakumari District. 19.The Joint Director of Medicines, Sivagangai 20.The Superintendent of Police, Sivagangai. 21.The Commissioner and Secretary to Government, The State of Tamilnadu, Health and Family Department, Secretariat, Chennai-600 009. 22.The Deputy Director, Public Health Department, Meenakshi Nayakkan Patti Post, Dindigul District. 23.The Inspector of Police, Chanarpatti Police Station, Dindigul District

Can doctors be prosecuted for medical negligence ???

2013-11-23T22:48:00.004+05:30

From https://www.facebook.com/groups/176583359210439/permalink/178323772369731/ The question of liability of doctors for negligence came before the Supreme Court of India in the case of Jacob Mathew Vs State of Punjab (2005). On 15th February 1995, a patient was admitted in a private ward of the CMC hospital, Ludhiana. The patient felt serious difficulties in breathing at about 11pm on the night of 22nd February 1995. Patient’s son immediately contacted the nurse who in turn called the doctors. After about 20-25 minutes Dr. Jacob Mathew and Dr. Allen Joseph came to the patient’s room and connected an oxygen cylinder to patient’s mouth, but the cylinder was found empty. No other cylinder was available in the room at that time. However the patient’s son managed a cylinder from the adjoining room but no arrangement was made to make the cylinder functional. 5-7 minutes were wasted in this process and by that time the patient died. An F.I.R was lodged in this connection and the judicial magistrate Ist class Ludhiana framed charges under sections 304A and 34 IPC against the two doctors for negligence. A revision petition was filed by both the doctors in the court of sessions judge but the same was dismissed. The High Court also dismissed the petition filed by both the doctors for quashing the FIR and all subsequent proceedings. The aggrieved doctors then filed a petition before the Supreme Court of India by special leave. The main issue before the court in this case was to ascertain the liability of doctors for negligence under civil and criminal law. The hon’ble court observed that, there is a difference in the concept of negligence under civil and criminal laws. In criminal law, the amount and degree of negligence is determinative of liability. Mens rea or mental element cannot be excluded in case of criminal negligence. For the existence of criminal rashness or negligence it is to be found that the rashness was of such degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The professionals such as lawyers or doctors posses special skills for performing special tasks, but that does not mean that they can assure about the positive results in every dealing. What they can assure is that, they posses the requisite skill in their respective branch of profession and they will exercise their skill with reasonable competence while performing the task. It is not compulsory for every professional to posses the highest level of skill in his respective branch of profession. A mere accident or deviation from the normal professional practice is not necessarily an evidence of negligence. Sometimes there may be an error of judgment while making a choice between the available procedures. But as long as the adopted procedure is found to be acceptable by medical science as on that date, the medical practitioner cannot be held negligent merely because he choose to follow one procedure and not the other resulting in failure. The court further observed that if a doctor is kept under the fear of legal action then he cannot perform a successful treatment. A doctor under the fear of facing a criminal prosecution in the event of failure for whatever reasons, whether attributable to him or not, can never go for a successful treatment. Even the doctors may feel it better to leave a terminal patient untreated when the chances of success may be less than 10% or so. In case of serious patients who are in a state of ‘coma’ or in case of grave emergencies where the patients death is almost certain, the doctors may try for a last effort towards saving the life, but if there is a fear of criminal prosecution then the doctors may not go for taking a risk and facing a legal action. “Negligence” with reference to doctors necessarily calls for a different treatment. Our criminal law has invariably placed the medical professionals on a different pedestal from the ordinary mortals. The Indian Penal Code under the chapter of general exceptions provide exemptions for acts not intended to cause death , done by consent in good faith for person’s benefit. Section 92 provides exemptions for acts done in good faith for the persons benefit without his consent though the act causes harm to that person and the person has not consented to suffer such harm. However doctors can also be prosecuted for an offence containing rashness or negligence, but there is a need for protecting doctors from frivolous and unjust prosecutions. The hon’ble court formulated the following guidelines to be followed, which should govern the prosecution of doctors for offences of which criminal rashness is an ingredient: 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. A doctor accused of rashness and negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. The court finally held that, even if all the averments made in the complaint of the present case are proved, they do not make out a case of criminal rashness or negligence on the part of the accused appellant. The accused appellant cannot be prosecuted under section 304A IPC, however the hospital may be liable in civil law.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH

2013-10-15T22:50:00.000+05:30

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Execution Application No. : 21 of 2013 Date of Institution : 11.06.2013 Date of Decision : 19/08/2013 1. Mrs.Suman aged about 30 years w/o Desraj, resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 2. Desraj aged about 35 years s/o Pitamber, resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 3. Vikas aged about 10 years s/o Desraj, through his father and natural guardian Desraj, resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 4. Jyoti aged about 8 years s/o Desraj, through her father and natural guardian Desraj, resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 5. Vikas aged about 5 years s/o Desraj, through his father and natural guardian Desraj, resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. ……Applicants/Decree Holders/ Complainants V e r s u s Government Multi-Speciality Hospital, Sector 16, Chandigarh, through its Director-Principal/Medical Superintendent. .... Judgment Debtor/Opposite Party No.1 Execution Application under Section 27 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER. Argued by: Sh. Pankaj Chandgothia, Advocate for the applicants/Decree Holders/Complainants. Sh. Jatinder Singh, Govt. Pleader for Judgment Debtor No.1/Opposite Party No.1. PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Execution Application, under Section 27 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), has been filed by the Decree Holders/complainants, on the averments, that they (complainants), filed Consumer Complaint bearing No.06 of 2011, in this Commission, which was decided, in their favour, vide order dated 01.03.2012. It was stated that the Judgment Debtors/Opposite Parties (1 to 4), were directed, jointly and severally, to pay a sum of Rs.4 lacs, as compensation, within a period of one month, from the date of receipt of a certified copy of the order dated 01.03.2012, alongwith litigation costs, to the tune of Rs.50,000/-. It was further stated that the Government Multi-Speciality Hospital, Sector 16, Chandigarh/Judgment Debtor No.1/Opposite Party No.1, after payment of a sum of Rs.1 lac towards compensation, and Rs.12,500/-, towards cost of litigation, took up the stand, that it was liable to pay only one fourth of the amount awarded, as it was only one of the four parties, in the Consumer Complaint, aforesaid. It was further stated that the stand taken up, by Judgment Debtor No.1/Opposite Party No.1, is not, in accordance with the provisions of law. It was further stated that since the order dated 01.03.2012, passed by this Commission, in Consumer Complaint, bearing no. 06 of 2011, directing the Opposite Parties, including Judgment Debtor No.1/Opposite Party No.1, jointly and severally, to pay the amount awarded, therefore, it (Judgment Debtor No.1/Opposite Party No.1), was alone liable to pay the entire amount aforesaid. It was further stated that even the guilty Doctors and Technician were in the employment of Judgment Debtor No.1/Opposite Party No.1, at the relevant time, but now their addresses were not available, with the Decree Holders/ complainants, and, therefore, it would be very difficult to recover the amount, from the said Doctors and Technician. It was further stated that more than one year had lapsed, from the date of passing the order dated 01.03.2012, but Judgment Debtor No.1/Opposite Party No.1, had failed to comply with the same. It was further stated that Judgment Debtor No.1/Opposite Party No.1, has not filed any appeal, against the order dated 01.03.2012, passed by this Commission, and, therefore, the said order against it, had already become final. It was further stated that, thus, Judgment Debtor No.1/Opposite Party No.1, is liable to pay a sum of Rs.3 lacs, alongwith penal interest @12% P.A., w.e.f 21.01.2011 and Rs.37,500/-, towards litigation costs. Accordingly, the prayer was made that Judgment Debtor No.1/Opposite Party No.1, be punished, in accordance with the provisions of Section 27 of the Act. 2. Notice of this application, was given to Judgment Debtor No.1/Opposite Party No.1, which filed reply, by way of affidavit of Dr.Rajiv Vadehra, Medical Superintendent-cum-Joint Principal Medical Officer-cum-Director Health and Family Welfare, Chandigarh Administration. It was stated that the Decree Holders/Complainants, deliberately concealed the material facts, from this Commission i.e. Dr. Manpreet Kaur, one of the Opposite Parties, in the complaint, had filed an appeal, before the National Consumer Disputes Redressal Commission, New Delhi, against the order dated 01.03.2012, passed by this Commission, which (National Consumer Disputes Redressal Commission, New Delhi), vide order dated 06.07.2012, stayed the same (impugned order), qua her. It was further stated that, so far as the other two Judgment Debtors/Opposite Parties No.2 and 3, were concerned, as per the information, they also filed appeals, and got stay order, qua them. It was further stated that Judgment Debtor No.1/Opposite Party No.1, had already paid a sum of Rs.1 lac as compensation. and Rs.12,500/-, as cost of litigation, as per its liability of one fourth share of the total amount awarded, and, as such, it complied with the order dated 01.03.2012. It was further stated that out of the other three Opposite Parties in the complaint, who were in the employment of the Hospital, at the relevant time, two were employed on temporary/contractual/tenure service and one on deputation from Punjab, who had since been repatriated. It was further stated that since Judgment Debtor No.1/Opposite Party No.1 had already complied with its part of the order, the remaining amount could be recovered from it. 3. We have heard the Counsel for the Decree Holders/complainants, Govt. Pleader for Judgment Debtor No.1/Opposite Party No.1, and, have gone through record of the case, carefully. 4. Consumer Complaint No. 06 of 2011, on 21.01.2011, was filed, against the following Opposite Parties:- 1. Government Multi-Speciality Hospital, Sector 16, Chandigarh through its Director Principal, . 2. Mrs.Kirti Sood, Lab Technician, Government Multi-Speciality Hospital, Sector 16, Chandigarh through the Medical Superintendent, GMSH, Sector 16, Chandigarh. 3. Dr.Navdeep Intern, Government Multi-Speciality Hospital, Sector 16, Chandigarh through the Medical Superintendent, GMSH, Sector 16, Chandigarh. 4. Dr.Manpreet, House Surgeon, Government Multi-Speciality Hospital, Sector 16, Chandigarh through the Medical Superintendent, GMSH, Sector 16, Chandigarh. 5. Post Graduate Institute of Medical Education and Research (PGI), Sector 12, Chandigarh through its Medical Superintendent 5. The name of Opposite Party No.5, was deleted vide order dated 25.01.2011. Ultimately, the complaint was accepted, by this Commission, vide order dated 01.03.2012, and the Opposite Parties (1 to 4) were jointly and severally directed as under:- “For the reasons recorded above, the complaint is allowed with costs. The Opposite Parties are jointly and severally directed to pay a sum of Rs.4,00,000/- as compensation to the complainants. The Opposite parties shall also pay to the complainants Rs.50,000/- as cost of litigation. Opposite Party No.1 is also directed to bear all the expenses, which may be incurred on the future treatment of complainant No.1, in any government hospital/health centre/dispensary etc. This order be complied with, by the Opposite Parties within one month, from the date of receipt of a certified copy of the same, failing which, they shall be liable to pay the amount of Rs.4 lacs alongwith penal interest @ 12% p.a., to the complainants, from the date of filing of complaint i.e. 21.01.2011, till its realization, besides costs of litigation”. 6. From the afore-extracted operative part of the order dated 01.03.2012, it is evident that Opposite Parties No.1 to 4, were jointly and severally held liable to pay an amount of Rs.4 lacs, as compensation and cost of litigation, to the tune of Rs.50,000/-. The Opposite Parties were required to jointly and severally comply with the order dated 01.03.2012, within one month, from the date of receipt of a certified copy of the same, failing which, they were liable to pay the amount of Rs.4 lacs, alongwith penal interest @ 12% p.a., to the complainants, from the date of filing the complaint i.e. 21.01.2011, till realization, besides payment of costs of litigation. As per law, once, the Opposite Parties were held, jointly and severally liable to pay the amount, awarded by this Commission, vide order dated 01.03.2012, the Decree Holders/Complainants, could recover the amount, so payable, from one Judgment Debtor/Opposite Party, or from all the Judgment Debtors/Opposite Parties. If the Decree Holders/complainants wanted to recover the amount, so awarded, vide order dated 01.03.2012, from one Opposite Party i.e. Judgment Debtor No.1/Opposite Party No.1, then the latter had the remedy to recover the amount, from other Opposite Parties subject, however, to the final decision of appeals already filed by them, before the National Consumer Disputes Redressal Commission, New Delhi. The Judgment Debtors/ Opposite Parties could not bifurcate their liability, of their own. They were required to comply with the order, passed by this Commission. Admittedly, Judgment Debtor No.1/Opposite Party No.1, has not filed any appeal, against the order dated 01.03.2012, and has already paid a sum of Rs.1,12,500/- (Rs.1 lac as compensation and Rs.12,500/- as cost of litigation), as per its own bifurcation of liability. As stated above, it could not do so. Since, neither any appeal has been filed by Judgment Debtor No.1/Opposite Party No.1, nor the question of stay of the order impugned, qua it (Judgment Debtor No.1/Opposite Party No.1), by the National Consumer Disputes Redressal Commission, New Delhi, could ever rise, in such circumstances, Judgment Debtor No.1/Opposite Party No.1, could not deny the payment of the entire amount, awarded by this Commission, vide order dated 01.03.2012 minus (-) the one, already paid by it, by bifurcating its liability, as per its own volition. The Execution Application, thus, is maintainable against Judgment Debtor No.1/Opposite Party No.1, for recovery of the entire awarded amount, from it. 7. No doubt, First Appeal No. 175 of 2012, against the order dated 01.03.2012, passed in Consumer Complaint bearing No. 06 of 2011, by this Commission, was filed by Dr. Manpreet Kaur/Opposite Party No.4, in which, the National Consumer Disputes Redressal Commission, New Delhi, passed the order dated 06.07.2012, the operative part of which, reads as under:- “Subject to deposit of Rs.1 Lac in this Commission within four weeks, operation of the impugned order shall remain stayed qua the appellant. List along with FA 174/2012 in due course” 8. Similarly, First Appeal No. 463 of 2012, against the order dated 01.03.2012, passed in Consumer Complaint bearing No. 06 of 2011, by this Commission, was filed by Dr. Navdeep Kaur/Opposite Party No.3, in which, the National Consumer Disputes Redressal Commission, New Delhi, passed the order dated 14.08.2012, the operative part of which, reads as under:- “Subject to deposit of Rs.1 Lac (Rupees One Lac) in this Commission within four weeks, operation of the impugned order shall remain stayed qua the appellant” 9. Similarly, First Appeal No. 751 of 2012, against the order dated 01.03.2012, passed in Consumer Complaint bearing No. 06 of 2011, by this Commission, was filed by Mrs. Kirti Sood/Opposite Party No.2, in which, the National Consumer Disputes Redressal Commission, New Delhi, passed the order dated 10.04.2013, the operative part of which, reads as under:- “Subject to deposit of Rs.1 lakh within 4 weeks, operation of the impugned order as against appellant shall remain stayed” 10. From the afore-extracted orders, passed by the National Consumer Disputes Redressal Commission, New Delhi, in the appeals, filed by Mrs. Kirti Sood/Opposite Party No.2, Dr. Navdeep Kaur/Opposite Party No.3 and Dr. Manpreet Kaur/Opposite Party No.4, it is evident, that operation of the impugned order was stayed, only qua them, subject to deposit of Rs.1 lac each. It was not that the entire order dated 01.03.2012 was stayed. So far as the order passed against Judgment Debtor No.1/Opposite Party No.1, by this Commission, is concerned, as stated above, neither it filed an appeal, against the same (order dated 01.03.2012), nor did the question of grant of any stay, against it, ever arise. Since, neither Judgment Debtor No.1/Opposite Party No.1, filed any appeal, nor the question of any stay, by the National Consumer Disputes Redressal Commission, New Delhi, against it, ever arose, it could not deny its liability to make payment of the remaining amount, to the Decree Holders/complainants, only on the ground, that its liability was limited to the extent of one fourth of the amount awarded, referred to above, and not more than that. As stated above, had the operation of the order, as a whole, qua all the Opposite Parties (1 to 4), been stayed, the matter would have been different. No help, therefore, can be drawn by the Govt. Pleader for Judgment Debtor No.1/Opposite Party No.1, from the orders passed by the National Consumer Disputes Redressal Commission, New Delhi, in the appeals, filed by other Opposite Parties, and stay of operation of the impugned order, having been granted only qua them. The submission of the Govt. Pleader for Judgment Debtor No.1/Opposite Party No.1, therefore, being devoid of merit, must fail, and the same stands rejected. 11. For the reasons recorded above, the Execution Application is accepted, with no order as to costs, qua the Judgment Debtor/Opposite Party No.1. 12. According to the office report a sum of Rs.4,29,916.44 Ps., was due, as on 14.08.2013, against the Judgment Debtor /Opposite Party No.1. The Judgment Debtor /Opposite Party No.1, is directed to make payment of this amount, with interest up-to-date, on or before 27.09.2013, failing which further appropriate orders, under Section 27 of the Act shall be passed. 13. Certified copies of this order, be sent to the Decree Holders/complainants, and Judgment Debtor/Opposite Party No.1, free-of-charge. 14. The office is directed to put up the case file on the date fixed i.e. 27.09.2013, for further proceedings. Pronounced. August 19, 2013 Sd/- [JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/- (DEV RAJ) MEMBER Rg

Blood Transfusion : STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH

2013-10-15T22:48:00.001+05:30

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 6 of 2011 Date of Institution 21.01.2011 Date of Decision 01.03.2012 1. Mrs.Suman aged about 30 years w/o Desraj resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 2. Desraj aged about 35 years s/o Pitamber resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 3. Vikas aged about 10 years s/o Desraj through his father and natural guardian Desraj resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 4. Jyoti aged about 8 years s/o Desraj through her father and natural guardian Desraj resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. 5. Vikas aged about 5 years s/o Desraj through his father and natural guardian Desraj resident of # 176, Block J, Colony No.4, Industrial Area, Chandigarh. .…Complainants Versus 1. Government Multi-Speciality Hospital, Sector 16, Chandigarh through its Director Principal. 2. Mrs.Kirti Sood, Lab Technician, Government Multi-Speciality Hospital, Sector 16, Chandigarh through the Medical Superintendent, GMSH, Sector 16, Chandigarh. 3. Dr.Navdeep Intern, Government Multi-Speciality Hospital, Sector 16, Chandigarh through the Medical Superintendent, GMSH, Sector 16, Chandigarh. 4. Dr.Manpreet, House Surgeon, Government Multi-Speciality Hospital, Sector 16, Chandigarh through the Medical Superintendent, GMSH, Sector 16, Chandigarh. 5. Post Graduate Institute of Medical Education and Research (PGI), Sector 12, Chandigarh through its Medical Superintendent. (OP No.5 deleted vide order dated 25.01.2011). …. Opposite Parties BEFORE: JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER SHRI JAGROOP SINGH, MEMBER Argued by: Sh.Pankaj Chandgothia, Adv. for the complainants Ms.Smriti Dhir, Advocate for OP No.1. Sh.N.P.Sharma, Advocate for OP No.2. Sh.P.K.Mutneja, Advocate for OP No.3. Sh.K.L.Arora, Advocate for OP No.4. ---- MRS. NEENA SANDHU, MEMBER 1. The facts of the case, in brief, are that in the month of December, 2010, complainant No.1-Mrs.Suman was pregnant for nine months and was expecting her baby any day. It was stated that, in order to ensure safe delivery of her baby, under proper medical supervision, she alongwith her husband Desraj-complainant no.2, went to Government Multi-Speciality Hospital (hereinafter referred to as “GMSH”) on 16.12.2010. It was further stated that in GMSH, a medical treatment card was prepared, in the name of Mrs.Suman after taking requisite charges of Rs.10/-. It was further stated that the doctor came to the conclusion that complainant No.1 required blood transfusion, on the same day. She was, therefore, admitted as an in-patient, by Opposite Party No.1. It was further stated that the team of doctors and technicians consisting of Opposite Parties No.2, 3 and 4 i.e. Ms Kirti Sood, Dr. Navdeep and Dr. Manpreet respectively were assigned the duties to handle the case of complainant No.1. It was further stated that the treating doctors directed Sh.Des Raj-complainant No.2, to arrange a unit of Blood for transfusion, by giving him the requisition slip. It was further stated that the blood units were arranged, in time, and given to the attending doctors for transfusion. It was further stated that soon after the blood was transfused to complainant No.1, she started feeling uneasy. It was further stated that her husband-Desraj ran helter-skelter, to inform the doctors/nurses, but the concerned doctors were not available immediately. It was further stated that after sometime, when the patient was attended to, the concerned Doctor took, it casually and informed that everything would be all right. It was further stated that the condition of complainant No.1 deteriorated, so much so, that it resulted into the death of the full-term foetus, and failure of the kidney of complainant No.1. It was further stated that it transpired that the doctors had transfused blood group B+ to Suman, though her blood group was A+.. It was further stated that all the above facts were accepted and endorsed by the Chandigarh Administration itself, on the basis of the inquiry report dated January 3, 2011, submitted by the Sub Divisional Magistrate, South, Union Territory, Chandigarh. The relevant conclusions arrived at, by the Inquiry Officer are as under:- "The Inquiry Committee implicates the following persons in the commission of this gross medical negligent act:- 1. Mrs. Kirti Sood, Lab Technician: She issued the blood bag without cross-checking for the requisite important details of the patient and more particularly the blood group and later on concealing the facts and tampering with the sample. The possibility of destruction of the sample and the blood requisition form cannot be excluded by the Inquiry Committee. 2. Dr.Navdeep, Intern: She initiated the transfusion to the patient without checking and re-checking the requisite details of the patient with the details given on the blood bag and started the transfusion on the presumption that the blood bag lying beside the patient is meant for the patient only, violating all the fundamental blood transfusion protocols. Moreover, she failed to inform her seniors regarding the transfusion and showing gross carelessness and insensitivity failed to monitor the patient. 3. Dr. Manpreet, House Surgeon: The role played by Dr. Manpreet, the House Surgeon is also not a small one. She being wholly responsible for the transfusion of the blood to patients in the labour room, failed to check for the required details in the blood bag with that of the patient’s case sheet as soon as the blood bag was brought and kept on the table by the nursing student. Without even checking for the details on the blood bag she simply passed on responsibility of the transfusion to her amateur/new junior colleague. Moreover, she did not follow up the patient and failed to monitor the patient. 2. It was further stated that the Opposite Parties were negligent, while rendering medical services to complainant No.1. It was further stated that thereafter complainant No.1 was hurriedly referred to the Post Graduate Institute of Medical Education and Research (PGI) by Opposite Party No. 4, on 16.12.2010, itself. It was further stated that due to the aforesaid acts of omission and commission, on the part of the Opposite Parties, the complainants had to incur several expenses for tests and other things, including expensive medicines at the PGI. It was further stated that Complainant No.1, in all probability, will remain bed-ridden for life, requiring heavy medication and intensive medical care. It was further stated that her husband, Desraj used to do labour jobs and earn around Rs.200/- per day for the family, which he will be unable to earn now. It was further stated that the Opposite Parties were negligent and deficient, in rendering service. Hence, this complaint was filed, seeking the following reliefs: i) Rs.5 lakhs towards re-imbursement of medical and other expenses; ii) Rs.15 lakhs towards loss of earnings of husband Desraj, since he will now be unable to earn as he will have to attend to his wife forever (@Rs.5000/- per month for 25 years, life expectancy being 60 years). iii) Rs. 9 lakhs towards loss of earnings of Suman, as she will also be unable to work for her entire life.(@ Rs.2500/- per month for 30 years, life expectancy being 60 years) iv) Rs.54 lakhs towards minimum expected expenditure to be incurred on medicines for an entire lifetime @ Rs. 500/- per day for 30 years as the life expectancy is 60 years. v) Rs. 2 lakh each as token damages for each of the children to compensate them for the physical and emotional loss of mother's love and care. vi) Rs.3 lakhs each as punitive damages against each of the guilty doctors, OP Nos.2, 3 and 4 as token punishment for their medical negligence. 3. In its written version, Opposite Party No.1 stated that the complainant is not a consumer, as defined under Section 2(i)(o) of the Consumer Protection Act, 1986 (for short “the Act”) as the Opposite Party No.1-Hospital, is owned and managed by the Chandigarh Administration and provides services without any charges whatsoever (i.e. free of service) to every person. It was further stated that, as per the records, it was the sixth conception (i.e. a case of grand multipara) of complainant No.1-Mrs.Suman and she had a history of two previous still births. Her hemoglobin was 7.5 gm% (anaemic) on 16.12.2010. It was further stated that it could not be said with certainty, that Intra Uterine Death(IUD) occurred as a consequence of wrong transfusion of blood. The reason for fatal distress may be the other reason. It was further stated that complainant No.1 was referred to PGI, Chandigarh, for further treatment. It was further stated that thorough inquiry was got conducted by the Chandigarh Administration and Opposite Parties No.2, 3 and 4 were found negligent, in their duties, and disciplinary action, had already been initiated, against them, as per law. It was denied that complainant No.1 would remain bed ridden for life and require medication and medical care for the whole life. It was further stated that, OP No.1-Hospital was neither deficient, in rendering service nor indulged into unfair trade practice. The remaining averments were denied being wrong, 4. In her written statement, Opposite Party No.2 stated that the complaint was not maintainable, as the matter, in controversy, required elaborate and detailed evidence and, as such, it could not be adduced in the summary procedure. It was further stated that the inquiry report submitted by the Inquiry Officer was patently illegal, because the entire sequence of events as enumerated, in the said inquiry report, relied upon, related to the co-admission and hospitalization of two patients by the same name the first being (1) Suman w/o kedarnath aged about 26 years with CR no. 06189422 blood group being B+ and (ii) Suman w/o Desraj aged about 30 years with CR no. 11098715 whose blood group was A+. It was further stated that after extensive enquiry, the said Inquiry Officer had failed to unearth that third Suman w/o Shanker aged about 30 yrs with CR no.12148694 whose blood group was A+ was also co-admitted in the same hospital and ward as the other two Suman’s. It was further stated the third Suman was also issued one unit of blood by the Blood Bank on 16.12.2010 against the receipt of Rs.150/- (Annexure R-2). It was further stated that the basic facts that there being not two but three patients, admitted at the same time, in the hospital, having the same name, had been missed out by the Inquiry Officer. It was further stated that, thus, the inquiry report dated 03.01.2011 was not authentic being baseless. It was further stated that at page 8-53 of the said inquiry report, it was wrongly mentioned that since there was no other lady Lab Technician, in the Blood Bank, in the morning shift of 16.12.2010, between 0800-1400 hours, hence the answering Opposite Party, received both the samples, from the husbands of both Suman’s on that day. It was further stated that the bare perusal of both the entire (A) blood Grouping Register as maintained and duly certified by the Medical Officer/BTO, Blood Bank for the period 1.12.2010 till 20.12.2010 as also (B) Blood Issue Register, which was also duly certified by the Medical Officer/BTO, Blood Bank, for the period 1.12.2010 till 19.12.2010 showed that Ms. Shivani, Lab Technician of the Blood Bank was present on 16.12.2010 prior to the joining of the duty of Opposite Party No.2 who remained present during the period 1400-2000 hours only on that day after which Ms. Shivani again joined the duty for the night shift w.e.f. 2000 hours of 16.12.2010 to 0800 hours of 17.12.2010. Reliance was placed upon the extracts from Blood Group Register (Annexure R-3) at internal page no.14 Sr.No.12, where a sample of blood as received was type tested for blood group and found to be A+ of Mrs.Suman with Cr. No. GYN/12148694 (this being the 3rd Suman ignored by the Inquiry Officer). This showed that Opposite Party No.2 joined duty after the said Ms.Shivani as her signatures were found starting with Sr. No.15 onwards as per Blood Issue Register (Annexure R-4) at internal page No.27 Serial No.5769 where a Blood Unit was issued by Ms. Shivani to the attendant of Suman with CR No.12148694 Blood Type being A+ being the same very 3rd Suman. It was further stated that the issuance of blood unit by Opposite Party No.2 started with Sr. No.5772 on internal page No.28. It was further stated that, Opposite Party No.2 was not negligent in performing her duties hence the complaint qua her be dismissed. The remaining averments were denied being wrong. 5. In her written version, Opposite Party No.3-Dr.Navdeep, stated that she was an intern and was undergoing internship training in OP No.1-Hospital under Opposite Party No.4, which was a part of the MBBS course in which a job training is given to MBBS students after they have completed 4-1/2 years of study. It is a kind of practical training. It was further stated that the intern is not a person who is providing any service, as per the provisions of the Consumer Protection Act, 1986. It was further stated that the norms and protocols are taught to the trainee, on a practical level, in the hospital, during the period of internship. It was further stated that, during this period, the intern is entrusted with clinical responsibility under direct supervision of Senior Medical Officer and he/she could not work independently. It was further stated that the blood transfusion was started, in the Clean Labour Room and no attendant of the patient was allowed therein. It was further stated that there had been quick pregnancies in relation to complainant No.1, without affording her any time, to recover her strength. Two earlier still births occurred because of the debilitated condition of complainant No.1. It was further stated that even on 16-12-2010 she had exceeded her expected date of delivery by two days. It was further stated that the option of performing autopsy had been given to Sh.Des Raj, on the dead foetus but he refused and, as such, the complainants could not level the allegation of death having occurred due to wrong blood transfusion. It was denied that there was any failure of kidney of complainant No.1 because of wrong transfusion of blood group. It was further stated that to combat this eventuality, the procedure is that the person is put on dialysis to take out any residue and reverse any damage, which was done in the present case, after which the person could go home. It was denied that the death of foetus occurred due to wrong blood transfusion. It was further stated that when the mistake was discovered immediate remedial measures were taken. When the patient was found dehydrated, a call for second unit of blood was made when the blood bank informed that no blood unit was earlier issued to complainant No.1 but was issued for another Suman. Then the parameters were checked with regard to urine. On realizing the same, she was instantly sent to PGI alongwith one Postgraduate Student and one Intern. The patient was managed well without any side effects either permanent or temporary and the PGI was able to carry out all traces of blood and ensured that there was no residual damaged. It was further stated that in the Inquiry Report submitted by the SDM (South), the explanations/defences given by the various doctors, found no mention. Even no doctor signed the report with regard to its authenticity and, as such, the same had no value in the eyes of law. It was further stated that complainant No.1 was given free treatment in PGI including the injections. All other averments, made in the complaint, were denied. It was further stated that the answering Opposite Party, was not deficient, in rendering service and hence, the complaint was liable to be dismissed. 6. Opposite Party No.4-Dr.Manpreet, in her written version, stated that she had recently passed MBBS in June, 2010 and Opposite Party No.1-GMSH appointed her as House Surgeon on contract basis, for a period of three months from 30.09.2010 to 31.12.2010. It was further stated that the Gynecology Branch works under the Medical Officer Dr.Neeru, DNB, Dr.Ritika besides Nursing Sister Meena. Dr.Neeru was the overall Incharge of the evening shift. It was further stated that Dr.Ritika was the DNB at the relevant time, in the evening shift. It was further stated that complainant No.1 never hired the services of answering Opposite Party, for consideration, and hence she is not a consumer as defined under Section 2(i)(o) of the Consumer Protection Act, 1986. It was further stated that the answering Opposite Party was not in the labour room, but was in Post Natal Ward No.3 and other permanent staff was there which was not impleaded as parties. It was further stated that the answering Opposite Party was off duty at 8.00 p.m. on 16.12.2010. It was further stated that the answering Opposite Party was not aware of whether any wrong blood was transfused. It was further stated that the enquiry conducted by the SDM (South), UT, Chandigarh was not fair & proper as the principles of natural justice were not followed at all. All other averments, made in the complaint, were denied. It was further stated that, the answering Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice. 7. The Parties led evidence, in support of their case. 8. We have heard the Counsel for the parties and, have gone through the entire record of the case including the written arguments, affidavits, interrogatories and cross-interrogatories, replies thereto, Inquiry Report along with the statements etc. very carefully. 9. The first question, that arises, for consideration, is, as to whether, the complainants are consumers as per section 2(1)(d)(ii) of the Consumer Protection Act, 1986 qua the Opposite Parties. The answer to this question, is in the affirmative. The medical treatment card dated 10.11.2010 at page 539 issued, in the name of complainant No.1, clearly shows that under the column “category”, the word “paid” was mentioned. The fact that complainant No.1 had paid consideration for blood bag, finds corroboration, from the affidavit filed by Dr.Chander Mohan, Director Health and Family Welfare, UT, Chandigarh (Opposite Party No.1), wherein, in his reply to question no.4 of the interrogatories, he stated that the complainant-Suman Deshraj had been charged process fee for blood as per the National Blood Transfusion Council/Government of India guidelines. Hence, the contention of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected and it is held that the complainants are consumers as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as they hired the services of the Opposite Parties for consideration. Our view is further fortified by the judgment of the Hon’ble Supreme Court in Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), decided by a three Judge Bench of the Hon’ble Supreme Court, in which it was held that when the service is rendered by a Government Hospital/Health Centre/Dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act. Therefore, in view of the principle of law laid down, in the aforesaid case, the complainants are consumers under the provisions of Section 2(1)(d) (ii) of the Act. 10. The second question, that arises, for consideration, is, as to whether, the death of the foetus and dys-functioning of the kidney of complainant No.1, occurred due to the wrong transfusion of blood group because of the negligence of the employees i.e. Opposite Parties No.2 to 4 of OP No.1-Hospital. The fact that Opposite Parties No.2 to 4 were found negligent in their duties was fairly admitted by Opposite Party no.1, in para numbers 6 and 7 of the written statement, which were further corroborated by an affidavit of Dr.Chander Mohan, Director Health and Family Welfare, GMSH, Sector 16, Chandigarh. He also stated that Opposite Parties No.2 to 4 were found negligent in their duties and, as a consequence thereof, disciplinary action was initiated against them, in accordance with law. Sh.Kavle V.Parshuram, IAS, SDM (South), Chandigarh was appointed as an Inquiry Officer who submitted his Inquiry Report with the assistance of Dr.A.Muthamma, IAS (P), Assistant Commissioner (UT, Chandigarh, Dr.Vipin Kaushal, Medical Superintendent, GMCH, Sector 32,Chandigarh and Dr.Poonam Goel the then HOD, Department of Obstetrics and Gynecology, GMCH, Sector 32, Chandigarh. 11. As per the Inquiry Report dated 03.01.2011, Opposite Party No.2-Ms.Kirti Sood, Technician was held negligent in performing her duties, because she issued the blood bag without cross-checking for requisite important details of the patient and, more particularly, her blood group and later on concealing the facts and tampering with the sample. The fact that on 16.12.2010 Opposite Party No.2-Ms.Kirti Sood, Lab Technician was on duty from 2.00 p.m. to 8.00 p.m was fairly admitted by her, in her statement, at page no.595. She, however, categorically denied that she received any blood requisition form of Suman wife of Deshraj. But from the perusal of the copy of the Blood Issue Register at Sr.No.5776 (at Page No.179), it is evident that Opposite Party No.2 issued B+ve blood bag to the husband of Smt.Suman wife of Sh.Desraj instead of A+ve blood bag. This fact is also corroborated from the certified copy of the case sheet produced by Opposite Party No.1, on the direction of this Commission, wherein, the compatibility sticker affixed on the same showed that blood B+ve Group with Cr.No.6189422 pertained to one Smt.Suman wife of Sh.Kedar Nath but Opposite Party No.2, wrongly issued the same to Smt.Suman wife of Sh.Desraj. This fact stands further substantiated from the statement of Ms.Shivani, Lab Technician, which is at page no.614, wherein, she stated that on 16.12.2010, she was on duty from 8.00 p.m. to 8.00 a.m. of the next morning of 17.12.2010 and on the asking of Dr.Ritu, she called Mrs.Saroj, Incharge Blood Bank and told her that Ms.Kirti, Lab Technician, while on duty in the evening, issued a blood bag of Smt.Suman wife of Sh.Kedarnath to Smt.Suman wife of Sh.Deshraj. After seeing the Issue Register, Mrs.Saroj even stated, in her statement, at page 620, that no blood bag was issued in the name of Smt.Suman w/o Sh.Deshraj, rather one unit of blood was issued in the evening by Mrs.Kirti Sood to Suman w/o Kedarnath. She further stated that Ms.Shivani told her that Dr.Ritu, DNB, Gynae brought a fresh blood sample of Smt.Suman wife of Sh.Desh Raj and, on testing the same, it was found to be A+ve. She further stated that on telephone Dr.Ritu, DNB, Gynae who was standing alongwith Ms.Shivani told her that B+ve blood had been transfused to A+ve patient. In view of the above, there is, no doubt, in our mind, that Mrs.Kirti Sood, Lab Technician, without properly checking and rechecking the details of the patients, unique central registration no. and the blood group of the patients, wrongly issued a B+ve blood unit of Smt.Suman wife of Sh.Kedarnath to A+ve patient i.e. Smt.Suman wife of Sh.Deshraj. So Opposite Party No.2 is held to be negligent in the performance of her duties sincerely and diligently. 12. Coming to the role of Opposite Party No.3, it may be stated here that from the Certificate of Compulsory Rotatory Internship Training dated 01.04.2011 produced by Opposite Party No.1, on the direction of this Commission, it is proved that Opposite Party No.3-Dr.Navdeep, Intern joined the services of OP No.1-Hospital on 01.08.2010. She was on duty in Obst. & Gynae Department w.e.f. 01.12.2010. In fact, she was working as an intern for the last four months in different departments of OP No.1-Hospital. Hence, the stand taken by Opposite Party No.3, that it was her first day in Gynae Department is falsified. Further we do not find any force, in the contention of the Counsel for Opposite Party No.3, that there was no negligence on the part of OP No.3 because she performed her duties on the directions of Opposite Party No.4. There is no doubt that blood transfusion was carried out by Opposite Party No.3 on the directions of Dr.Manpreet Kaur-Opposite Party No.4 but before transfusion of the blood, being a doctor, and as per the medical ethics/norms, it was her bounden duty to check and re-check the requisite details of the patient, with the details given on the blood bag, and if she had any doubt then she should have consulted her Senior doctor but, she by violating all the fundamental blood protocols, transfused the blood on the presumption, that the blood bag lying by the side of complainant No.1 was meant for her only and, as such, undoubtedly the medical negligence of Opposite Party No.3 is proved. 13. Comingn to the medical negligence of Opposite Party No.4-Dr.Manpreet, House Surgeon, the same is proved from her statement at 593, wherein, she stated that on 16.12.2010 (from 2 p.m. to 8 p.m.) she alongwith Dr.Neeru, MO, Dr.Retika, DNB and Dr.Navdeep, Intern was on duty. She further stated, in her statement, that Smt.Suman wife of Sh.Desraj was to be transfused one unit of blood and for this reason, she checked all the required formalities i.e. universal colour label code, card number, patient name, the blood group of the patient and the donor no. on the blood bag, which was issued by the blood bank. In the meantime, she got a call from the Post Natal Ward-3 for dressings of post caesarean patient and before leaving the labour room, she instructed Opposite Party No.3, that, in case, she came late then she could transfuse the blood to complainant No.1. Accordingly, Opposite Party No.3 on the presumption that the said blood bag had already been checked by her Senior started transfusing the B+ve blood group instead of A+ve blood group to Suman wife of Sh.Desh Raj, which resulted into death of foetus as well as failure of her kidney. From the sequences of events, it is established that due to the palpable negligence of Opposite Parties No.2 to 4, complainant No.1 suffered intra uterine death (IUD) and failure of her kidney. Since there was no arrangement for dialysis in OP No.1-Hospital, she was shifted to PGI for further treatment. 14. Even otherwise, in the Inquiry Report, which is an important of piece of evidence, it was held that due to the carelessness and negligence of Opposite Parties No.2 to 4, Ms.Suman suffered intra uterine death and failure of her kidney because of the wrong transfusion of blood. Thus, from the evidence, on record, and the Inquiry Report, we do not feel any hesitation in concluding that there was negligence per se on the part of the Opposite Parties. It is a clear case of res ipsa loquitur (the things speak themselves). In the case-Postgraduate institute of Medical Education and Research, Chandigarh Vs. Jaspal Singh and others (2009) 7 SCC 333, the Hon’ble Apex Court held that mismatch in transfusion of blood resulting in the death of the patient after 40 days, was a case of medical negligence. Thus, mismatch of blood transfusion, is one of the illustrations, given in various textbooks, on medical negligence, to indicate the application of res ipsa loquitur. 15. We do not find any force, in the contention of the Counsel for Opposite Parties No.1 and 3 that since it was the sixth conception (i.e. case of grand multipara) of Ms.Suman who had a history of two previous still births and her hameoglobin was 7.5 gm % (anaemic) on 16.12.2010, so it could not be said with certainty that the intra uterine death (IUD) occurred as a consequence of wrong transfusion of blood. In our considered view, in order to avoid the complications, in her pregnancy, and being anaemic, complainant No.1 approached Opposite Party No.1-Hospital with the hope to get better treatment but due to mismatched transfusion of blood by the Opposite Parties, she suffered intra uterine death (IUD) and failure of her kidney. 16. The contention of the counsel for Opposite Party No.1-Hospital that it is not vicariously liable to pay compensation for the negligence of Opposite Parties No.2 to 4 is baseless because once it had been admitted by it that Opposite Parties No.2 to 4 were negligent in performing their duties and it being their employer, who were working under its control and supervision, is responsible for the acts of omission and commission of its employees i.e. doctors and para-medical staff, whether they were employed on permanent basis or as consultants or as visiting doctors. Thus, Opposite Party No.1 is vicariously liable to pay the compensation to the complainants. 17. It is evident from the discharge card for the period from 17.12.2010 to 21.01.2011 at page-367 issued by the PGI, Chandigarh, that complainant No.1 recovered/improved from the acute renal failure and now she is only on medication and follow up treatment. At the time of arguments, the Counsel of Opposite Party No.1 submitted that the general health of complainant No.1 is alright and she is no more on dialysis and her kidneys are normal. From the discharge card, it is apparent that complainant No.1 was discharged and she recovered from acute renal failure. Though according to Opposite Party no.1, complainant No.1 is perfectly alright, yet it cannot be ruled out, that due to the negligence of the Opposite Parties, complainants no.1 and 2 suffered both mentally and physically and, as such, they are certainly entitled to compensation for mental agony and harassment expenditure, if any, incurred on medicines, tests etc. 18. Coming to the quantum of compensation, It is evident that a sum of Rs.50000/- vide cheque No.391290 dated 10.02.2011, as monetary compensation, was given by the Office of the Deputy Commissioner, UT, Chandigarh to the complainants. Expenditure of Rs.8434/- incurred on the treatment of complainant No.1, was also reimbursed by the OP No.1-Hospital under the budget of Rogi Kalyan Smiti. In our considered view, this amount of compensation of Rs.50000/- is too meagre, to meet the ends of justice. Keeping in view the financial status of the complainants, who belong to a poor family, death of the foetus, loss of income of the complainant No.2(being a labourer) during the period of treatment of her wife i.e. Mrs.Suman(being housewife), loss of income of Suman-complainant No.1 during the period, she remained admitted in the hospital, the mental agony and physical harassment suffered by them due to the negligence of the Opposite Parties, we deem it appropriate to award a consolidated compensation of Rs.4 lacs to them (complainants) on all these counts. Besides this, we are of the considered opinion that it is the bounden duty of the OP No.1-Hospital to bear all the expenses of the future treatment of complainant No.1, if she required the same besides the amount already given to the complainants. 19. For the reasons recorded above, the complaint is allowed with costs. The Opposite Parties are jointly and severally directed to pay a sum of Rs.4,00,000/- as compensation to the complainants. The Opposite parties shall also pay to the complainants Rs.50,000/- as cost of litigation. Opposite Party No.1 is also directed to bear all the expenses, which may be incurred on the future treatment of complainant No.1, in any government hospital/health centre/dispensary etc. 20. This order be complied with, by the Opposite Parties within one month, from the date of receipt of a certified copy of the same, failing which, they shall be liable to pay the amount of Rs.4 lacs alongwith penal interest @ 12% p.a., to the complainants, from the date of filing of complaint i.e. 21.01.2011, till its realization, besides costs of litigation. 21. Certified Copies of this order be sent to the parties, free of charge. 22. The file be consigned to Record Room, after completion. Pronounced. Sd/- 01.03.2012 [JUSTICE SHAM SUNDER] PRESIDENT cmg sd/- [NEENA SANDHU] MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER

Supreme Court judgment - annulled the forced retirement of a government official after he acquired a disability during service

2013-09-27T09:21:00.002+05:30

From http://www.deccanherald.com/content/358699/humane-way.html A recent Supreme Court judgment which annulled the forced retirement of a government official after he acquired a disability during service is important as a service rule and as an affirmation of the rights of the disabled. The court directed the union government to pay all service benefits to an IAS officer of the 1977 batch, Anil Mahajan, who was compulsorily retired in 2007 owing to mental illness. He could not be reinstated in service because he has crossed the age of superannuation. Mahajan was suspended from service in 1993 and an enquiry found him unfit for service after 11 years. He challenged the inquiry and the action against him in the Central Administrative Tribunal which rejected his case. However the Supreme Court upheld his case on appeal and prescribed some norms which will have a bearing on the treatment of disabled persons in service. The court extended the scope of the 1995 law on disabilities by interpreting that it covered impairments to body and mind acquired during service also. It ruled that persons who become disabled during their service should be moved to a position suitable to their condition. If such a position was not available, they should be kept in a supernumerary status till a suitable post is found. This is in line with the spirit of the 1995 law which has empowered differently abled persons in various ways. If a disabled person is given suitable employment, there is no reason why a person should be deprived of his job if he becomes disabled as a result of an accident or for other reasons. It is common sense to protect his or her livelihood, and inhuman to deprive him or her of his job. Though the judgment has made the issue clear and given relief to the victim of an unfair decision, it is felt that the provisions of the law need to be clearly spelt out in this respect. The 1995 law on disabilities was a path-breaking one and did much to define and bring into the focus the rights of the disabled. But fresh legislation may be needed to cover new forms of disabilities or situations like those brought to light by Mahajan’s petition. The differently abled persons form 10 per cent of the population. They are victims of prejudice and discrimination at different levels. The government and society should ensure that they get the right and fair treatment in every way.

Supreme Court against Fake and Frivolous Allegations

2013-09-17T21:54:00.002+05:30

A.S.V. Narayanan Rao Vs. Ratnamala & another

[Criminal Appeal No. 1433 of 2013 arising out of Special Leave Petition (Criminal) No.649 of 2011]

Chelameswar, J.

1. Leave granted.

2. This appeal arises out of an order dated 28th October 2010 in Criminal Petition No.6506 of 2007 of the High Court of Andhra Pradesh.

3. The aforementioned criminal petition was filed praying that the proceedings initiated against the appellant herein in C.C. No.600 of 2006on the file of the XIV Additional Chief Metropolitan Magistrate, Hyderabad for the offence punishable under section 304A IPC be quashed. The said petition along with another similar petition by one of the co-accused was heard and disposed of by a common order (order in appeal).

4. While the petition filed by the appellant herein was dismissed by the High Court, the other petition of the co-accused was allowed.

5. The appellant is a cardiologist. The husband of the first respondent(one Divakar) approached the appellant herein, complaining of a pain in the chest on 22.04.2002. Divakar was admitted in the hospital where the appellant was working and kept in the Intensive Care Unit (ICU).Thereafter, the appellant informed the first respondent that Divakar had suffered a mild heart attack. On 23.04.2002, an angiogram was conducted which showed three blocks in the vessels carrying blood to the heart. On25.04.2002 at 9.30 a.m., the appellant unsuccessfully attempted to performan angioplasty on Divakar. Around 1.30 in the afternoon, the appellant informed the first respondent that the angioplasty failed as the blocks were calcified. Same day at around 3.30 p.m., by-pass surgery was conducted on Divakar in the same hospital. Subsequently, various complications developed and eventually Divakar died on 09.05.2002.

6. On 14.05.2002, the first respondent lodged a complaint against the appellant and others under section 304A IPC which came to be registered as FIR No.416 of 2002.

7. The police on investigation submitted a final report on 02.02.2005treating the case to be one of lack of evidence. The respondent filed objections before the Metropolitan Magistrate to the final report and prayed the Magistrate to take cognizance of the offence. The learned Magistrate by his order dated 11.12.2006 came to the prima facie conclusion that there exists material to try the accused for the offence punishable under section 304A IPC. Challenging the said order the appellant approached the High Court by way of Criminal Petition No.6506 of 2007.

8. By judgment under appeal, the High Court opined that the material on record "clearly shows negligence on the part of A1"[1] and declined to quash the proceedings.

9. Mr. P.S. Narasimha, learned senior counsel appearing for the appellant submitted that the High Court clearly erred in dismissing the petition of the appellant herein. Learned senior counsel argued that the law laid down by this Court in Jacob Mathew Vs. State of Punjab & Anr.(2005) 6 SCC 1 has completely been ignored by both the learned Magistrate and the High Court in deciding to proceed with the case against the appellant herein. On the other hand, learned counsel for the first respondent submitted that the conduct of the appellant in undertaking the angioplasty without having a standby surgical unit is clearly in violation of the established practice of the medical profession and therefore a clear case of negligence warranting punishment of the appellant.

10. This Court in the case of Jacob Mathew (supra) considered exhaustively the various aspects of negligence on the part of a doctor and laid down inter alia; "48......(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens area must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly"."

11. This Court further opined that though doctors are not immune from legal proceedings in the event of their negligence in discharging their professional duties, in the interest of the society, it is necessary to protect doctors from frivolous and unjust prosecution. It was further pointed out the need to frame either statutory rules or administrative instructions incorporating guidelines for prosecuting doctors on charges of criminal negligence. This Court therefore, ordered that until such guidelines are laid down, the following procedure is required to be followed:-

"52....we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. 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 the Bolam 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 investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."

12. From the final report submitted by the police in the instant case, it can be gathered that the records pertaining to the treatment given to the deceased were forwarded to the Andhra Pradesh Medical Council and also the Medical Council of India which opined that the "doctors seem to have made an attempt to do their best as per records".

13. However, the High Court thought it fit to continue the prosecution of the appellant for two reasons (1) that the appellant chose to conduct the angioplasty without having a surgical standby unit and such failure resulted in delay of 5 hours in conducting by-pass after the angioplasty failed; and (2) that the appellant did not consult a Cardio Anesthesian before conducting an angioplasty. According to the High Court, both the above-mentioned 'lapses' on the part of the appellant "clearly show the negligence" of the appellant.

14. The basis for such conclusion though not apparent from the judgment, we are told by the learned counsel for the first respondent, is to be found in the evidence of Dr. Surajit Dan given before the A.P. State Consumer Redressal Commission in C.D. No. 38 of 2004. It may also be mentioned here that apart from initiating criminal proceedings against the appellant and others, the first respondent also raised a consumer dispute against the appellant and others. It is in the said proceedings, the above-mentioned Dr. Dan's evidence was recorded wherein Dr. Dan in his cross-examination stated as follows:-

"....Whenever Cardiologist performs an angioplasty, he requests for the surgical team to be ready as standby. I was not put on standby in the instant case...."He further stated; "..The failure of angioplasty put the heart in a compromised position of poor coronary perfusion that increases the risk of the emergency surgery after that. In a planned coronary surgery, the risk is less than in an emergency surgery..."However, the same doctor also stated; "...The time gap between the angioplasty failure and the surgery is not THE FACTOR for the death of the patient. The time gap may or may not be a factor for the enhancement of the risk."

15. Unfortunately, the last of the above extracted statements of Dr. Surajit Dan is not taken into account by the High Court which statement according to us is most crucial in the context of criminal prosecution of the appellant.

16. The High Court unfortunately overlooked this factor. We, therefore, are of the opinion that the prosecution of the appellant is uncalled for as pointed out by this Court in Jacob Mathew case (supra) that the negligence, if any, on the part of the appellant cannot be said to be "gross". We, therefore, set aside the judgment under appeal and also the proceedings of the trial court dated 11.12.2006.

17. The appeal is allowed, however, there shall be no order as to costs.

...................J. (H.L. Gokhale)

...................J. (J. Chelameswar)

New Delhi;

September 13, 2013

[1] The sworn statement of Dr. P.V.N. Rao also discloses that A1 without consulting the Anesthetist and without a surgical stand conducted Angioplasty, which should be done by the Surgeon, as the surgeon was out of station which fact he came to know through the Anesthetist. The operation was delayed by 5 hours due to want of surgeon who has to come from New Delhi, which clearly shows the negligence on the part of A1. Further as the patient was a chronic smoker he should be prepared before undertaking Angioplasty and the Cardiac Anesthesian should be consulted for fitness of the patient before conducting the same. The entire record adduced does not indicate as to whether A1 assessed the condition of the patient on consultation of the cardio Anasthesian and obtained the fitness certificate for going Angioplasty on the patient.

Three arrested for assaulting doctors at Stanley Medical College

2013-08-18T23:56:00.000+05:30

From http://www.thehindu.com/news/cities/chennai/three-arrested-for-assaulting-doctors-at-stanley-medical-college/article5035550.ece

Three persons have been booked for assaulting doctors at the Government Stanley Medical College Hospital on Sunday. The assault had occurred at about 12.30 a.m. near the operation theatres. Police arrested Prem Kumar, Raja and Ranjith Kumar — all in their 20s — and are on the lookout for the fourth person.

“A child was brought to the hospital with an injury on the toe at midnight. A house surgeon had gone to the operation theatre to prep the surgery table. In that time, four persons, who had accompanied another patient, created commotion saying that treatment for the child was being delayed and attacked him. When post graduate medical students on duty came to his rescue, they were physically assaulted as well,” S. Geethalakshmi, hospital dean said.

PGs Avinash and Arokiya Michael Raja sustained injuries in the assault. Following this, around 200 house surgeons, PGs and doctors on duty gathered at the spot and nabbed the assaulters. Later, the doctors staged a protest near the hospital entrance for nearly an hour, from 9.30 a.m on Sunday.

A senior police officer said the timely intervention prevented the issue from escalating into a major State-wide protest. “The trio did not have any business to interfere with the treatment of the child as they were not related to the child’s family; they did so in a drunken state. In 15 minutes, we mobilised 50 constables to the hospital to provide security. We have remanded the trio. One more person named Satish is absconding,” he said.

Dr. Balakrishnan, State secretary of Tamil Nadu Government Doctors Association, said armed police personnel should be deployed round-the-clock at sensitive areas in the hospital, particularly at the casualty, zero-delay ward and intermediate care unit. The arrested were booked under Tamil Nadu Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage or loss to property) Act, 2008.

AIIMS Faculty Appointment

2013-07-19T09:34:00.001+05:30

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4500 of 2002

1

2 FACULTY ASSOCIATION OF AIIMS … APPELLANT

VS.

2 UNION OF INDIA & ORS. … RESPONDENTS

WITH

CIVIL APPEAL NO. 5119 OF 2002

J U D G M E N T

ALTAMAS KABIR, CJI.

1. When Special Leave Petition (Civil) No. 2106 of 2002, filed by the
Faculty Association of AIIMS, was taken up for consideration, notice
thereupon was issued by a Bench of Two-Judges and it was stipulated that
any appointment to be made, after the order was passed in accordance
with the reservation policy, would only be tentative in nature until
further orders. When the Appeal was taken up for hearing on 20th
February, 2003, along with Civil Appeal No. 5119 of 2002, considering
the important nature of the issues involved for determination in the
said cases, as also the recurring nature of the problem, it was thought
appropriate that the matters be heard by a larger Bench. Thereafter, on
12th February, 2004, a Bench of Three-Judges headed by the Chief Justice
was of the view that the matters involved substantial questions of law
as to the interpretation of the Constitution and were required to be
heard by a Bench of Five-Judges. It is pursuant to such direction that
the matter appeared before the Bench of Five-Judges on several occasions
and ultimately they were listed before a Bench of Five-Judges on 2nd
July, 2013.

2. Although the matter is now before a Bench of five Judges, the terms
of reference are not very clear. From what we have been able to gather
from the pleadings and the judgment of the Division Bench of the High
Court, the question to be considered is whether reservation was
inapplicable to specialty and super-specialty faculty posts in the All
India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.
Faced with the decisions of this Court in the case of Indra Sawhney Vs.
Union of India & Ors. [(1992) Supp. (3) SCC 215]; Jagdish Saran & Ors.
Vs. Union of India & Ors. [(1980) 2 SCR 831]; and Dr. Pradeep Jain etc.
Vs. Union of India & Ors. etc. [(1984) 3 SCR 942], wherein reservation
in admission to specialty and super-specialty courses was disallowed,
the Division Bench of the High Court confined itself to the limited
issue, namely, whether reservation policy was inapplicable for making
appointments to the entry level faculty post of Assistant Professor and
to super specialty posts and also whether the resolutions adopted by
AIIMS on 11.1.1983 and 27.5.1994 were liable to be struck down.

3. Appearing for the Petitioner, Mr. P.P. Rao, learned Senior
Advocate, firstly referred to the statement of objects and reasons of
the All India Institute of Medical Sciences Act, 1956, which provides as
follows :

“For improving professional competence among medical practitioners, it
is necessary to place a high standard of medical education, both post-
graduate and under-graduate, before all medical colleges and other
allied institutions in the country. Similarly, for the promotion of
medical research it is necessary that the country should attain self-
sufficiency in post-graduate medical education. These objectives are
hardly capable of realisation unless facilities of a very high order
for both undergraduate and post-graduate medical education and
research are provided by a central authority in one place. The Bill
seeks to achieve these ends by the establishment in New Delhi of an
institution under the name of the All-India Institute of Medical
Sciences. The Institute will develop patterns of teaching in under-
graduate and post-graduate medical education in all its branches so as
to demonstrate a high standard of medical education to all medical
colleges and other allied institutions, will provide facilities of a
high order for training of personnel in all important branches of
health activities and also for medical research in its various
aspects. The Institute will have the power to grant medical degrees,
diplomas and other academic distinctions which would be recognised
medical degrees for the purpose of the Indian Medical Council Act,
1933.”

4. Mr. Rao also referred to Section 5 of the Act which declared the
institute to be an institution of national importance. As pointed out
by Mr. Rao, Section 13 of the Act is in line with the objects for which
the institute was created and Section 14 deals with the functions of the
institute relating to the academic aspects of the institutes's functions
as a teaching institute.

5. Mr. Rao submitted that the question had earlier been gone into and
considered in Indra Sawhney's case (supra), wherein while considering
the question of reservation the Bench also took into consideration the
provisions of Article 335 of the Constitution regarding the claims of
Scheduled Castes and Scheduled Tribes to services and posts. Referring
to the concurring Judgment of Jeevan Reddy, J., learned counsel referred
to Paragraphs 838 and 839 in particular and the observations made
therein. Since Paragraph 838 places in focus the view of the Nine-Judge
Bench, the same is extracted hereinbelow:

“838. While on Article 335, we are of the opinion that there are
certain services and positions where either on account of the nature
of duties attached to them or the level (in the hierarchy) at which
they obtain, merit as explained hereinabove, alone counts. In such
situations, it may not be advisable to provide for reservations. For
example, technical posts in research and development
organisations/departments/ institutions, in specialities and super-
specialities in medicine, engineering and other such courses in
physical sciences and mathematics, in defence services and in the
establishments connected therewith. Similarly, in the case of posts
at the higher echelons e.g., Professors (in Education), Pilots in
Indian Airlines and Air India, Scientists and Technicians in nuclear
and space application, provision for reservation would not be
advisable.”

6. In fact, both in Paragraphs 838 and 839, while specifying areas,
where it may not be advisable to put reservation, the learned Judge has
included posts in research and development organisations/ departments
/institutions, in specialties and super-specialties in medicine. The
same observation is repeated in Paragraph 839, wherein, categorically it
was held that the Bench was of the opinion that in certain services and
in respect of certain posts, application of the rule of reservation may
not be advisable and once again included as the fourth item – posts in
super-specialties in medicine, engineering and other scientific and
technical subjects. Mr. Rao submitted that as far as medicine is
concerned “super-specialty” means “post doctoral courses”.

7. Mr. Rao submitted that in the instant case, reservation was being
provided for up to the doctoral stage, but at the stage of recruitment
for a post doctoral courses and research at the initial stage of
candidates were required to sit for a written examination and those who
are successful, were, thereafter, recruited in the different disciplines
of teaching. Mr. Rao submitted that the problem begins at that stage
when posts are thereafter, reserved in respect of different courses.
Mr. Rao submitted that once a candidate qualified for recruitment in the
different posts of faculty beginning from the post of Assistant
Professor onward, there was no further logic in thereafter reserving
posts for candidates from the Scheduled Castes and Scheduled Tribes and
OBC communities. Mr. Rao submitted that at that level of super-
specialty, the question of reservation ought not to arise as was
observed by the Nine-Judge Bench in Indra Sawhney's case (supra).

8. Mr. Rao submitted that while Article 16(4) empowers the State in
making provisions for reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State, was
not adequately represented in the services under the State, the same
would have to be read and understood in the manner indicated in Indra
Sawhney's case (supra). The learned Senior counsel submitted that
although definite directions have not been given in Paragraphs 838 and
839 of the judgment in Indra Sawhney's case (supra), the observations
made therein were guidelines for the Government and institutions, such
as AIIMS, to follow, in order to provide the best candidates available
with the opportunity of going in for super-specialties which entail
higher degree of skill and where no compromise in quality and expertise
could be entertained.

9. In support of his aforesaid submissions, Mr. Rao also referred to
the decision of a Three-Judge Bench in Dr. Jagadish Saran & Ors. Vs.
Union of India [(1980) 2 SCC 768], wherein in Paragraphs 21, 22 and 23,
Krishna Iyer, J., writing the judgment, spoke about reservation and what
he referred as wholesale banishment of proven ability to open up,
hopefully, some dalit talent, total sacrifice of excellence at the altar
of equalisation – when the Constitution mandates for every one equality
before and equal protection of the law – may be fatal folly, self-
defeating educational technology and anti-national if made a routine
rule of State Policy. His Lordship further observed that a fair
preference, a reasonable reservation, a just adjustment of the prior
needs and real potential of the weak with the partial recognition of the
presence of competitive merit – such is the dynamics of social justice
with animates the three egalitarian articles of the Constitution. The
learned Judge goes on to observe in Paragraph 23 that flowing from the
same stream of equalism is another limitation. The basic medical needs
of a region or the preferential push justified for a handicapped group
cannot prevail in the same measure at the highest scales of specialty
where the best skill or talent, must be handpicked by selecting
according to capability. The learned Judge went on to restrict the
Indian Medical Council's recommendations which indicated that students
of post-graduate courses therein should be selected strictly on merit,
judged on the basis of academic record in the undergraduate course.

10. The next decision referred to by Mr. Rao is a short judgment in the
case of Dr. Fazal Ghafoor Vs. Union of India & Ors. [(1988) Supp. SCC
794], which was a decision by two Judges, wherein, reliance was placed
on the decision of this Court in the case of Dr. Pradeep Jain & Ors. Vs.
Union of India & Ors. [(1984) 3 SCC 654], wherein, a Three-Judge Bench
of this Court, while considering the question of reservation in the
light of the aspirations of the citizens of India, as contained in the
Preamble to the Constitution, observed that while reservation was
acceptable with regard to the undergraduate course, different
considerations will have to prevail when it came to the question of
reservation based on residents’ requirement within the State or on
institutional preference for admission to the post-graduate courses,
such as MD, MS and the like. Following the decision in Dr. Jagadish
Saran's case (supra), Their Lordship observed that “there we cannot
allow excellence to be compromised by any other consideration because
that would be detrimental to the interest of the nation. Their
Lordships also observed that if equality of opportunity for every other
person in the country is the constitutional guarantee, merit must be the
test when choosing the best.

11. Mr. Rao lastly referred to the Constitution Bench decision of this
Court in Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7 SCC 120],
which was a writ petition heard along with several other writ petitions
on various aspects of reservation. Mr. Rao pointed out that the
Constitution Bench also referred to the decision in Dr. Pradeep Jain’s
case (supra) and also Dr. Jagadish Saran’s case (supra), referred to
hereinbefore, in expressing its concurrence with the views expressed
therein. In Paragraph 25 of the judgment, Sujata V. Manohar, J.,
speaking for the Constitution Bench, observed that the specialty and
super-specialty courses in medicine also entailed on-hand experience of
treating or operating on patients in the attached teaching hospitals.
Those undergoing these programmes are expected to occupy posts in the
teaching hospitals or discharge duties attached to such posts. The
elements of Article 335, therefore, colour the selection of candidates
for these course and the rules framed for this purpose. Consequently,
in Paragraph 26, it was further observed that in the premises the
special provisions for SC/ST candidates – whether reservations or lower
qualifying marks – at the specialty level have to be minimal. There
cannot, however, be any such special provisions at the level of super-
specialties. In keeping with its findings the Constitution Bench
ultimately held that since no relaxation is permissible at the highest
levels in the medical institutions, the Petitioners therein were right
when they contended that the reservations made for the Scheduled Castes
and Scheduled Tribes candidates for admission to DM and MCH courses,
which are super-specialty courses, in not consistent with the
constitutional mandate under Articles 15(4) and 16(4), and that
Regulation 27 of the Post Graduate Institute of Medical Education and
Research, Chandigarh Regulations, 1967, would not apply at the levels of
admissions to DM and MCH courses.

12. Mr. Rao submitted that the Health Survey and Development Committee,
popularly known as the Bhore Committee, in its report published in 1946
recommended the establishment of a national medical centre at Delhi,
which would concentrate on training, well-qualified teachers and
research workers in order that a steady stream of those could be
maintained to meet the needs of the rapidly expanding health activities
throughout the country. It seems that pursuant to the said report and
after attainment of Independence, the Union Ministry of Health proceeded
to implement the aforesaid idea resulting in the enactment of the All
India Institute of Medical Sciences Act, 1956, with the All India
Institute of Medical Sciences as an autonomous institution of national
importance and defined its objectives and functions. Various other
decisions, including the decisions in Saurabh Chaudri and Others Vs.
Union of India and Others [(2003) 11 SCC 146] and T.M.A. Pai Foundation
Vs. State of Karnataka [(2002) 8 SCC 481] were referred to by Mr. Rao to
urge that the observations made in Indra Sawhney's case as well as in
Preeti Srivastava’s case were binding, though in the nature of
observations made in the judgments. Mr. Rao referred to the decision of
this Court in Commissioner of Income Tax, Hyderabad-Deccan Vs. Vazir
Sultan and Sons [1959 Supp (2) SCR 375], wherein a Bench of Three-Judges
examined the doctrine of “obiter dicta” and arrived at a finding that
even obiter at times has the force of law declared by the Supreme Court
under Article 141 of the Constitution. Mr. Rao ended on the note that
the introduction of the concept of reservation in specialty and super-
specialty subjects or for the appointment of faculty in AIIMS, would
defeat the very purpose for which the institute was established. Mr.
Rao also submitted that if excellence was to be achieved at the level of
super-specialty disciplines, no compromise could be made in either
imparting such education or recruiting persons who would impart such
education at such level.

13. Dr. Rajiv Dhawan, learned Senior Advocate, who appeared in Civil
Appeal No. 5119 of 2002, submitted that the AIIMS Act did not empower
the Governing Body to impose reservation at any stage, much less at the
stage of super-specialty. Referring to the affidavit filed by the
Director of AIIMS, Dr. Dhawan submitted that the decision of the High
Court was contrary to the decision of this Court in Indra Sawhney's case
and also in M. Nagaraj and Others Vs. Union of India and Others [(2006)
8 SCC 212] where it was held that there should be no reservation at the
super-specialty stage, and, in any event, the same would have to be
based on quantifiable data. Mr. Rao submitted that proportional
representation and not adequacy, as understood in Indra Sawhney’s case
or even in M. Nagaraj’s case, has been resorted to in the instant case
in the teeth of the said two cases. While making reference to the
concept of creamy layer, Dr. Dhawan urged that “equality” does not mean
that reservation had to be applied in each and every case to maintain
such equality, for example, the creamy layer concept as was considered
by this Court in E.V. Chinnaiah Vs. State of A.P. and Others [(2005) 1
SCC 394].

14. Appearing for the Institute, Mr. Mehmood Pracha, learned Advocate
contended that people from Backward classes and the Scheduled Castes and
the Scheduled Tribes were often discriminated against and even in spite
of having excellent qualities, they were not provided with sufficient
opportunities to come up to the standards, as contemplated by the
various medical colleges and, in particular, the All India Institute of
Medical Sciences, which is an institution of national importance. Mr.
Pracha urged that although reservation at all different levels of the
Institute had been introduced, for quite some time, there is no
available data to indicate that there has been any deterioration in the
quality of medical services being provided in AIIMS. On the other hand,
AIIMS was one of the most sought after medical institute, not only for
promotion and research work, but also for the purpose of medical
education. Taking a leaf out of Hindu mythology, Mr. Pracha drew an
analogy from the story of Eklavya and Arjun in the Mahabharta. While
Arjun belonged to the princely class, Eklavya was a tribal boy, who
without actual training or guidance from any teacher, by his own
efforts, excelled in the art of archery. The famous Dronacharya was
Arjun’s teacher in archery and Eklavya had acquired the skills that he
had by merely watching Dronacharya guiding Arjun. However, when it came
to an archery competition, Dronacharya, who was more or less certain
that, if allowed an opportunity, Eklavya would possibly beat Arjun,
requested Eklavya that if he really loved and respected him, he should
give his right thumb as gurudakshina to his master. Eklavya dutifully
obeyed the person he had chosen as his master and was thus prevented
from competing in the competition which Arjun won. Mr. Pracha submitted
that simply because Eklavya was a tribal boy he was denied the
opportunity of competing with Arjun, despite his brilliance and
excellence. Mr. Pracha submitted that there are many more Eklavyas in
today’s society, who, if not suppressed and given a chance, would
possibly even outshine those belonging to the higher echelons of
Society.

15. Mr. Pracha strongly supported the concept of reservation at all
stages, including at the super-specialty stage. He urged that at the
entry level for recruitment to the faculty posts, which were all treated
as super-specialty disciplines after the Post Graduate course, a member
of the Backward Classes had to sit for an examination with others
without any separate weightage given for reservation. It is only after
having passed the written examination along with other candidates, was a
member of the Backward Classes appointed in a teaching post on the basis
of reservation. Mr. Pracha submitted that this was done only with the
intention of giving such a candidate an opportunity of reaching the
level of his other fellow faculty members. Mr. Pracha submitted that a
little support was intended to help people from the Backward communities
to make their presence felt in academia, so as to encourage others
similarly situated. Mr. Pracha also relied on the decision of this
Court in Indra Sawhney’s case, in support of his contention that members
of the Scheduled Castes and Scheduled Tribes and Other Backward Classes
were not adequately represented and for the said purpose a certain
amount of reservation was necessary so that they could compete with
others and excel in academics. Strongly supporting the policy adopted
by the Institute, Mr. Pracha submitted that the Civil Appeal filed by
the Faculty of Association of AIIMS was liable to be dismissed.

16. Appearing for the Union of India, the learned Solicitor General
repeated the submissions made by Mr. Pracha and added that the State had
a constitutional duty to empower certain sections of society who needed
help to uplift themselves from their particular situations. The learned
Solicitor General submitted that Article 46 of the Constitution, though
a Directive Principle, was in the nature of a guideline for good
governance to the Government of the day. The said Article was intended
to help the depressed classes, who otherwise had little opportunity of
raising their standards. Faced with the question as to when initially
the Central Government had opposed the doctrine of reservation on the
ground of excellence in education, why was it necessary in 1972 to take
a different stand and come out in support of reservation, even in super-
specialty courses, the learned Solicitor General urged that the policy
was based not on the question of adequacy, but as a measure of
empowerment for the Backward Classes. While referring to the decision
in M. Nagaraj’s case, which has been referred to by the other learned
counsel, the learned Solicitor General contended that with the
introduction of Article 16(4A) in the Constitution, the decision arrived
at in M. Nagaraj’s case, would have to be read differently. He,
however, also urged that there was no constitutional prohibition to
impose reservation, if it was felt necessary to benefit the Backward
Classes, who had little or no support to help them improve their lot.
Referring to the decisions of this Court in Dr. Jagadish Saran's case
and Dr. Pradeep Jain’s case, which have been referred to hereinabove,
the learned Solicitor General urged that the direction given in Dr.
Pradeep Jain’s case that reservation should not exceed 70%, did not take
into consideration Article 16(4A) of the Constitution, while giving such
directions.

17. Although, the matter has been argued at some length, the main issue
raised regarding reservation at the super-specialty level has already
been considered in Indra Sawhney’s case (supra) by a Nine-Judge Bench of
this Court. Having regard to such decision, we are not inclined to take
any view other than the view expressed by the Nine-Judge Bench on the
issue. Apart from the decisions rendered by this Court in Dr. Jagadish
Saran's case (supra) and Dr. Pradeep Jain’s case (supra), the issue also
fell for considerate in Preeti Srivastava’s case (supra) which was also
decided by a Bench of Five Judges. While in Dr. Jagadish Saran's case
(supra) and in Dr. Pradeep Jain’s case (supra) it was categorically held
that there could be no compromise with merit at the super specialty
stage, the same sentiments were also expressed in Preeti Srivastava’s
case (supra) as well. In Preeti Srivastava’s case (supra), the
Constitution Bench had an occasion to consider Regulation 27 of the Post
Graduate Institute of Medical Education and Research, Chandigarh
Regulations, 1967, whereby 20% of seats in every course of study in the
Institute was to be reserved for candidates belonging to the Scheduled
Castes, Scheduled Tribes or other categories of persons, in accordance
with the general rules of the Central Government promulgated from time
to time. The Constitution Bench came to the conclusion that Regulation
27 could not have any application at the highest level of super
specialty as this would defeat the very object of imparting the best
possible training to selected meritorious candidates, who could
contribute to the advancement of knowledge in the field of medical
research and its applications. Their Lordships ultimately went on to
hold that there could not be any type of relaxation at the super
specialty level.

18. In paragraph 836 of the judgment in Indra Sawhney’s case (supra),
it was observed that while the relevance and significance of merit at
the stage of initial recruitment cannot be ignored, it cannot also be
ignored that the same idea of reservation implies selection of a less
meritorious person. It was also observed that at the same time such a
price would have to be paid if the constitutional promise of social
justice was to be redeemed. However, after making such suggestions, a
note of caution was introduced in the very next paragraph in the light
of Article 15 of the Constitution. A distinction was, however, made
with regard to the provisions of Article 16 and it was held that Article
335 would be relevant and it would not be permissible not to prescribe
any minimum standard at all. Of course, the said observation was made
in the context of admission to medical colleges and reference was also
made to the decision in State of M.P. Vs. Nivedita Jain [(1981) 4 SCC
296], where admission to medical courses was regulated by an entrance
test. It was held that in the matter of appointment of medical
officers, the Government or the Public Service Commission would not be
entitled to say that there would not be minimum qualifying marks for
Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum
for others. In the very next paragraph, the Nine-Judge Bench while
discussing the provisions of Article 335 also observed that there were
certain services and posts where either on account of the nature of
duties attached to them or the level in the hierarchy at which they
stood, merit alone counts. In such situations, it cannot be advised to
provide for reservations. In the paragraph following, the position was
made even more clear when Their Lordships observed that they were of the
opinion that in certain services in respect of certain posts,
application of rule of reservation may not be advisable in regard to
various technical posts including posts in super specialty in medicine,
engineering and other scientific and technical posts.

19. We cannot take a different view, even though it has been suggested
that such an observation was not binding, being obiter in nature. We
cannot ascribe to such a view since the very concept of reservation
implies mediocrity and we will have to take note of the caution
indicated in Indra Sawhney's case. While reiterating the views
expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of
the two Civil Appeals in the light of the said views, which were also
expressed in Dr. Jagadish Saran's case, Dr. Pradeep Jain's case, Dr.
Preeti Srivastava's case. We impress upon the Central and State
Governments to take appropriate steps in accordance with the views
expressed in Indra Sawhney's case and in this case, as also the other
decisions referred to above, keeping in mind the provisions of Article
335 of the Constitution.

20. There will be no order as to costs.

…………………………………………………CJI.

(ALTAMAS KABIR)

………………………………………………………J.
(SURINDER SINGH NIJJAR)

………………………………………………………J.

(RANJAN GOGOI)

………………………………………………………J.

(M.Y. EQBAL)

………………………………………………………J.

(VIKRAMAJIT SEN)

New Delhi
Dated: July 18, 2013.

NEET is invalid : Full Text of Supreme Court Judgement

2013-07-19T09:15:00.000+05:30

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

T.C.(C) NO.98 OF 2012

CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS ...Petitioners

VERSUS

UNION OF INDIA AND ORS. ...Respondents

WITH T.C.(C) NO.99/2012
T.C.(C) NO.101/2012
T.C.(C) NO.100/2012
T.C.(C) NO.102/2012
T.C.(C) NO.103/2012
W.P.(C) NO.480/2012
T.C.(C) NO.104/2012
T.C.(C) NO.105/2012
W.P.(C) NO.468/2012
W.P.(C) NO.467/2012
W.P.(C) NO.478/2012
T.C.(C) NO.107/2012
T.C.(C) NO.108/2012
W.P.(C) NO.481/2012
W.P.(C) NO.464/2012
T.C.(C) NO.110/2012
T.C.(C) NOS.132-134/2012
T.C.(C) NOS.117-118/2012
T.C.(C) NOS.115-116/2012
T.C.(C) NOS.125-127/2012
T.C.(C) NOS.113-114/2012
T.C.(C) NOS.128-130/2012
T.C.(C) NOS.121-122/2012
T.C.(C) NO.112/2012
T.C.(C) NO.131/2012
T.C.(C) NOS.123-124/2012
T.C.(C) NO.111/2012
T.C.(C) NO.120/2012
T.C.(C) NO.119/2012
T.C.(C) NOS.135-137/2012
T.C.(C) NOS.138-139/2012
W.P.(C) NO.495/2012
W.P.(C) NO.511/2012
W.P.(C) NO.512/2012
W.P.(C) NO.514/2012
W.P.(C) NO.516/2012
W.P.(C) NO.519/2012
W.P.(C) NO.535/2012
T.C.(C) NO.142/2012 @ T.P.(C) NO.364/2012
W.P.(C) NO.544/2012
W.P.(C) NO.546/2012
W.P.(C) NO.547/2012
T.C.(C) NO.144/2012 @ T.P.(C) NO.1524/2012 & 1447/2012
T.C.(C) NO.145/2012
T.C.(C) NO.1/2013 @ T.P.(C) NO.1527/2012
T.C.(C) NOS.14-15/2013 @ T.P.(C) NOS.1672-1673/2012
T.C.(C) NO.76/2013 @ T.P.(C) NO.1702/2012
T.C.(C) NO.12-13/2013
T.C.(C) NO.4/2013
T.C.(C) NO.11/2013
T.C.(C) NOS.21-22/2013 @ T.P.(C) NO.1714-1715/2012
T.C.(C) NO.5/2013 @ T.P.(C) NO.1718/2012
W.P.(C) NO.2/2013
W.P.(C) NO.1/2013
T.C.(C) NO.60/2013 @ T.P.(C) NO.12/2013
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W.P.(C) NO.228/2013

J U D G M E N T

ALTAMAS KABIR, CJI.

1. Four notifications, two dated 21.12.2010 and the other two dated
31.5.2012, issued by the Medical Council of India and the Dental Council of
India, are the subject matter of challenge in all these matters which have
been heard together by us. Notification No. MCI-31(1)/2010-MED/49068
described as "Regulations on Graduate Medical Education (Amendment) 2010,
(Part II)" has been published by the Medical Council of India to amend the
"Regulations on Graduate Medical Education, 1997". Notification
No.MCI.18(1)/2010-MED/49070 described as "Post-graduate Medical Education
(Amendment) Regulation, 2010 (Part II)" has been issued by the said Council
to amend the "Post Graduate Medical Education Regulations, 2000". Both the
Regulations came into force simultaneously on their publication in the
Official Gazette. The third and fourth Notifications both bearing No. DE-
22-2012 dated 31.5.2012, relating to admission in the BDS and MDS courses
published by the Dental Council of India, are similar to the notifications
published by the MCI.

2. The four aforesaid Notifications have been challenged on several
grounds. The major areas of challenge to the aforesaid Notifications are:

(i) The powers of the Medical Council of India and the Dental Council
of India to regulate the process of admissions into medical colleges
and institutions run by the State Governments, private individuals
(aided and unaided), educational institutions run by religious and
linguistic minorities, in the guise of laying down minimum standards
of medical education, as provided for in Section 19A of the Indian
Medical Council Act, 1956, and under Entry 66 of List I of the
Seventh Schedule to the Constitution.

(ii) Whether the introduction of one National Eligibility-cum-Entrance
Test (NEET) offends the fundamental right guaranteed to any citizen
under Article 19(1)(g) of the Constitution to practise any profession
or to carry on any occupation, trade or business?

(iii) Whether NEET violates the rights of religious and linguistic
minorities to establish and administer educational institutions of
their choice, as guaranteed under Article 30 of the Constitution?

(iv) Whether subordinate legislation, such as the right to frame
Regulations, flowing from a power given under a statute, can have an
overriding effect over the fundamental rights guaranteed under
Articles 25, 26, 29(1) and 30 of the Constitution?

(v) Whether the exclusion of Entry 11 from the State List and the
introduction of Entry 25 in the Concurrent List by the Constitution
Forty Second (Amendment) Act, 1976, makes any difference as far as
the Regulations framed by the Medical Council of India under Section
33 of the 1956 Act and those framed by the Dental Council of India
under Section 20 of the Dentists Act, 1948, are concerned, and
whether such Regulations would have primacy over State legislation on
the same subject?

(vi) Whether the aforesaid questions have been adequately answered in
T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], and
in the subsequent decisions in Islamic Academy of Education Vs. State
of Karnataka [(2003) 6 SCC 697], P.A. Inamdar Vs. State of
Maharashtra [(2005) 6 SCC 537] and Indian Medical Association Vs.
Union of India [(2011) 7 SCC 179]? and

(vii) Whether the views expressed by the Constitution Bench comprised of
Five Judges in Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7 SCC
120] have any impact on the issues raised in this batch of matters?

3. In order to appreciate the challenge thrown to the four
notifications, it is necessary to understand the functions and duties of
the Medical Council of India under the Indian Medical Council Act, 1956,
and the Dental Council of India constituted under the Dentists Act, 1948.
The submissions advanced in regard to the MBBS and Post-graduate courses
will apply to the BDS and MDS courses also.

4. The Indian Medical Council Act, 1933, was replaced by the Indian
Medical Council Act, 1956, hereinafter referred to as "the 1956 Act", inter
alia, with the following objects in mind :-

"(a) to give representation to licentiate members of the medical
profession, a large number of whom are still practicing in the
country;

(b) to provide for the registration of the names of citizens of
India who have obtained foreign medical qualifications which
are not at present recognized under the existing Act;

(c) to provide for the temporary recognition of medical
qualifi-cations granted by medical institutions in countries
outside India with which no scheme of reciprocity exists in
cases where the medical practitioners concerned are
attached for the time being to any medical institution in India
for the purpose of teaching or research or for any charitable
objects;

(d) to provide for the formation of a Committee of Post-
graduate Medical Education for the purpose of assisting the
Medical Council of India to prescribe standards of post-graduate
medical education for the guidance of universities and to
advise universities in the matter of securing uniform standards
for post-graduate medical education throughout India;

(e) To provide for the maintenance of an all-India
register by the Medical Council of India, which will contain the
names of all the medical practitioners possessing recognized
medical qualifications."

5. The Medical Council of India, hereinafter referred to as "MCI", has
been defined in Section 2(b) of the 1956 Act to mean the Medical Council of
India constituted under the said Act. The Council was constituted under
Section 3 of the Indian Medical Council Act, 1956. Section 6 of the
aforesaid Act provides for the incorporation of the Council as a body
corporate by the name of Medical Council of India, having perpetual
succession and a common seal, with power to acquire and hold property, both
movable and immovable, and to contract, and to sue and be sued by the said
name.

6. The powers vested in the MCI are essentially recommendatory in
nature. Section 10A, which was introduced in the 1956 Act by Amending Act
31 of 1993, with effect from 27th August, 1992, inter alia, provides that
notwithstanding anything contained in the Act or any other law for the time
being in force:-

(a) no person shall establish a medical college; or

(b) no medical college shall :-

(i) open a new or higher course of study or training
(including a postgraduate course of study or training) which would
enable a student of such course or training to qualify himself for
the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of
study or training (including a postgraduate course of study or training),

except with the previous permission of the Central Government obtained in
accordance with the provisions of this section.

Under Section 10A the function of the MCI is purely recommendatory
for the purpose of grant of permission by the Central Government to
establish a new medical college or to introduce a new course of study.

7. Section 19A which was introduced into the 1956 Act by Act 24 of
1964 with effect from 16th June, 1964, provides for the Council to
prescribe "minimum standards of medical education". Since Section 19A will
have some bearing on the judgment itself, the same is extracted hereinbelow
in full :-
"19A. Minimum standards of medical education - (1) The Council
may prescribe the minimum standards of medical education
required for granting recognised medical qualifications (other
than postgraduate medical qualifications) by universities or
medical institutions in India.

(ii) Copies of the draft regulations and of all subsequent
amendments thereof shall be furnished by the Council to all
State Governments and the Council shall before submitting the
regulations or any amendment thereof, as the case may be, to the
Central Government for sanction, take into consideration the
comments of any State Government received within three months
from the furnishing of the copies as aforesaid.

(3) The Committee shall from time to time report to the Council
on the efficacy of the regulations and may recommend to the
Council such amendments thereof as it may think fit."

8. Section 20 of the 1956 Act, provides for a Post-graduate Medical
Education Committee to assist the Medical Council of India to prescribe
standards of post-graduate medical education for the guidance of the
Universities. For the sake of reference, the relevant portions of Section
20 of the 1956 Act with which we are concerned, are also extracted
hereinbelow :-

"20. Post-graduate Medical Education Committee for assisting
Council in matters relating to post-graduate medical education -
(1) The Council may prescribe standards of Postgraduate Medical
Education for the guidance of Universities, and may advise
Universities in the matter of securing uniform standards for
Postgraduate Medical Education through out India, and for this
purpose the Central Govt. may constitute from among the members
of the Council a Postgraduate Medical Education Committee
(hereinafter referred to as the Post-graduate Committee).

9. By the first of the two Notifications dated 21st December, 2010,
being MCI-31(1)/2010-Med./49068, the Medical Council of India, in purported
exercise of the powers conferred by Section 33 of the 1956 Act, made
various amendments to the 1997 Regulations on Graduate Medical Education.
The most significant amendment, which is also the subject matter of
challenge in some of these writ petitions and transferred cases, is clause
5 in Chapter II of the Regulations. The relevant paragraph in the
Amendment Notification reads as follows:

"6. In Chapter II, Clause 5 under the heading "Procedure for
selection to MBBS Course shall be as follows" shall be
substituted as under:-

I. There shall be a single eligibility cum entrance
examination namely 'National Eligibility-cum-Entrance Test for
admission to MBBS course' in each academic year. The overall
superintendence, direction and control of National Eligibility-
cum-Entrance Test shall vest with Medical Council of India.
However, Medical Council of India with the previous approval of
the Central Government shall select organization/s to conduct
'National Eligibility-cum-Entrance Test for admission to MBBS
course.

II. In order to be eligible for admission to MBBS course for a
particular academic year, it shall be necessary for a candidate
to obtain minimum of 50% (Fifty Percent) marks in each paper of
National Eligibility-cum-Entrance Test held for the said
academic year. However, in respect of candidates belonging to
Scheduled Casts, Scheduled Tribes and Other Backward Classes,
the minimum percentage shall be 40% (Forty Percent) in each
paper and in respect of candidates with locomotory disability of
lower limbs, the minimum percentage marks shall be 45% (Forty
Five Percent) in each paper of National Eligibility-cum-Entrance
Test:

Provided when sufficient number of candidates belonging to
respective categories fail to secure minimum marks as prescribed
in National Eligibility-cum-Entrance Test in any academic year
for admission to MBBS Course, the Central Government in
consultation with Medical Council of India may at its discretion
lower the minimum marks required for admission to MBBS Course
for candidates belonging to respective categories and marks so
lowered by the Central Government shall be applicable for the
said year only.

III. The reservation of seats in medical colleges for respective
categories shall be as per applicable laws prevailing in States/
Union Territories. An all India merit list as well as State-
wise merit list of the eligible candidates shall be prepared on
the basis of the marks obtained in National Eligibility-cum-
Entrance Test and candidates shall be admitted to MBBS course
from the said lists only.

IV. No candidate who has failed to obtain the minimum
eligibility marks as prescribed in Sub Clause(ii) above shall be
admitted to MBBS Course in the said academic year.

V. All admissions to MBBS course within the respective
categories shall be based solely on marks obtained in the
National Eligibility-cum-Entrance Test.

(Dr. P. Prasannaraj)
Additional Secretary
Medical Council of India"

10. Similarly, by virtue of Notification No. MCI.18(1)/2010-Med./49070,
in purported exercise of the powers conferred by Section 33 of the 1956
Act, the Medical Council of India, with the previous approval of the
Central Government, made similar amendments to the Postgraduate Medical
Education Regulations, 2000, providing for a single eligibility cum
entrance examination. For the sake of reference, the portion of the
notification which is relevant for our purpose is extracted hereinbelow:
"No. MCI.18(1)/2010-Med./49070. – In exercise of the powers
conferred by Section 33 of the Indian Medical Council Act,
1956(102 of 1956), the Medical Council of India with the
previous approval of the Central Government hereby makes the
following regulations to further amend the “Postgraduate Medical
Education Regulations, 2000”, namely:-

1. (i) These Regulations may be called the Postgraduate Medical
Education (Amendment) Regulations, 2010 (Part-II)”.

(ii) They shall come into force from the date of their
publication in the Official Gazette.

2. In the “Postgraduate Medical Education Regulations, 2000”,
the following additions /modifications / deletions /
substitutions, shall be as indicated therein:-

3. Clause 9 under the heading ‘SELECTION OF POSTGRADUATE
STUDENTS’ shall be substituted as under:-

“9. Procedure for selection of candidate for Postgraduate
courses shall be as follows:

I. There shall be a single eligibility cum entrance
examination namely ‘National Eligibility-cum-Entrance Test for
admission to Postgraduate Medical Courses’ in each academic
year. The overall superintendence, direction and control of
National Eligibility-cum-Entrance Test shall vest with Medical
Council of India. However, Medical Council of India with the
previous approval of the Central Government shall select
organization/s to conduct ‘National Eligibility-cum-Entrance
Test for admission to Postgraduate courses’."

Two similar Notifications both bearing No.DE-22-2012 dated
31.5.2012, were published by the Dental Council of India for the same
purpose.

11. The challenge to these Notifications has thrown up various issues,
which include the powers of the Central and the State Governments to
legislate on matters relating to education under Entry 66 of List I of the
Seventh Schedule to the Constitution and Entry 25 of List III which was
introduced by way of the Constitution (Forty-second Amendment) Act, 1976,
having particular regard to the fact that the previous Entry No. 11 in the
State List, was omitted by the said amendment, doing away with education as
a State subject and denuding the State of its powers to legislate on
matters relating to education except in accordance with Entry 25 of the
Concurrent List. In fact, what has been pointed out on behalf of some of
the parties is that by omitting Entry 11 from the State List and including
Entry 25 in the Concurrent List of the Seventh Schedule, the Union
Government acquired the authority to also legislate on matters relating to
education, which it did not have previously.

12. Another common submission, which is of great significance as far as
these matters are concerned, was with regard to the adverse impact of the
single entrance examination on the fundamental right guaranteed to all
citizens under Article 19(1)(g) of the Constitution to practise any
profession, or to carry on any occupation, trade or business. The
provisions of Article 30, preserving the right of both religious and
linguistic minorities, to establish and administer educational institutions
of their choice, were also highlighted by learned counsel for some of the
Petitioners.

13. The major challenge, however, was with regard to the MCI's attempt
to regulate admissions to the M.B.B.S. and Post-graduate Courses in all
medical colleges and medical institutions in the country run by the
different State Governments and by private agencies falling within the
ambit of Article 19(1)(g) and in some cases Article 30 of the Constitution
as well by introducing NEET. One of the facets of such challenge was the
inter-play of Article 29(2) and Article 30(1), as also Article 30(2) of the
Constitution. Various authorities have been cited on behalf of the
different parties, harking back to the Presidential Reference in the Kerala
Education Bill case [(1959] S.C.R. 995], and the subsequent views, which
have been expressed on most of the aforesaid issues by various combinations
of Judges, which include combinations of Eleven-Judges, Nine-Judges, Seven-
Judges, Five-Judges and Three-Judges, of this Court. While most of the
decisions touch upon the main theme in these matters regarding the right of
either the Central Government or the State Government or the MCI to
regulate admissions into medical colleges, the issue raised before us
concerning the authority of the MCI and the DCI to conduct an All India
Entrance Examination, which will form the basis of admissions into the
M.B.B.S. as well as Post-graduate Courses in all medical colleges and
institutions all over the country, could not be considered in the earlier
judgments. As a result, after the introduction of NEET, admissions to the
M.B.B.S. and Post-graduate courses and the BDS and MDS courses can be made
only on the basis of the Select List prepared in accordance with the
results of the All India Entrance Test, which would not only eliminate a
large number of applicants from admission to the medical colleges, but
would also destroy the very essence of Articles 25, 26, 29(1) and 30 of the
Constitution, since admission is one of the more important functions of an
institution.

14. The submissions in these cases were commenced by Mr. Harish Salve,
learned senior counsel appearing for the Christian Medical College,
Vellore, and the Christian Medical College, Ludhiana, the Petitioners in
Transferred Cases (C) Nos. 98-99 of 2012. Mr. Salve's submissions were
supplemented by Mr. K. Parasaran, Dr. Rajiv Dhawan, Mr. K.K. Venugopal and
Mr. R. Venkataramani, learned senior counsel, and several others appearing
for some of the religious and linguistic minorities referred to in Article
30 of the Constitution.

15. Mr. Salve submitted that the two Notifications both dated 21st
December, 2010, incorporating amendments in the Regulations on Graduate
Medical Education, 1997 and the Post-Graduate Medical Education
Regulations, 2000, and introducing a single National Eligibility-cum-
Entrance Test (NEET) for admission to the MBBS course and the Post-graduate
course in each academic year throughout the country, had been challenged by
the Petitioners before the Madras High Court, in Writ Petition Nos.24109 of
2011 and 24110 of 2011. Mr. Salve urged that the said amendments stifled
and stultified the fundamental rights guaranteed to religious minorities
under Articles 25, 26, 29(1) and 30 of the Constitution of India. Mr.
Salve submitted that Article 25 secures to every person, subject to public
order, health and morality and to the other provisions of Part-III of the
Constitution, freedom of conscience and the right freely to profess,
practise and propagate religion. The said right guarantees to every person
freedom not only to entertain such religious belief, but also to exhibit
his belief in such outward acts as he thought proper and to propagate or
disseminate his ideas for the edification of others. Mr. Salve urged that
this proposition was settled by this Court as far back as in 1954 by a
Bench of Seven-Judges in Commr., H.R.E. Vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt [1954 SCR 1005].

16. Mr. Salve submitted that subject to public order, morality and
health, Article 26 of the Constitution guarantees to every religious
denomination or a section thereof, the right to establish and maintain
institutions for religious and charitable purposes and to manage its own
affairs in matters of religion. Mr. Salve urged that in regard to affairs
in matters of religion, the right of management given to a religious body
is a guaranteed fundamental right which no legislation can take away. Mr.
Salve submitted that Article 30(1) of the Constitution gives religious and
linguistic minorities the right to establish and to administer educational
institutions of their choice, which was reiterated and emphasised in T.M.A.
Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], decided by a
Bench of Eleven Judges.

17. Mr. Salve submitted that the Christian Medical College, Vellore,
hereinafter referred to as "CMC Vellore", was established 113 years ago as
a one-bed clinic by one Dr. Ida Sophia Scudder, the daughter of an American
Medical Missionary. She started training Compounders (Health Assistants) in
1903 and Nurses in 1909, and was able to establish a Missionary Medical
School for women leading to the Licentiate in Medical Practice in 1918
which was upgraded to the MBBS course affiliated to the Madras University.
Admission was thrown open to men for the MBBS course in 1947. As the
college grew, from 1948 it started admitting students by an All-India
Entrance Examination, followed by an in-depth interview. By 1950, the
affiliation to the University was confirmed and the intake was increased to
60 under-graduate MBBS students in 1964, which has now increased to 100
MBBS students. To meet the needs of the local population, a large number
of Higher Speciality Courses, Post-graduate Medical Courses, Allied Health
Sciences Courses and Courses in Nursing, have also been developed over the
years.

18. Currently, there are 11 Post-graduate Medical Diploma Courses, 23
Post-graduate Medical Degree Courses and 17 Higher Specialty Courses
approved by the Medical Council of India and affiliated to the Tamil Nadu
Dr. MGR Medical University. Today, the CMC Vellore, a minority, unaided,
non-capitation fee educational institution, is run by the Petitioner
Association comprised of 53 Christian Churches and Christian Organizations
belonging to the Protestant and Orthodox traditions. The stated object of
the Petitioner Association, as mentioned in its Memorandum of Association,
Constitution and the Bye-laws is "the establishment, maintenance and
development of a Christian Medical College and Hospitals, in India, where
women and men shall receive education of the highest grade in the art and
science of medicine and of nursing, or in one or other of the related
professions, to equip them in the spirit of Christ for service in the
relief of suffering and the promotion of health".

19. Out of 100 seats available for the under-graduate MBBS Course, 84
are reserved for candidates from the Christian community and the remaining
are available for selection in the open category with reservation for
candidates belonging to the Scheduled Castes and Scheduled Tribes.
Similarly, 50% of the Post-graduate seats are reserved for Christian
candidates and the remaining 50% are available for open selection on an All-
India basis. Mr. Salve submitted that all students selected for the MBBS
course are required to sign a bond agreeing to serve for a period of two
years in areas of need, upon completion of their courses. Similarly, Post-
graduate students selected in the Christian minority category have also to
give a similar undertaking.

20. Mr. Salve submitted that the Medical Colleges and institutions run
by the Writ Petitioners charge fees which are subsidised and are even
lower than the fees charged by Government Medical Colleges. Liberal
scholarships are given by the College to those who have difficulty in
making the payments, which include boarding, lodging and University charges
(which are considerably higher). Learned counsel submitted that the
institution was established by a Christian minority doctor in response to
her religious beliefs and the command of Jesus Christ exhorting His
disciples and followers to heal the sick and has evolved an admission
process for both its undergraduate and post graduate courses in order to
ensure that the selected candidates are suitable for being trained
according to the ideology professed at Vellore. Mr. Salve urged that the
selection process is comprised of an All India Entrance Test followed by a
searching interview and special test devised in 1948. Such process has
been improved and fine-tuned over the years so that the candidates are not
only trained as health professionals, but to also serve in areas of need in
difficult circumstances.

21. It was pointed out that this system of admission resorted to by the
Petitioner has successfully reflected the ideals with which the medical
college was founded and a survey conducted in 1992 established the fact
that the majority of graduates and post-graduates, who have passed out from
the college, have been working in India for more than 10 years after their
graduation and the majority among them were working in non-metropolitan
areas of the country. This evaluation remained the same, even during
surveys conducted in 2002 and 2010, and is in striking contrast to similar
surveys carried out by other medical institutions of equal standard, where
only a small number of graduates have been working in non-metropolitan
areas.

22. Mr. Salve submitted that in 1993, an attempt was made by the
Government of Tamil Nadu to interfere with the admission process in the
institution by a letter dated 7th May, 1993, directing the Petitioner to
implement the scheme framed by this Court in the case of Unni Krishnan Vs.
State of U.P. [(1993) 1 SCC 645], insofar as the undergraduate course in
Nursing was concerned. The Petitioner-institution filed Writ Petition
No.482 of 1993 before this Court challenging the State Government's
attempts to interfere with the admission process of the institution as
being contrary to and in violation of the rights guaranteed to it under
Article 30 of the Constitution. In the pending Writ Petition, various
interim orders were passed by the Constitution Bench of this Court
permitting the institution to take resort to its own admission procedure
for the undergraduate course in the same manner in which it had been doing
in the past. The said Writ Petition was heard in 2002, along with the
T.M.A. Pai Foundation case (supra), wherein eleven questions had been
framed.

While hearing the matters, the Chief Justice formulated five issues
to encompass all the eleven questions, on the basis of which the hearing
was conducted, and the same are extracted below:

"1. Is there a fundamental right to set up educational
institutions and, if so, under which provision?

2. Does Unni Krishnan case [(1993) 4 SCC 111] require
reconsideration?

3. In case of private institutions (unaided and aided), can
there be government regulations and, if so, to what extent?

4. In order to determine the existence of a religious or
linguistic minority in relation to Article 30, what is to be the
unit - the State or the country as a whole?

5. To what extent can the rights of aided private minority
institutions to administer be regulated?"

Out of the eleven questions framed by the Bench, Questions 3(b), 4
and 5(a) are extremely relevant for deciding the questions raised in the
Writ Petition filed by the Petitioner-institution. For the sake of
reference, the said three Questions are extracted hereinbelow:
"Q3(b). To what extent can professional education be
treated as a matter coming under minorities rights under Article
30?

Q4. Whether the admission of students to minority educational
institutions, whether aided or unaided, can be regulated by the
State Government or by the University to which the institution
is affiliated?

Q5(a). Whether the minority's rights to establish and
administer educational institutions of their choice will include
the procedure and method of admission and selection of
students?"

23. Mr. Salve submitted that the answer given by the Eleven-Judge Bench
to the first Question is that Article 30(1) re-emphasises the right of
religious and linguistic minorities to establish and administer educational
institutions of their choice. The use of the words "of their choice"
indicates that even professional educational institutions would be covered
by Article 30.

24. The answer to the second Question is that, except for providing the
qualifications and minimum conditions of eligibility in the interest of
academic standards, admission of students to unaided minority educational
institutions cannot be regulated by the State or University concerned. Mr.
Salve pointed out that a note of caution was, however, introduced and it
was observed that the right to administer, not being an absolute right,
there could be regulatory measures for ensuring proper educational
standards and maintaining the excellence thereof, particularly in regard to
admissions to professional institutions. It was further held that a
minority institution does not cease to be so, when it receives grant-in-aid
and it would, therefore, be entitled to have a right to admit students
belonging to the minority group, but at the same time it would be required
to admit a reasonable number of non-minority students so that rights under
Article 30(1) were not substantially impaired and the rights of a citizen
under Article 29(2) of the Constitution were not infringed. However, the
concerned State Governments would have to notify the percentage of non-
minority students to be admitted in the institution. Amongst students to
be admitted from the minority group, inter se merit would have to be
ensured and, in the case of aided professional institutions, it could also
be submitted that in regard to the seats relating to non-minority students,
admission should normally be on the basis of the common entrance test held
by the State agency, followed by counselling wherever it exists.

25. In reply to the third Question, it was held that a minority
institution may have its own procedure and method of admission as well as
selection of students, but such a procedure would have to be fair and
transparent and the selection of students in professional and higher
educational colleges should be on the basis of merit. The procedure
selected for admission by the minority institution ought not to ignore the
merit of students for admission while exercising the right to admit
students by the colleges aforesaid, as in that event, the institution will
fail to achieve excellence. The said procedure should not amount to
maladministration.

26. Some of the issues decided in the T.M.A. Pai Foundation case came
up for clarification in the Islamic Academy of Education case (supra) and
for further interpretation in P.A. Inamdar's case (supra), before a Bench
of Seven-Judges, wherein the Petitioner-Association was duly represented.
The Hon'ble Judges reiterated the views expressed in the T.M.A. Pai
Foundation case that there cannot be any reservation in private unaided
institutions, which had the right to have their own admission process, if
the same was fair, transparent, non-exploitative and based on merit. Mr.
Salve referred to paragraph 125 of the judgment in P.A. Inamdar's case
(supra), which is relevant for our purpose, and reads as follows:

"125. As per our understanding, neither in the judgment of Pai
Foundation [(2002) 8 SCC 481] nor in the Constitution Bench
decision in Kerala Education Bill [1959 SCR 995] which was
approved by Pai Foundation, is there anything which would allow
the State to regulate or control admissions in the unaided
professional educational institutions so as to compel them to
give up a share of the available seats to the candidates chosen
by the State, as if it was filling the seats available to be
filled up at its discretion in such private institutions. This
would amount to nationalisation of seats which has been
specifically disapproved in Pai Foundation [(2002) 8 SCC 481].
Such imposition of quota of State seats or enforcing reservation
policy of the State on available seats in unaided professional
institutions are acts constituting serious encroachment on the
right and autonomy of private professional educational
institutions. Such appropriation of seats can also not be held
to be a regulatory measure in the interest of the minority
within the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution of
India. Merely because the resources of the State in providing
professional education are limited, private educational
institutions, which intend to provide better professional
education, cannot be forced by the State to make admissions
available on the basis of reservation policy to less meritorious
candidates. Unaided institutions, as they are not deriving any
aid from State funds, can have their own admissions if fair,
transparent, non-exploitative and based on merit."

27. Mr. Salve submitted that after this decision, the Petitioner
Institution continued to admit students to its various graduate and post-
graduate courses by following its own admission procedure, as it had been
doing for the last several decades. Mr. Salve submitted that the Committee
set up by the Government of Tamil Nadu has permitted the Institution to
follow its own admission procedure for undergraduate M.B.B.S. course for
the academic year 2012-2013.

28. While matters were thus poised, the Medical Council of India framed
the impugned amended Regulations, which, according to Mr. Salve, not only
violated the fundamental rights guaranteed under Articles 25, 26 and 30 of
the Constitution to minority run institutions, but if implemented, would
destroy the very objective with which the hospital had been set up in
response to Christ's mission of healing the sick. Mr. Salve submitted that
the impugned Notifications were inconsistent with the law laid down by the
Supreme Court in its various decisions dealing with the rights of unaided,
non-capitation fee minority institutions to admit students of their choice.

29. Mr. Salve submitted that right from the decision in Unni
Krishnan's case (supra), when the State Government first sought to
interfere with the admission process adopted by the Petitioner Institution,
this Court has, by virtue of different interim and final orders, held that
there could be no reservation of seats in institutions like the ones run by
the Petitioner, which are wholly unaided and have always been permitted to
admit students of their choice, in keeping with their status as minority
unaided professional institutions. It was urged that Clause 9(vi) of the
Post-Graduate Notification, which provides for reservation, is ultra vires
the provisions of Article 30(1) of the Constitution. Furthermore, when the
State Government tried to reserve 50% of the seats in the Under-graduate
courses, this Court granted a stay which continues to be operative.

30. Mr. Salve submitted that the question of reservation of seats in
minority institutions, which has been introduced by the impugned
amendments, both in respect of the Under-graduate and the Post-Graduate
courses, does violence to the rights conferred on minorities under Article
30(1) of the Constitution of India, as interpreted by this Court in various
judgments starting from 1957 till 2002, when the question was finally
decided by an Eleven-Judge Bench in the T.M.A. Pai Foundation case (supra).
Even the reservation created for NRIs in Unni Krishnan's case (supra) case
was declared to be ultra vires the Constitution of India.

31. It was urged that in a recent decision of this Court in the Indian
Medical Association case (supra), it has, inter alia, been held that the
level of regulation that the State could impose under Article 19(6) on the
freedoms enjoyed pursuant to Sub-Clause (g) of Clause (1) of Article 19 by
non-minority educational institutions, would be greater than what could be
imposed on minority institutions under Article 30(1) thereof, which
continued to maintain their minority status by admitting students mostly
belonging to the minority community to which the minority institutions
claim to belong, except for a sprinkling of non-minority students, an
expression which has been used in P.A. Inamdar's case and earlier cases as
well. Mr. Salve contended that the Petitioner Institution, from its very
inception reserved up to 85% of its seats in the Under-graduate courses and
50% of the Post-Graduate seats for Christian students exclusively. In the
remaining 15% of the seats in the Under-graduate courses, reservations have
been made for Scheduled Castes and Scheduled Tribes candidates.

32. Mr. Salve contended that the impugned Notifications and the
amendments to the MCI Regulations sought to be introduced thereby are
contrary to the judgments delivered by the Constitution Bench. Learned
counsel submitted that till the amendments were introduced, the concerned
institutions had been conducting their own All India Entrance Tests for
admission to the MBBS and Post-Graduate medical courses. Mr. Salve urged
that there has been no complaint of maladministration as far as the
institutions run by the Petitioner Association are concerned.

33. It was further submitted that all the Petitioners in this batch of
cases are either religious minority educational institutions or linguistic
minority institutions; non-minority self-financing colleges, self-financing
"Deemed to be Universities" under Section 3 of the University Grants
Commission Act and the State Governments which run State medical colleges.
However, it is the Christian Medical College, Vellore, which is among the
very few institutions that fall in the first category. The learned counsel
urged that without demur, the Christian Medical College, Vellore, has been
consistently rated among the top ten medical colleges in the country and
usually ranked first or second. The excellence of patient care and academic
training has been recognised, both at the national and international
levels, and its contribution to health research has also been recognised as
pioneering work by both national and international research funding
agencies. Mr. Salve submitted that a part of the teachings of Jesus
Christ, as documented in the Gospels, which form part of the New Testament,
was to reach out to and to heal the sick, which command has been
institutionalised by the Petitioner ever since it was established as a one-
bed mission clinic-cum-hospital in 1900. Mr. Salve submitted that the
activities of the Petitioner Institution clearly attract the provisions of
Article 25 of the Constitution and through the Christian Medical College,
Vellore, its activities are designed to achieve the avowed objective of
providing human resources for the healing ministry of the Church. The
activity of running medical courses and allied health sciences and nursing
courses, in order to ensure constant supply of doctors and other para-
medical staff to those hospitals, engaged in the healing of the sick, are
acts performed by the Petitioner in furtherance of its religious faith and
beliefs. It was submitted that in the decision of the Constitution Bench of
Seven Hon'ble Judges in the case of Commissioner, Hindu Religious
Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
(1954 SCR 1005), this Court held that Article 25 of the Constitution,
protects not only the freedom of religious opinion, but also acts done in
pursuance of religious beliefs, as is clear from the expression "practice
of religion".

34. Mr. Salve also referred to the decision in the case of Ratilal
Panachand Gandhi Vs. The State of Bombay & others, reported in 1954 SCR
1055, which was also a decision rendered by a Constitution Bench of this
Court relying upon the decision in the Shirur Mutt case (supra), wherein
similar sentiments were expressed. Various other decisions on the same
issue were also referred to, which, however, need not detain us.

35. Mr. Salve further urged that the Petitioner Institution is still
one of the largest tertiary care hospitals in the country, where patients
come from all over India for expert treatment. The medical college combines
both medical treatment and education which, besides being a religious
activity, is also a charitable activity, thereby bringing it within the
ambit of Article 26(a) and (b) of the Constitution. Mr. Salve submitted
that, in fact, the said activities had been recognised by this Court in the
T.M.A. Pai Foundation case (supra), wherein in paragraph 26, it was held
as follows :-
"26. The right to establish and maintain educational
institutions may also be sourced to Article 26(a), which grants,
in positive terms, the right to every religious denomination or
any section thereof to establish and maintain institutions for
religious and charitable purposes, subject to public order,
morality and health. Education is a recognised head of charity.
Therefore, religious denominations or sections thereof, which
do not fall within the special categories carved out in Article
29(1) and 30(1), have the right to establish and maintain
religious and educational institutions."

36. Today the Petitioner has in place a selection process for
admission to its Under-graduate and Post-graduate courses, by which it
seeks to select candidates imbibed in the spirit of Christ for the purpose
of healing the sick and to dedicate their lives to serve the needy, both in
the Petitioner Institution and also in far flung areas, where people have
no ready access to medical care, through the Christian Mission Hospitals
run by the members of the Petitioner Association. Mr. Salve submitted that
the doctors, who are the product of the Petitioner Institution, are not
only well-trained in medicine, but have also been imparted with values in
the treatment of the sick and the needy in keeping with the teachings of
Christ, who looked on everybody with compassion. Mr. Salve urged that the
admission process has proved to be highly successful and effective, and in
the case of St. Stephen's College Vs. University of Delhi [(1992) 1 SCC
558], this Court upheld the same as it was found to meet the objectives for
which the Institution itself had been established, despite the fact that it
was an aided minority institution. Mr. Salve pointed out that in paragraph
54 of the judgment, this Court had occasion to deal with the expression
"management of the affairs of the institution” and it was held that this
management must be free from control so that the founder or their nominees
could mould the Institution as they thought fit and in accordance with the
ideas of how the interests of the community in general and the institution
in particular could be served.

37. As far as unaided, non-capitation fee, religious minority
institutions are concerned, Mr. Salve submitted that so long as the
admission procedure adopted is fair, transparent and non-exploitative and
there is no complaint of maladministration, it would be grossly unjust and
unconstitutional to interfere with the administration of such an
institution, in complete violence of the freedoms guaranteed under Articles
25, 26 and 30 of the Constitution. Mr. Salve submitted that if the
National Eligibility-cum-Entrance Test was to be applied and followed in
the case of minority institutions protected under Article 30 of the
Constitution, it would result in complete denudation of the freedoms and
rights guaranteed to such institutions under the Constitution, as it would
run counter to the very principles on which admissions in such institutions
are undertaken.

38. Mr. Salve submitted that neither Section 10A nor Section 19A of the
1956 Act, which were inserted in the principal Statute by amendment,
contemplate that the MCI would itself be entitled to conduct entrance tests
for admission into different medical colleges and hospitals in India.
Learned counsel submitted that the main purpose of constituting the MCI
was to ensure excellence in the field of medical education and for the said
purpose, to regulate the standards of teaching and the infrastructure
available for establishment of a new medical college or to introduce a new
course of study in an existing college. What is made clear from Section
10A is that no new medical college could be established and recognised by
the Central Government without the recommendation of the Medical Council of
India. Such recognition would be dependent upon inspection and
satisfaction that the proposed new medical college satisfied all the
conditions stipulated by the Medical Council of India for starting a new
medical college. Section 19A, which was inserted into the principal Act
much before Section 10A, speaks of the minimum standards of medical
education, other than post-graduate medical qualification, which the
Medical Council of India may prescribe as being required for grant of
recognition to medical institutions in India.

39. Mr. Salve urged that while Section 33 of the 1956 Act empowered the
Council, with the previous sanction of the Central Government, to make
Regulations to carry out the purposes of the Act and clause (l) empowered
the Council to make Regulations with regard to the conduct of professional
examinations, qualifications of examiners and the conditions of admission
to such examinations, the same did not empower the Council to actually
conduct the examinations, which continues to be the prerogative of the
institution concerned.

40. Mr. Salve submitted that in State of A.P. Vs. Lavu
Narendranath[(1971) 1 SCC 607], this Court had considered the validity of a
test held by the State Government for admission to medical colleges in the
State of Andhra Pradesh and had held that although the Andhra University
Act, 1926, prescribed the minimum qualification of passing HSC, PUC, ISC
examinations for entry into a higher course of study, owing to the limited
number of seats, the Government, which ran the medical colleges, had a
right to select students out of the large number of candidates who had
passed the entrance examination prescribed by it. It was also held that
merely because the Government had supplemented the eligibility rules by a
written test in the subjects with which the candidates were already
familiar, there was nothing unfair in the test prescribed nor did it
militate against the powers of the Parliament under Entry 66 of List I,
which is not relatable to a screening test prescribed by the Government or
by a University for selection of students out of a large number of students
applying for admission to a particular course of study. This Court held
that such a test necessarily partakes of the character of an eligibility
test as also a screening test. Mr. Salve urged that in such a situation,
minimum qualifying marks were necessary, but the said question has not been
addressed at all in Lavu Narendranath's case (supra), since it did not
arise in that case.

41. Mr. Salve submitted that the Petitioner Institution has been
supplementing the primary duty enjoined on the State under Articles 21 and
47 of the Constitution in providing health care to the people in different
parts of the country, including the rural and remote areas, through the
several hospitals run by Christian Churches and organizations. Any
interference with the manner in which these minority institutions are being
administered, except where the standards of excellence are compromised,
would not only strike at the very reason for their existence, but would
disturb the health care services being provided by them. Mr. Salve
submitted that the MCI, which is a creature of Statute, cannot travel
beyond the powers vested in it by the Statute and its attempt to regulate
and control the manner in which admissions are to be undertaken in these
institutions, by introducing a single entrance examination, goes against
the very grain of the fundamental rights vested in the religious and
linguistic minorities to establish and administer educational institutions
of their choice and to impart their religious values therein, so long as
the same was not against the peace and security of the State.

42. Mr. Salve urged that the amended provisions of the MCI Regulations
as impugned, were liable to be struck down as being contrary to the
provisions of Articles 25, 26 and 30 of the Constitution, read with
Sections 10A and 19A of the Indian Medical Council Act, 1956.

43. Having heard Mr. Harish Salve on the rights claimed by religious
minority medical institution enjoying the protection of Articles 25, 26,
29(1) and 30 of the Constitution, we may now turn to the submissions made
by Mr. K. Parasaran, learned Senior Advocate, appearing on behalf of the
Vinayaka Missions University, run by a linguistic minority, also enjoying
the rights guaranteed under Article 19(1)(g) and the protection of Article
30 of the Constitution.

44. Mr. Parasaran began by reiterating Mr. Salve's submission that while
minority institutions enjoyed the fundamental rights guaranteed to any
other individual or institution under Article 19(1)(g) of the Constitution,
in addition, linguistic minorities, like religious minorities, enjoy the
special protection afforded under Article 30 of the Constitution. Mr.
Parasaran submitted that just as in the case of religious minorities,
linguistic minorities also have the right to establish and administer
educational institutions of their choice, which included the right to admit
students therein.

45. Mr. Parasaran submitted that the impugned Regulations are ultra
vires, unconstitutional and violative of Article 19(1)(g) of the
Constitution, not only in respect of institutions run by minorities, but
also to all institutions covered by NEET. Mr. Parasaran submitted that if
the Indian Medical Council Act, 1956, is to be understood to empower the
MCI to nominate the students for admission, it would be invalid, since the
said Act and the amendments to the Act, which are relevant for the present
cases, were enacted before the 42nd Constitution Amendment, whereby Entry
11 was removed from List II of the Seventh Schedule and was relocated as
Entry 25 in List III of the said Schedule, came into force on 3rd January,
1977.

46. Mr. Parasaran also urged that as was held by this Court in Indian
Express Newspapers Vs. Union of India [(1985) 1 SCC 641], even if the
Regulations are accepted to be subordinate legislation, the same were also
open to challenge:
(a) on the ground on which plenary legislation is questioned.

(b) on the ground that it does not conform to the statute under which
it is made.

(c) on the ground that it is contrary to some other statute as it
should yield to plenary legislation, and/or

(d) that it is manifestly unreasonable.

47. Mr. Parasaran submitted that in Deep Chand Vs. State of Uttar
Pradesh and Others [(1959) Suppl. 2 SCR 8] wherein the validity of certain
provisions of the Uttar Pradesh Transport Service (Development) Act, 1955,
came to be considered on the passing of the Motor Vehicles (Amendment) Act,
1956, the majority view was that the entire Act did not become wholly void
under Article 254(1) of the Constitution, but continued to be valid in so
far as it supported the Scheme already framed under the U.P. Act.

48. Mr. Parasaran contended that a standard must have general
application and inter se merit does not relate to standards, but is a
comparison of an assessment of merit among the eligible candidates.

49. Mr. Parasaran submitted that the legislative power under Entry 11
of List II stood transferred to List III only by virtue of the Forty-second
Amendment with effect from 3rd January, 1977 and the power so acquired by
virtue of the amendment, could not validate an Act enacted before the
acquisition of such power. Mr. Parasaran urged that while the Indian
Medical Council Act was enacted in 1956, Section 19A on which great
reliance was placed by Mr. Nidhesh Gupta, learned Advocate appearing for
the MCI, was brought into the Statute Book on 16th June, 1964.
Consequently the 1956 Act, as also the Regulations, are ultra vires, except
to the extent covered by Entry 66 of List I, which is confined to "co-
ordination and determination of standards".

50. Referring to the decision of this Court in State of Orissa Vs. M.A.
Tulloch & Co. [(1964) 4 SCR 461], Mr. Parasaran contended that as the
State's powers of legislation are subject to Parliamentary legislation
under Entry 66 of List I, when Parliament legislates, to that extent alone
the State is denuded of its legislative power. A denudation of the power
of the State legislature can be effected only by a plenary legislation and
not by subordinate legislation. The Regulations, which are not plenary in
character, but have the effect of denuding the power of the State
legislature, are, therefore, ultra vires.

51. Another interesting submission urged by Mr. Parasaran was that the
principle of "Rag Bag” legislation, as was explained by this Court in
Ujagar Prints etc. Vs. Union of India [(1989) 3 SCC 488], cannot be invoked
by combining the Entries in List I and List III in cases where the field of
legislation in List III is expressly made subject to an Entry in List I.
In such cases, while enacting a legislation on a subject in List III,
Parliament is also subject to the Entry in List I in the same way as the
State legislature, as the field of legislation in the Concurrent List is
the same as far as the Parliament and the State legislatures for admission
of students to professional courses, are concerned. Mr. Parasaran urged
that the decision in Preeti Srivastava's case (supra) has to be interpreted
harmoniously with the decision in M.A. Tulloch's case (supra), Ishwari
Khetan Vs. State of U.P. [(1980) 4 SCC 136] and Deep Chand's case (supra),
as otherwise the findings in Preeti Srivastava's case (supra) would be
rendered per incuriam for not taking note of the fact that the power of
Parliament under Entry 25 of List III was an after acquired power. Mr.
Parasaran emphasised the fact that the reasoning in Preeti Srivastava's
case (supra) related only to the question of the State's power to prescribe
different admission criteria to the Post-graduate courses in Engineering
and medicine and cannot be held to govern the admission of students to the
said courses. Learned counsel submitted that the decision in Preeti
Srivastava's case (supra) has to be confined only to eligibility standards
for admission and not to issues relating to admission itself. Mr.
Parasaran also pointed out that in Preeti Srivastava's case (supra), the
decision in Deep Chand's case (supra) had not been considered and the fact
that Parliament had no power to legislate with regard to matters which were
then in Entry 11 of List II had been overlooked. The Court, therefore,
erroneously proceeded on the basis of the powers given to Parliament by
virtue of Entry 25 of List III by the Forty-second Amendment. Mr.
Parasaran urged that to the extent it is inconsistent with the decision in
the T.M.A. Pai Foundation case (supra), as to the right of admission by
private institutions, the decision in Preeti Srivastava's case (supra) will
have to yield to the principles laid down by the larger Bench in the T.M.A.
Pai Foundation case (supra). Mr. Parasaran submitted that the effect of
the impugned Regulations in the context of the prevailing law is that
private institutions may establish educational institutions at huge costs
and provide for teaching and lectures, but without any right, power or
discretion to run the college, even to the extent of admitting students
therein. Mr. Parasaran contended that by the introduction of NEET the
States and Universities in States stand completely deprived of the right
to deal with admissions, which has the effect of destroying the federal
structure of the Constitution.

52. Mr. Parasaran urged that the executive power of the State, which is
co-extensive with the legislative power with regard to matters in the
Concurrent List, cannot be taken away except as expressly provided by the
Constitution or by any law made by Parliament. It was urged that the power
of subordinate legislation or statutory power conferred by a Parliamentary
legislation cannot be exercised to take away the legislative power of the
State legislature, which could only be done by plenary legislation under
Article 73 of the Constitution. Mr. Parasaran submitted that the impugned
Regulations, not being plenary legislation, are unconstitutional and ultra
vires the Constitution.

53. Mr. Parasaran submitted that the impugned Regulations provide that
if sufficient number of candidates in the respective categories fail to
secure minimum marks as prescribed in NEET, held both for Post-graduate and
graduate courses, the Central Government, in consultation with the Medical
Council of India, may at its discretion lower the minimum marks for
admission, which itself indicates that the Regulations are concerned not
with determination of standards, but with admissions.

54. Mr. Parasaran further submitted that the Scheme framed in Unni
Krishnan's case (supra) completely excluded the discretion of the
institution to admit students and the same was, therefore, overruled in the
T.M.A. Pai Foundation case as having the effect of nationalising education
in respect of important features viz. right of a private unaided
institution to give admission and to fix the fees. Mr. Parasaran submitted
that the impugned Regulations suffer from the same vice of a complete take-
over of the process of admission, which rendered the impugned Regulations
unconstitutional.

55. Mr. Parasaran further urged that minorities, whether based on
religion or language, also have a fundamental right under Article 19(1)(g),
like any other citizen, to practise any profession, or to carry on any
occupation, trade or business in the interest of the general public, but
subject to reasonable restrictions that may be imposed by the State on the
exercise of such rights. In addition, minorities have the right guaranteed
under Article 30 to establish and administer educational institutions of
their choice. Considering the right of both minority and non-minority
citizens to establish and administer educational institutions, this Court
had in the T.M.A. Pai Foundation case (supra) held that the said right
includes the right to admit students and to nominate students for admission
and even when students are required to be selected on the basis of merit,
the ultimate decision to grant admission to the students who have otherwise
qualified for the said purpose, must be left with the educational
institutions concerned. Mr. Parasaran submitted that in the T.M.A. Pai
Foundation case (supra), this Court, inter alia, observed that the fixing
of a rigid fee structure, compulsory nomination of teachers and staff for
appointment or nominating students for admission would be unreasonable
restrictions.

56. Mr. Parasaran also urged that the right of minority institutions under
Article 30 is in the national interest and as indicated in the decision in
Unni Krishnan's case (supra), the hard reality that emerges is that private
educational institutions are a necessity in the present-day circumstances.
It is not possible today without them because the Governments are in no
position to meet the demand, particularly in the sectors of medical and
technical education, which call for substantial investments and expenses.
Mr. Parasaran submitted that the impugned Regulations were not in the
national interest and would only discourage good private institutions being
established by people dedicated to the cause of providing health care to
all sections of the citizens of this country and, in particular, the
marginalized sections in the metropolitan and rural areas.

57. Mr. Parasaran then urged that 50% of the total seats available, as
per Clause VI of the Post-Graduate Medical Education Regulations, were to
be filled up by the State Governments or the Authorities appointed by them.
The remaining 50% seats are to be filled up by the concerned medical
colleges and institutions on the basis of the merit list prepared according
to the marks obtained in NEET. Mr. Parasaran submitted that there is a
similar provision in the 1997 Regulations applicable to the Graduate
M.B.B.S. course. Noticing the same, this Court in P.A. Inamdar's case
(supra) categorically indicated that nowhere in the T.M.A. Pai Foundation
case (supra), either in the majority or in the minority views, could any
justification be found for imposing seat sharing quota by the State on
unaided private professional educational institutions. Clarifying the
position this Court observed that fixation of percentage of quota are to be
read and understood as consensual arrangements which may be reached between
unaided private professional institutions and the State. Mr. Parasaran
urged that the Regulations providing for a quota of 50% are, therefore,
invalid.

58. Mr. Parasaran urged that in P.A. Inamdar's case (supra), this
Court had held that private institutions could follow an admission
procedure if the same satisfied the triple test of being fair, transparent
and non-exploitative. It is only when an institution failed the triple
test, could the State interfere and substitute its own fair and transparent
procedure, but the same cannot become a procedure by destroying the very
right of the private institutions to hold their own test in the first
instance. Mr. Parasaran urged that the purpose of a common entrance test
is to compute the equivalence between different kinds of qualifications and
to ensure that those seeking entry into a medical institute did not have to
appear for multiple tests, but it could not justify the extinguishing of
the right to admit and to reject candidates on a fair, transparent and non-
exploitative basis from out of the eligible candidates under NEET. Mr.
Parasaran reiterated that ultimately it is the institutions which must have
the right to decide the admission of candidates.

59. Mr. Parasaran submitted that in Pradeep Jain Vs. Union of India
[(1984) 3 SCC 654], this Court has held that university-wise distribution
of seats is valid. The learned Judges fully considered the mandate of
equality and pointed out the need to take into account different
considerations relating to differing levels of social, economic and
educational development of different regions, disparity in the number of
seats available in different States and the difficulties that may be faced
by students from one region, if they get a seat in another region. This
Court held that an All India Entrance Examination would only create a
mirage of equality of opportunity and would, in reality, deprive large
sections of underprivileged students from pursuing higher education. Though
attractive at first blush, an All India Entrance Examination would actually
be detrimental to the interests of the students hoping for admission to the
M.B.B.S. and Post-graduate courses.

60. Mr. Parasaran submitted that since all judgments on the subject
were by Benches which were of lesser strength as compared to the T.M.A. Pai
Foundation case (supra), all other decisions of this Court, both before and
after the decision in the T.M.A. Pai Foundation case (supra), would,
therefore, have to be read harmoniously with the principles enunciated in
the T.M.A. Pai Foundation case (supra). In case some of the cases cannot
be harmoniously read, then the principles laid down in the T.M.A. Pai
Foundation case (supra) will have primacy and will have to be followed.
Mr. Parasaran submitted that the observations as to standard and merit in
Preeti Srivsatava's case (supra) and in P.A. Inamdar's case (supra), have
to be understood as conforming to the decision in the T.M.A. Pai
Foundation case (supra). Mr. Parasaran submitted that the flourish of
language in the judgments of Benches of lesser strength cannot be read so
as to dilute the ratio of the decision of Benches of larger strength. Mr.
Parasaran urged that consequently the right to admit students by unaided
private institutions, both aided and unaided minority institutions, as part
of their right to administer the institution, as guaranteed under Articles
19(1)(g), 25, 26, 29(1) and 30 of the Constitution, cannot be taken away
even by way of plenary jurisdiction, which the impugned Regulations are
not.

61. Mr. Parasaran submitted that in the case of aided non-minority
institutions, the State may by Regulation provide for a larger role for the
State in relation to matters of admission. Mr. Parasaran urged that the
impugned Regulations being only regulatory in character, they cannot
destroy the right itself.

62. Dr. Rajiv Dhawan, learned senior counsel, who appeared on behalf of
Yenepoya University in Transferred Case Nos. 135-137 of 2012 and also for
the Karnataka Religious and Linguistic Minority Professional Colleges
Association in Transferred Case Nos. 121-122 of 2012, submitted that
although the issues involved in the said cases have already been argued in
extenso by Mr. Salve and Mr. Parasaran, as part of the main issue, it has
to be decided whether NEET violates the fundamental right guaranteed to
minorities, both religious and linguistic, to impart medical education, as
explained in the T.M.A. Pai Foundation case (supra) and other subsequent
decisions and even if found to be intra vires, is it manifestly unjust and
arbitrary? It was further urged that it would also have to be decided
whether the doctrine of severability, reading down and proportionality,
could be effected to the impugned Regulations.

63. Dr. Dhawan urged that the T.M.A. Pai Foundation case (supra)
resolved several issues where there was still some doubt on account of
decisions rendered in different cases. Dr. Dhawan urged that it was held
that the decision in the Unni Krishnan's case (supra) was wrong to the
extent that "free seats" were to go to the privileged and that education
was being nationalised which took over the autonomy of institutions. It was
also observed that the expanding needs of education entailed a combined use
of resources both of the Government and the private sector, since the
imparting of education was too large a portfolio for the Government alone
to manage.

64. Dr. Dhawan urged that the other issue of importance, which was also
decided, was the right of autonomy of institutions which were protected
under Article 30 of the Constitution, which, inter alia, included the right
to admit students.

It was also settled that unaided institutions were to have maximum
autonomy while aided institutions were to have a lesser autonomy, but not
to be treated as "departmentally run by government".

65. Dr. Dhawan submitted that the decision in the T.M.A. Pai
Foundation case (supra) also settled the issue that affiliation and
recognition has to be available to every institution that fulfills the
conditions for grant of such affiliation and recognition. Learned Senior
Counsel submitted that surrendering the total process of selection to the
State was unreasonable, as was sought to be done in the Scheme formulated
in Unni Krishnan's case (supra). The said trend of the decisions was sought
to be corrected in the T.M.A. Pai Foundation case (supra) where it was
categorically held that minority institutions had the right to "mould the
institution as they think fit", bearing in mind that "minority
institutions have a personality of their own, and in order to maintain
their atmosphere and traditions, it is but necessary that they must have a
right to choose and select the students who can be admitted in their course
of study." It is for this reason that in the St. Stephen's College case
(supra), this Court upheld the Scheme whereby a cut-off percentage was
fixed for admission after which the students were interviewed and,
thereafter, selected. It was also laid down that while the educational
institutions cannot grant admission on its whims and fancies and must
follow some identifiable or reasonable methodology of admitting students,
any scheme, rule or regulation that does not give the institution the right
to reject candidates who might otherwise be qualified according to, say
their performance in an entrance test, would be an unreasonable restriction
under Article 19(6), though appropriate guidelines/ modalities can always
be prescribed for holding the entrance test in a fair and transparent
manner.

66. Again in paragraphs 158 and 159 of the judgment in the T.M.A. Pai
Foundation case (supra), it has been very picturesquely expressed that
India is a kaleidoscope of different peoples of different cultures and that
all pieces of mosaic had to be in harmony in order to give a whole picture
of India which would otherwise be scarred. Their Lordships very poetically
indicated that each piece, like a citizen of India, plays an important part
in the making of the whole. The variations of the colours as well as
different shades of the same colour in a map are the result of these small
pieces of different shades and colours or marble, but even when one small
piece of marble is removed, the whole map would be disfigured, and the
beauty of the mosaic would be lost.

67. Referring to the separate decision rendered by Ruma Pal, J., in the
T.M.A. Pai Foundation case (supra), Dr. Dhawan submitted that the learned
Judge had also artistically distinguished Indian secularism from American
secularism by calling Indian secularism "a salad bowl" and not a "melting
pot".

68. Dr. Dhawan urged that a combined reading of the decision in Islamic
Academy's case (supra) and P.A. Inamdar's case (supra) suggests that (i) no
unaided institutions can be compelled to accept reservations made by the
State, except by voluntary agreement; and (ii) the right to (a) admit and
select students of their choice by pursuing individual or associational
tests and (b) fix fees on a non-profit basis is a right available to all
educational institutions, but the admissions were to be made on a fair,
transparent and non exploitative method, based on merit.

69. On Article 15(5) of the Constitution, Dr. Dhawan contended that
the same was included in the Constitution by the Constitution (93rd
Amendment) Act, with the object of over turning the decision in P.A.
Inamdar's case (supra) on voluntary reservations. Dr. Dhawan submitted
that the said provision would make it clear that the State reservations do
not apply to "minority institutions" enjoying the protection of Article 30
and it is on such basis that in the Society for Unaided Private Schools of
Rajasthan Vs. Union of India [(2012) 6 SCC 1], this Court held that a
minority institution could not be forced to accept the statutory
reservation also. Dr. Dhawan urged that the impact of the T.M.A. Pai
Foundation case (supra) and subsequent decisions is that all institutions,
and especially minority institutions, have the constitutional right to
select and admit students of their choice and conduct their own tests,
subject to minimum standards which could be enhanced but not lowered by the
States.

70. Dr. Dhawan also referred to the issue of equivalence between
various Boards and uniformity and convenience. Learned counsel submitted
that the distinction was recognized in the case of Rajan Purohit Vs.
Rajasthan University of Health Sciences [(2012) 10 SCC 770], wherein it was
observed that the problem of equivalence could be resolved by the college
or group of colleges, either by finding a method of equivalence to
reconcile difference of standards between various Boards, or by the college
or group of colleges evolving a Common Entrance Test to overcome the
problem of equivalence. Dr. Dhawan submitted that the said issue had been
addressed in the T.M.A. Pai Foundation (supra), which continues to hold the
field in respect of common issues. Dr. Dhawan urged that consistent with
the views expressed in the T.M.A. Pai Foundation case (supra) and the
importance of autonomy and voluntarism, the same could not be impinged upon
by nationalizing the process of admission itself for both the purposes of
eligibility and selection, unless a college failed to abide by the triple
requirements laid down in P.A. Inamdar's case (supra).

71. In regard to the decision in Lavu Narendranath's case (supra),
which had been relied upon by Mr. K. Parasaran, Dr. Dhawan contended that
the same was based upon the understanding that Entry 66 of List I had no
relation with tests for screening and selecting students prescribed by the
States or Universities for admission, but only to coordinate standards.
The scope of the said Entry did not deal with the method of admission,
which was within the constitutional powers of the State and the
Universities. Dr. Dhawan submitted that the decision rendered in Preeti
Srivastava's case (supra) also expressed similar views regarding laying
down of standards for admission into the Post-graduate medical courses,
which meant that government and universities had exclusive control over
admission tests and the criteria of selection in higher education, subject
to minimum standards laid down by the Union, unless Union legislation,
relatable to Entry 25 of List III, was passed to override the States'
endeavours in this regard.

72. Dr. Dhawan contended that the demarcation sought to be made in Lavu
Narendranath's case (supra) found favour in subsequent cases, such as in
the case of State of M.P. Vs. Nivedita Jain [(1981) 4 SCC 296], wherein a
Bench of Three Judges took the view that Entry 66 of List I of the Seventh
Schedule to the Constitution relates to "coordination and determination of
standards in institutions for higher education or research and scientific
and technical institutions". The said sentiments were reiterated by this
Court in Ajay Kumar Singh Vs. State of Bihar [(1994) 4 SCC 401]. However,
in Preeti Srivastava's case (supra), the Constitution Bench overruled the
decision in the said two cases. But, as urged by Dr. Dhawan, by holding
that Entry 66 of List I was not relatable to a screening test prescribed by
the Government or by a University for selection of students from out of a
large number for admission to any particular course of study, the
Constitution Bench also accepted that the powers of the MCI under List I,
Entry 66, did not extend to selection of students. Dr. Dhawan urged that
although Preeti Srivastava's case (supra) had been confined to its facts,
it went beyond the same on account of interpretation of the scope of List
I, Entry 66 and extending the same to the admission process, simply because
admission also related to standards and upon holding that the Union
Parliament also had the power to legislate for the MCI in the matter of
admission criteria under Entry 25, List III.

Dr. Dhawan submitted that the two aforesaid issues had the potentiality
of denuding the States and the private institutions, including minority
institutions enjoying the protection of Article 30, of their powers over
the admission process and in the bargain upset the Federal balance.

73. The validity of the impugned Regulations was also questioned by Dr.
Dhawan on the ground that Sections 19A and 20 of the 1956 Act authorises
the MCI to prescribe the minimum standards of medical education required
for granting recognised medical qualifications in India, but copies of the
draft regulations and of all subsequent amendments thereof are required to
be furnished by the Council to all State Governments and the Council,
before submitting the Regulations or any amendment thereto to the Central
Government for sanction, is required to take into consideration the
comments of any State Government received within three months from the
furnishing of copies of the said Regulations. Dr. Dhawan submitted that
such consultation was never undertaken by the MCI before the Regulations
were amended, which has rendered the said Regulations invalid and by virtue
of the decisions rendered in Lavu Narendranath's case (supra) and Preeti
Srivastava's case (supra), they cannot be reinstated by virtue of Entry 25
List III.

74. Dr. Dhawan urged that while the power of the MCI to frame
Regulations is under Section 33 of the 1956 Act, the role of the MCI is
limited to that of a recommending or a consulting body to provide standards
which are required to be maintained for the purpose of running the medical
institution, and would not include admission of students to the Under-
graduate and the Post-graduate courses. Dr. Dhawan urged that the said
powers could not have been extended to controlling admissions in the
medical colleges and medical institutions run by the State and private
authorities. Dr. Dhawan submitted that as was held by this Court in State
of Karnataka Vs. H. Ganesh Kamath [(1983) 2 SCC 402], "It is a well-settled
principle of interpretation of statutes that the conferment of rule-making
power by an Act does not enable the rule-making authority to make a rule
which travels beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto." While accepting that delegated
legislation is necessary, Dr. Dhawan urged that it must remain within the
contours of the rule or regulation-making power and the purpose for which
it is given, as was held by this Court in St. John's Teachers Training
Institute Vs. Regional Director, National Council for Teacher Education
[(2003) 3 SCC 321].

75. Dr. Dhawan also questioned the vires of the amended provisions of
the MCI Rules on the ground of unreasonableness and arbitrariness and urged
that in both cases the Court would be justified in invoking the doctrine of
proportionality, as was observed by this Court in Om Prakash Vs. State of
U.P. [(2004) 3 SCC 402]. Dr. Dhawan submitted that the only way in which
the impugned Regulations could possibly be saved is by reading them down to
bring them in conformity with the constitutional legislation and the law
laid down by the Supreme Court.

76. Dr. Dhawan urged that admission of students in all the medical
institutions in India on the basis of a single eligibility-cum-entrance
examination, was not only beyond the scope of the powers vested in the
Medical Council of India to make Regulations under Section 33 of the 1956
Act, but the same were also arbitrary and unreasonable, not having been
framed in consultation with the States and without obtaining their response
in respect thereof. More over, the same runs counter to the decision of
this Court in the T.M.A. Pai Foundation case (supra) making it clear that
the MCI was only a regulatory and/or advisory body having the power to lay
down the standards in the curricula, but not to interfere with the process
of admission, which would be the obvious fall-out of a single NEET
conducted by the MCI. Dr. Dhawan concluded on the note that uniformity for
its own sake is of little use when the end result does not achieve the
objects for which the Regulations have been introduced.

77. Appearing for Sri Ramachandra University in Transferred Case Nos.1
& 3 of 2013, Mr. Ajit Kumar Sinha, learned Senior Advocate, questioned the
vires of the impugned regulations more or less on the same grounds as
canvassed by Mr. Salve, Mr. K. Parasaran and Dr. Dhawan. Mr. Sinha also
reiterated the fact that in Preeti Srivastava's case (supra), this Court
did not notice the decision in Deep Chand's case (supra) and overlooked the
fact that Parliament had no power to legislate with regard to matters which
were then in Entry 11 of List II of the Seventh Schedule. Mr. Sinha
submitted that the decision in Preeti Srivastava's case (supra) must,
therefore, be held to be per incuriam.

78. Mr. Sinha urged that neither Section 19A nor Section 2(h)
contemplates the holding of a pre-medical entrance test for admission into
all medical institutions in the country, irrespective of who had
established such institutions and were administering the same. Mr. Sinha
urged that the impugned Regulations were liable to be struck down on such
ground as well, as it sought to unlawfully curtail the powers of the
persons running such medical institutions in the country.

79. Mr. P.P. Rao, learned Senior Advocate, who initially appeared for
the State of Andhra Pradesh in Transferred Case No.102 of 2012, submitted
that as far as the State of Andhra Pradesh is concerned, admission into
educational institutions was governed by a Presidential Order dated 10th
May, 1979, issued under Article 371D of the Constitution, inter alia,
providing for minimum educational qualifications and conditions of
eligibility for admission to the MBBS, B.Sc. Course, etc. Mr. Rao
submitted that being a special provision it prevails in the State of Andhra
Pradesh over other similar legislations.

80. Subsequently, Mr. L. Nageshwara Rao, learned Senior Advocate,
appeared for the State of Andhra Pradesh in the said Transferred Case and
also in Transferred Cases Nos.100 and 101 of 2012, 103 of 2012, Transfer
Petition (C) Nos.1671 and 1645 of 2012 and Writ Petition (C) No.464 of
2012. In addition, Mr. Nageswara Rao also appeared for the State of Tamil
Nadu in Transferred Case Nos.110 and 111 of 2012 and for the Tamil Nadu
Deemed University Association in Transferred Cases Nos. 356 and 357 of 2012
and Writ Petition (C) No.27 of 2013.

81. Continuing from where Mr. P.P. Rao left off, Mr. Nageswara Rao
submitted that in conformity with the aforesaid Presidential Order, the
State of Andhra Pradesh enacted the A.P. Educational Institutions
(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983,
defining, inter alia, "local area", "local candidate", "educational
institutions" and "relevant qualifying examinations". Mr. Rao pointed out
that Section 5 of the Act provides for reservation in non-State- Wide
Universities and Education Institutions in favour of local candidates while
Section 6 provides for reservation in State-wide Universities and State-
wide Educational Institutions for local candidates. Mr. Rao submitted that
the impugned Notification of the Medical Council of India cannot be given
effect to in view of the Presidential Order made under Article 371D of the
Constitution and the 1983 Act enacted in pursuance of the said Order.

82. Mr. Rao submitted that if the Medical Council of India could or
should hold a National Eligibility-cum-Entrance Test, it would have the
effect of denuding the State and the educational institutions of their
right to establish and administer educational institutions which enjoy the
protection of Articles 19(1)(g), 25, 26 and 30 of the Constitution.

83. With regard to the State of Tamil Nadu and the Deemed University
Association, Mr. Rao confined his submissions to Entry 25 of List III, in
relation to Entry 66 of List I. Mr. Rao reiterated the submissions made
earlier that the subject matter of Entry 66 of List I is for "coordination
and determination of standards" in institutions for higher education and
that the determination of standards also falls within Entry 25 of List III
only when coordination and determination of standards are dealt together
with the State enactment made subject to legislation under Entry 66 of List
I. Mr. Rao submitted that the denudation of the legislative power of the
State Legislature could only be by plenary legislation made under Entry 66
of List I read with Article 246 of the Constitution and not by subordinate
legislation which renders the impugned regulations ultra vires the
aforesaid provisions of the Constitution.

84. While dealing with the aforesaid questions, Mr. Rao also submitted
that the Notification contemplates the conducting of a common entrance test
for all the dental colleges throughout India, without considering the
different streams of education prevalent in India such as CBSE, ICSE, State
Boards, etc., prevailing in different States. The different standards of
education prevalent in different States had not been taken into
consideration and in such factual background, the holding of a Single
Common Entrance Test for admission to the B.D.S. and the M.D.S. courses in
all the dental colleges throughout India, would lead to violation of
Article 14 of the Constitution, since there is no intelligible object
sought to be achieved by such amended regulations.

85. Mr. Rao also questioned the provision made by the amendment dated
15th February, 2012, to the Notification dated 21st December, 2010,
reserving admission to Post-graduate Diploma Courses for Medical Officers
in the Government Service, who acquired 30% marks, as being wholly
unrelated to merit in the entrance examination and, therefore, making such
reservation arbitrary and irrational. Mr. Rao submitted that there is no
rationale in giving this benefit only to whose who are serving in
Government/public authorities with regard to service in remote/difficult
areas. Mr. Rao urged that the Government of Tamil Nadu has consistently
opposed the proposal to apply the National Eligibility-cum-Entrance Test to
determine admission to different medical colleges and institutions. Mr.
Rao submitted that when the Notification was first issued on 27th December,
2010, the Government of Tamil Nadu challenged the same by way of Writ
Petition No. 342 of 2011 and in the said Writ Petition, the High Court
stayed the operation of the Notification for UG NEET Entrance Examination
in so far as it related to the State of Tamil Nadu, and the stay continues
to be in force. Mr. Rao urged that in respect of Tamil Nadu there are many
constitutional issues, as Tamil Nadu had abolished the Common Entrance Test
based on the Tamil Nadu Admission in Professional Educational Institutions
Act, 2006, which was given effect to after receiving the President's assent
under Article 254(2) of the Constitution.

86. Mr. Rao submitted that the introduction of NEET by virtue of the
amended Regulations would run counter to the policy of the State Government
which has enacted the aforesaid Act by abolishing the practice of holding
an All India Entrance Test for admission to the professional courses in the
State. Mr. Rao submitted that the decision regarding admission to the Post-
graduate Medical and Dental Examinations would be the same as that for
admission in Under-graduate courses.

87. Mr. Rao contended that the MCI had no jurisdiction to issue the
impugned Notifications as the Council lacks the competence to amend the
State Act which had been enacted in 2006 and the validity whereof has been
upheld by the High Court. Mr. Rao repeated and reiterated the submissions
earlier made with regard to the vires of the impugned Regulations and
prayed for proper directions to be issued to allow the State of Tamil Nadu
to continue its existing system of admission to both Under-graduate and
Post-graduate courses.

88. Learned senior counsel, Mr. R. Venkataramani, appearing for the
Government of Puducherry, in T.C. No. 17 of 2013, adopted the submissions
made by Mr. Salve, Mr. Parasaran and Dr. Dhawan. Mr. Venkataramani
submitted that the Notifications, whereby the impugned Regulations were
sought to be introduced by the Medical Council of India, were beyond the
scope of the powers conferred under Section 33 of the 1956 Act, rendering
them ultra vires and invalid. Mr. Venkataramani submitted that the failure
of the MCI to consult the Government of Puducherry, as was required under
Sections 19A and 20 of the 1956 Act, before amending the Regulations and
notifying the same, rendered the same invalid. Mr. Venkataramani also
reiterated the submission made earlier that there are different streams of
education prevailing in different States, having different syllabi,
curriculum, Board of Examinations and awarding of marks and it would be
unreasonable to conduct a single examination by taking recourse to a
particular stream of education which would have the effect of depriving
effective participation of other students educated in different streams.

89. Mr. Venkataramani submitted that this Court had consistently held
that unaided educational institutions are free to devise their own
admission procedures and that the impugned Regulations were against social
justice and would impinge on the rights of unaided educational institutions
as well as the institutions enjoying the protection of Article 30 of the
Constitution in the Union Territory of Puducherry.

90. Appearing for the Karnataka Private Medical and Dental Colleges'
Association consisting of Minority and Non-Minority private unaided Medical
Colleges and educational institutions in the State of Karnataka, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that the Association had
filed several Writ Petitions before the Karnataka High Court challenging
the validity of the Notifications dated 21.12.2010 and 5.2.2012, by which
the Medical Council of India has attempted to foist a Common Entrance Test
(NEET) on all medical institutions in the country, which have been
transferred to this Court for consideration along with other similar
matters where the issues were common.

91. Mr. Venugopal reiterated that the imposition of NEET was contrary
to the decisions of this Court in the T.M.A. Pai Foundation case (supra)
and in P.A. Inamdar's case (supra). Mr. Venugopal contended that the right
of the Members of the Association to carry on the business and vocation of
imparting medical education had been upheld not only in the two aforesaid
cases, but also in the Islamic Academy of Education case (supra) and in T.
Varghese George Vs. Kora K. George [(2012) 1 SCC 369], Society for Unaided
Private Schools of Rajasthan case (supra) and Rajan Purohit's case
(supra).

Mr. Venugopal urged that the aforesaid right has been based on the
fact that a non-minority professional college has the same fundamental
right which is also possessed by a minority institution under Article
19(1)(g) of the Constitution, but is subject to reasonable restrictions
under Article 19(6) of the Constitution.

92. Mr. Venugopal also voiced the issues common to all these cases as
to whether it would be open to the Government or the MCI, a creature of the
Indian Medical Council Act, 1956, to regulate the admission of students to
all medical colleges and institutions. Mr. Venugopal urged that since the
question had been troubling the Courts in the country for a considerable
period of time, a Bench of Eleven (11) Judges was constituted to settle the
above issues and other connected issues and to put a quietus to the same.
The said Bench heard a number of matters in which the issue had been raised
and it delivered its verdict in what is referred to as the T.M.A. Pai
Foundation case (supra), answering all the questions raised. Certain
common issues contained in the judgment came up for consideration later and
were subsequently referred to a Bench of Seven Judges in P.A. Inamdar's
case (supra) where the issue was finally put to rest.

93. Mr. Venugopal firmly urged that in dealing with the issues raised
in these matters, none of the decisions rendered by this Court in the past
were required to be re-opened and the said issues will have to be
considered and decided by this Court by merely testing their validity
against the ratio of the earlier judgments, and, in particular, the
decision in the T.M.A. Pai Foundation case (supra).

94. Mr. Venugopal's next submission was with regard to the provisions
of the Karnataka Professional Educational Institutions (Regulation of
Admission and Fixation of Fee) (Special Provisions) Act, 2011, hereinafter
referred to as the "Karnataka Act of 2011", which provides for a
consensual arrangement between the State Government and the Petitioner
Association for filling up the seats in the unaided medical colleges being
taken over by the State Government to the extent agreed upon between the
parties. The said Act also regulates the fees to be charged in these
private institutions. Mr. Venugopal urged that the said Act still holds the
field, since its validity has not been challenged. As a result, the
impugned Regulation, now made by the Medical Council of India, purportedly
under Section 33 of the 1956 Act, cannot prevail over the State law. Mr.
Venugopal submitted that the impugned Regulations are, therefore, of no
effect in the State of Karnataka.

95. Mr. Venugopal also urged that having regard to the decision of this
Court in the T.M.A. Pai Foundation case (supra) and the other decisions
referred to hereinabove, the impugned Notifications imposing NEET as a
special vehicle for admission into medical colleges denuding the State and
the private medical institutions from regulating their own procedure, must
be held to be ultra vires Section 33 of the 1956 Act.

96. Mr. Venugopal reiterated the submissions made on behalf of the other
Petitioners and concluded on the observations made in paragraph 3 of the
decision of this Court in State of Karnataka Vs. Dr. T.M.A. Pai Foundation
& Ors. [(2003) 6 SCC 790], which made it clear that all statutory
enactments, orders, schemes, regulations would have to be brought in
conformity with the decision of the Constitution Bench in the T.M.A. Pai
Foundation case (supra), decided on 31.10.2002. Mr. Venugopal submitted
that it, therefore, follows that the Regulations of 2000, 2010 and 2012, to
the extent that they are inconsistent with the decision in the T.M.A. Pai
Foundation case (supra), would be void and would have to be struck down.

97. Mr. G.S. Kannur, learned Advocate, who appeared in support of the
application for intervention, being I.A. No.3, in Transferred Case No.3 of
2013, repeated the submissions made by Mr. K. Parasaran, Dr. Dhawan and Mr.
L. Nageshwar Rao, that the existence of various Boards in a particular
State is bound to cause inequality and discrimination if the Common
Entrance Test was introduced as the only criteria for admission into any
medical college or institution in the country.

98. Appearing for the Christian Medical College Ludhiana Society and the
medical institutions being run by it, Mr. V. Giri, learned Senior Advocate,
reiterated the submissions made by Mr. Harish Salve, on behalf of the
Christian Medical College Vellore Association, but added a new dimension to
the submissions made by submitting that the impugned Regulations had been
issued by the Board of Governors, which had been in office pursuant to the
supersession of the Medical Council, under Section 3A of the 1956 Act. Mr.
Giri submitted that the Board of Governors, which was only an ad hoc body
brought into existence to exercise the powers and perform the functions of
the Council under the Act pending its reconstitution, was not competent as
an Ad hoc body to exercise the delegated legislative power under Section 33
of the said Act and to discharge the functions of the Medical Council, as
contemplated under Section 3 of the 1956 Act.

99. Mr. Giri urged that though Section 33 of the 1956 Act confers power on
the Medical Council of India to make Regulations generally for carrying out
the purposes of the Act, it also enumerates the different functions of the
Council and its powers and duties which are referable to the substantial
provisions of the Act itself. Learned counsel pointed out that clause (l)
deals with the conduct of professional examinations, qualification of
examiners and conditions of admission to such examinations. Mr. Giri urged
that Sections 16 to 18 of the above Act deals with the substantive power
available to the Medical Council of India to require of every University or
Medical Institution information as to the courses of study and examinations
and if necessary, to take steps for inspecting the same. Accordingly, the
Regulation-making power contemplated under Section 33 of the 1956 Act is
referable to the substantive functions to be discharged by the Council
under Sections 16 to 18 of the Act. Mr. Giri contended that no provision
in the Act contemplates that the Council may actually conduct the
examinations. Relying on the views expressed in the T.M.A. Pai Foundation
case (supra), Mr. Giri urged that the impugned Regulations were in direct
violation of the rights guaranteed to a minority educational institutions
under Article 19(1)(g) read with Articles 25, 26, 29(1) and 30 of the
Constitution.

100. Mr. Giri submitted that the Petitioner is a minority educational
institution admitting students from the minority community in a fair,
transparent and non-exploitative manner, based on inter se merit, and
cannot be subjected to the NEET for the purposes of admission to the Under-
graduate MBBS and Post-graduate degrees in medicine. Reemphasising Mr.
Salve's submissions, Mr. Giri submitted that the activity of running
medical, allied health sciences and nursing courses, in order to ensure
constant supply of doctors and other para-medical staff to the hospitals
and other facilities engaged in the healing of the sick, are acts done in
furtherance of the Petitioner's religious faith, which stand protected
under Articles 25, 26 and 30 of the Constitution.

101. Mr. Giri submitted that the Government of Punjab, in its Department
of Medical Education and Research, vide its Notification No.
5/7/07.3HBITI/2457 dated 21.05.2007, for admission to MBBS, BDS, BAMS and
BHMS courses and vide Notification No. 5/8/2007-3HB3/1334 dated 21.03.2007,
for admission in Post-graduate Degree/ Diploma courses in the State of
Punjab, excluded the Christian Medical College and Christian Dental
College, Ludhiana, from the admission process conducted by Baba Farid
University of Health Sciences, Faridkot, on behalf of the State Government
for various Under-graduate and Post-graduate Medical Degree courses. Mr.
Giri submitted that the impugned Regulations, being ultra vires the
provisions of Articles 19(1)(g) and Articles 25, 26, 29(1) and 30 of the
Constitution, having been promulgated by an ad hoc body, were liable to be
struck down.

102. Mr. K. Radhakrishnan, learned Senior Advocate, appeared for the Annoor
Dental College and Hospital, situated in the State of Kerala, adopted the
submissions made by the other counsel and urged that the submissions
advanced, as far as medical colleges and institutions are concerned, apply
equally to dental colleges, which are under the authority of the Dental
Council of India and is governed by the Dentists Act, 1948. Mr.
Radhakrishnan submitted that the impugned Regulations were also ultra vires
the Dentists Act, 1948, Section 20 whereof empowers the Dental Council of
India to prescribe conditions for admission to the courses for training of
dentists and dental hygienists, but does not authorize the Dental Council
of India or any agency appointed by it to conduct admission tests for
selection of students for the BDS and MDS courses. Mr. Radhakrishnan also
urged that the impugned Regulations which attempted to enforce NEET, were
ultra vires the provisions of the Dentists Act, 1948, as also the relevant
provisions of the Constitution and are, therefore, liable to be struck
down.

103. Transferred Case No.8 of 2013 which arises out of Writ Petition
No.5939 (M/S) of 2012, was filed by the U.P. Unaided Medical Colleges
Welfare Association and Others. Appearing for the said Association, Mr.
Guru Krishnakumar, learned Senior Advocate, while adopting the submissions
already made, reiterated that the functional autonomy of institutes is an
integral right under Article 19(1)(g) of the Constitution, as clearly set
out in the decision rendered in the T.M.A. Pai Foundation case (supra).
Learned Senior counsel submitted that the fundamental right guaranteed
under Article 19(1)(g) includes the right to admit students in the
privately run professional colleges, including medical, dental and
engineering colleges, and viewed from any angle, the impugned Regulations
were impracticable, besides causing violence to Article 19(1)(g) of the
Constitution. Mr. Guru Krishnakumar submitted that the impugned Regulations
and the Notifications promulgating the same, were liable to be struck down.

104. Mr. C.S.N. Mohan Rao, learned Advocate, who appeared for the Writ
Petitioner, Vigyan Bharti Charitable Trust in Writ Petition (C) No.15 of
2013, submitted that the Petitioner was a registered charitable trust
running two medical colleges and a dental college in the State of Odisha.
The various submissions made by Mr. Rao were a repetition of the
submissions already made by Mr. Harish Salve and others. Mr. Rao, however,
referred to a Two-Judge Bench decision of this Court in Dr. Dinesh Kumar
Vs. Motilal Nehru Medical Colleges, Allahabad & Ors. [(1985) 3 SCC 727],
wherein, while considering the question of admission to medical colleges
and the All India Entrance Examination, it was, inter alia, held that it
should be left to the different States to either adopt or reject the
National Eligibility Entrance Test proposed to be conducted by the Medical
Council of India. Mr. Rao submitted that as stated by Justice V. Krishna
Iyer in the case of Jagdish Sharan & Ors. Vs. Union of India & Ors. [(1980)
2 SCC 768], merit cannot be measured in terms of marks alone, but human
sympathies are equally important. The heart is as much a factor as the
head in assessing the social value of a member of the medical profession.

105. In Writ Petition (Civil) No.535 of 2012, Saveetha Institute of
Medical and Technical Sciences, a Deemed University, declared as such under
Section 3 of the University Grants Commission Act, 1956, has questioned the
impugned Notifications and the amended Clauses of the MCI Regulations on
the same grounds as in the earlier cases. Mr. Jayanth Muth Raj, learned
Advocate appearing for the Petitioner, repeated and reiterated the
submissions made earlier in regard to the law as laid down in the T.M.A.
Pai Foundation case (supra) and in P.A. Inamdar's case (supra) and urged
that the impugned Notifications had been issued in violation of the
decisions rendered in the said two cases and in other subsequent cases
indicating that private institutions had the right to evaluate their
admission procedure based on principles of fairness, transparency and non-
exploitation. Mr. Muth Raj submitted that in the absence of any
consensual arrangement in the case of the Petitioner, the MCI or the Dental
Council of India could not compel the Petitioner to accept the National
Eligibility-cum-Entrance Test on the basis of the impugned Regulations.
Learned counsel submitted that to that extent, the impugned amended
Regulations and the Notifications issued to enforce the same were ultra
vires Articles 14, 19(1)(g) and 26 of the Constitution and were liable to
be struck down.

106. Writ Petition (Civil) No.495 of 2012 and Transfered Case No.108 of
2012 involve common questions regarding the conducting of NEET in English
and Hindi in the State of Gujarat, where the medium of instructions under
the Gujarat Board of Secondary Education is Gujarati. The submissions made
both on the behalf of the Petitioners and the State of Gujarat were ad idem
to the extent that Entry 66 of List I restricts the legislative powers of
the Central Government to "co-ordination and determination of standards of
education". Thus, as long as the Common Entrance Examination held by the
State or the other private institutions did not impinge upon the standards
laid down by Parliament, it is the State which can, in terms of Entry 25 of
List III, prescribe such a Common Entrance Test in the absence of any
Central Legislation relatable to Entry 25 of List III. Mr. K.K. Trivedi,
learned Advocate, appearing for the Petitioners submitted that the impugned
Regulations and Notifications were, ultra vires Section 33 of the 1956 Act,
since prescribing a Common Entrance Test is not one of the stated purposes
of the Act and were, therefore, liable to be struck down.

107. Appearing for the Medical Council of India, Mr. Nidhesh Gupta,
learned Senior Advocate, submitted that the Medical Council of India Act,
1956, is traceable to Entry 66 of List I, as was held in MCI Vs. State of
Karnataka [(1998) 6 SCC 131]. In paragraph 24 of the said decision it was
categorically indicated that the Indian Medical Council Act being relatable
to Entry 66 of List I, prevails over any State enactment to the extent the
State enactment is repugnant to the provisions of the Act, even though the
State Acts may be relatable to Entry 25 or 26 of the Concurrent List.

108. Mr. Gupta submitted that Entry 66 in List I empowers the Central
Government to enact laws for coordination and determination of standards in
institutions for higher education or research and scientific and technical
institutions. Learned counsel also urged that Section 19-A (1) of the
Indian Medical Council Act, 1956, provides that the Council may prescribe
the minimum standards of medical education required for granting recognised
medical qualifications (other than postgraduate medical qualifications) by
universities or medical institutions in India. Mr. Gupta submitted that
Section 20 relating to post-graduate medical education could also prescribe
similar standards of Postgraduate Medical Education for the guidance of
Universities. Mr. Gupta submitted that Section 33 of the 1956 Act,
empowers the Medical Council of India, with the previous approval of the
Central Government to make Regulations, and provides that the Council may
make Regulations generally to carry out the purposes of the Act, and,
without prejudice to the generality of this power, such Regulations may
provide for "any other matter for which under the Act provision may be made
by Regulations”. Mr. Gupta urged that it is the accepted position that
standards of education are to be determined by the MCI. The questions
which have been posed on behalf of the Petitioners in these various
matters, challenging the vires of the Regulations, are whether the power of
determination of standards of education includes the power to regulate the
admission process and determine the admission criteria, and whether the
determination of standards of education also include the power to conduct
the examinations.

109. Responding to the two questions, Mr. Gupta submitted that once
the 1997 Regulations were accepted by the various Medical Colleges and
Institutions as being in accordance with law and the powers vested under
Entry 66 of List I, the first issue stands conceded, since the 1997
Regulations prescribing the eligibility criteria for admission in medical
courses had been accepted and acted upon by the medical institutions. In
addition to the above, Mr. Gupta contended that Section 33(l) of the 1956
Act vested the MCI with powers to frame regulations to provide for the
conduct of professional examinations, qualifications of examiners and the
conditions of admission to such examinations. Mr. Gupta submitted that,
under the said provision, it can be said that the MCI was within its rights
to conduct the NEET and stipulate the qualifications of examiners and the
conditions of admission to such examinations.

110. Mr. Gupta submitted that it would be incorrect to say that standards
of education can have no direct impact on norms of admission. Learned
senior counsel pointed out that in paragraph 36 of the judgment in Preeti
Srivastava's case (supra), it had been indicated that the standards of
education are impacted by the caliber of students admitted to the
institution and that the process of selection and the criteria for
selection of candidates has an impact on the standards of medical
education. Mr. Gupta submitted that the views expressed by this Court in
the decisions rendered in Nivedita Jain's case (supra) and that of Ajay
Kumar Singh's case (supra), which had taken a contrary view, were overruled
in Preeti Srivastava's case (supra). Mr. Gupta also relied on the
decision of this Court in Bharati Vidyapeeth (Deemed University) and Ors.
Vs. State of Maharashtra & Anr. [(2004) 11 SCC 755], wherein while
following the decision in Preeti Srivastava's case (supra), it was
reiterated that prescribing standards would include the process of
admission. Mr. Gupta submitted that the said decision had, thereafter,
been followed in Prof. Yashpal Vs. State of Chhattisgarh [(2005) 5 SCC
420]; State of M.P. Vs. Gopal D. Teerthani [(2003) 7 SCC 83], Harish Verma
Vs. Rajesh Srivastava [(2003) 8 SCC 69] and in Medical Council of India Vs.
Rama Medical College Hospital & Research Centre [(2012) 8 SCC 80]. Learned
senior counsel urged that the expression “standard” used in Entry 66 of
List I has been given a very wide meaning by this Court in Gujarat
University, Ahemadabad Vs. Krishna Ranganath Mudholkar [(1963) Supp. 1 SCR
112] and accordingly anything concerned with standards of education would
be included within Entry 66 of List I and would be deemed to be excluded
from other Lists. Mr. Gupta also placed reliance on MCI Vs. State of
Karnataka [1998 (6) SCC 131], wherein it was held that it was settled law
that while considering the amplitude of the entries in Schedule VII of the
Constitution, the widest amplitude is to be given to the language of such
Entries. Mr. Gupta urged that without prejudice to the contention that
Entry 66 of List I directly permits the admission process and the
examination itself being regulated and/or conducted by the MCI, even if the
Entries did not directly so permit, the MCI was entitled to regulate the
said functions since even matters which are not directly covered by the
Entries, but are ancillary thereto, can be regulated. Mr. Gupta submitted
that in Krishna Ranganath Mudholkar's case (supra), it was held that power
to legislate on a subject should normally be held to extend to all
ancillary or subsidiary matters, which can fairly and reasonably be said to
be comprehended in that subject. Reference was also made to the decisions
of this Court in Harakchand Ratanchand Banthia Vs. Union of India [(1969) 2
SCC 166]; ITC Vs. Agricultural Produce Market Committee [(2002) 9 SCC 232];
and Banarasi Dass Vs. WTO [1965 (2) SCR 355], wherein the same principle
has been reiterated. Mr. Gupta submitted that Regulations validly made
become a part of the Statute itself, as was indicated in State of Punjab
Vs. Devans Modern Breweries Ltd. [(2004) 11 SCC 26]; Annamalai University
Vs. Information & Tourism Department [(2009) 4 SCC 590] U.P. Power
Corporation Vs. NTPC Ltd. [(2009) 6 SCC 235] and the St. Johns Teachers
Training Institute case (supra). According to Mr. Gupta, the NEET
Regulations having been validly made and the requisite legislation being
available in Sections 19A, 20 and 23 of the Indian Medical Council Act,
1956, the NEET Regulations must be deemed to be part of the Act itself.

111. Regarding the MCI's power to conduct the NEET, Mr. Gupta urged
that once it had been held in Preeti Srivastava's case (supra) that the
standard of education is impacted by the process of selection, the power to
determine the said process of selection is implicit. In fact, Mr. Gupta
submitted that the aforesaid question stands concluded by the judgment of
this Court in Veterinary Council of India Vs. Indian Council of
Agricultural Research [(2000) 1 SCC 750], wherein, while considering the
provisions of the Veterinary Council of India Act which were materially the
same as those of the Indian Medical Council Act, it was held relying on the
judgment in Preeti Srivastava's case (supra) that the Veterinary Council of
India was competent to and had the requisite powers to hold the All India
Entrance Examination.

112. Mr. Gupta urged that this Court had repeatedly emphasised how
profiteering and capitation fee and other malpractices have entered the
field of medical admissions, which adversely affect the standards of
education in the country. Such malpractices strike at the core of the
admission process and if allowed to continue, the admission process will be
reduced to a farce. It was to put an end to such malpractices that the MCI
introduced NEET and was within its powers to do so.

113. On the necessity of furnishing draft Regulations to the State
Governments, as stipulated under Section 19A(2) and for Committees under
Section 20, Mr. Gupta urged that the same was merely directory and not
mandatory. Referring to the decision of this Court in State of U.P. Vs.
Manbodhan Lal Srivastava [1958 SCR 533], learned counsel submitted that
this Court while considering the provisions of Article 320(3) of the
Constitution, which provides for consultation with the Union Public Service
Commission or the State Public Service Commission, held that the said
requirement in the Constitution was merely directory and not mandatory.
Drawing a parallel to the facts of the said case with the facts of the
present set of cases, Mr. Gupta urged that the provisions of Section 19A(2)
must be held to be directory and not mandatory and its non-compliance could
not adversely affect the amended Regulations and the Notifications issued
in pursuance thereof.

Mr. Gupta submitted that before amending the Regulations, detailed
interaction had been undertaken with the State Governments at various
stages. Learned counsel submitted that as far back as on 14.9.2009,
5.2.2010 and 4.8.2010, letters had been written to various State
Governments and the responses received were considered. There were joint
meetings between the various State representatives and the other concerned
parties and the concerns of most of the State Governments were fully
addressed.

114. On the question of federalism and the powers of the State under
Article 254 of the Constitution, Mr. Gupta contended that since the MCI
derived its authority from Entry 66 of List I, it is a subject which is
exclusively within the domain of the Union. Mr. Gupta submitted that all
the arguments advanced on behalf of the Petitioners were on the erroneous
assumption that the Regulations had been made under Entry 25 of List III.
Mr. Gupta pointed out that in paragraph 52 of the judgment in Preeti
Srivastava's case (supra), this Court had held that the impugned
Regulations had been framed under Entry 66, List I and that the Regulations
framed by the MCI are binding and the States cannot in exercise of powers
under Entry 25 of List III make Rules and Regulations which are in conflict
with or adversely impinge upon the Regulations framed by the MCI for Post-
graduate medical education. Mr. Gupta urged that since the standards laid
down by the MCI are in exercise of powers conferred by Entry 66 of List I,
the same would prevail over all State laws on the same subject.

115. Mr. Gupta also urged that the ratio of Lavu Narendranath's case
(supra) had been misunderstood on behalf of the Petitioners and the
arguments raised on behalf of Yenepoya University was based on the ratio
that Entry 66 of List I is not relatable to a screening test prescribed by
the Government or by a University for selection of students from out of a
large number applying for admission to a particular course of study. Mr.
Gupta pointed out that the ratio of the decision in Preeti Srivastava's
case (supra) and in Lavu Narendranath's case (supra) show that the
Government which ran the colleges had the right to make a selection out of
a large number of candidates and for this purpose they could prescribe a
test of their own which was not contrary to any law. It was urged that in
the said case, there was no Central legislation occupying the field. Mr.
Gupta urged that NEET is not a mere screening test, but an eligibility test
which forms the basis of selection. Mr. Gupta submitted that any test
which might be prescribed by a State Government would be against the law in
the present case, being in the teeth of the NEET Regulations.

116. With regard to the submissions made on behalf of the minority
institutions enjoying the protection of Article 30, Mr. Gupta contended
that reliance placed on behalf of CMC, Vellore, on the judgment in the
Ahmedabad St. Xavier's College Society Vs. State of Gujarat [(1974) 1 SCC
717], was entirely misplaced, and, in fact, the said judgment supports a
test such as NEET. Mr. Gupta submitted that on a proper analysis of the
said judgment and in particular the judgment delivered by Chief Justice
Ray, (as His Lordship then was), it would be evident that even in the said
judgment the right of religious and linguistic minorities to establish and
administer educational institutions of the choice of the minorities had
been duly recognised. Chief Justice Ray also observed that if the scope of
Article 30(1) is made an extension of the right under Article 29(1) as a
right to establish and administer educational institutions for giving
religious instruction or for imparting education in their religious
teachings or tenets, the fundamental right of minorities to establish and
administer educational institutions of their choice would be taken away.
It was also observed in the judgment that every section of the public, the
majority as well as minority, has rights in respect of religion as
contemplated in Articles 25 and 26 of the Constitution. Mr. Gupta urged
that the whole object of conferring the right on minorities under Article
30 is to ensure that there would be equality between the majority and the
minority. It was urged that it is for the aforesaid reason that whenever
the majority community conferred upon itself a special power to overrule or
interfere with the administration and management of the minority
institutions, the Supreme Court struck down the said power. Mr. Gupta
submitted that whenever an attempt was made to interfere with the rights
guaranteed to religious and linguistic minorities, as in the St. Xavier's
case (supra), the same being arbitrary and unreasonable, was struck down.
Reliance was also placed on the decision in the case of Rev. Father W.
Proost, and in the case of Rt. Rev. Bishop S.K. Patro, where the impugned
order of the Secretary to the Government dated 22nd May, 1967, set aside
the order passed by the President of the Board of Secondary Education. Mr.
Gupta urged that in the very initial stage of judicial consideration in
these matters, in State of Kerala Vs. Very Rev. Mother Provincial [(1970)
2 SCC 417], the impugned provisions required nominees of the University and
the Government to be included in the Governing Body. The same being a
direct infringement on the rights of the minorities to establish and
administer institutions of their choice, the impugned provision was struck
down.

117. Mr. Gupta submitted that in each of the aforesaid cases, an
attempt was made by the majority to take over the management and to impose
its substantive views. Learned counsel submitted that NEET does nothing of
the sort, since it did not infringe any of the rights guaranteed either
under Article 19(1)(g) or Articles 25, 26, 29 and 30 of the Constitution.
Mr. Gupta urged that the various questions raised on behalf of the
Petitioners herein have been fully answered in P.A. Inamdar's case (supra).
They also meet the tests prescribed in the St. Xavier's case (supra) as
well. Mr. Gupta urged that Justice Khanna in paragraph 105 of the judgment
observed that Regulations which are calculated to safeguard the interests
of teachers would result in security of tenure and would attract competent
persons for the posts of teachers and are, therefore, in the interest of
minority educational institutions, and would not violate Article 30(1) of
the Constitution. Mr. Gupta urged that by the same reasoning, Regulations
which are in the interest of the students and will attract the most
meritorious students, are necessarily in the interest of the minority
institutions and do not, therefore, violate their rights under Article
30(1) of the Constitution.

118. Mr. Gupta submitted that in the St. Xavier's case (supra), Justice
Khanna had indicated in his separate judgment the dual tests of
reasonableness and of making the institution an effective vehicle of
education for the minority community and others who resort to it. Mr.
Gupta submitted that NEET meets the test of reasonableness and fully
assists in making the institution an effective vehicle of education, since
it ensures admission for the most meritorious students and also negates any
possibility of admissions being made for reasons other than merit within
each category. Mr. Gupta submitted that, in fact, in paragraph 92 of the
judgment, Justice Khanna had observed that "a regulation which is designed
to prevent maladministration of an educational institution cannot be said
to offend Clause (1) of Article 30". Mr. Gupta re-emphasized that NEET
was not in any way against the rights vested in educational institutions,
being run by the minorities, but it was in the interest of such minorities
to have their most meritorious students in the best institutes.

119. Dealing with the various tests referred to on behalf of the
Petitioners in the different cases, Mr. Gupta submitted that the ratio in
the T.M.A. Pai Foundation case (supra) also supports the NEET Regulations.
Mr. Gupta contended that the right of minority institutions to admit
students was not being denied, inasmuch as, the concerned institutes could
admit students of their own community, but from the list of successful
candidates who appear for the NEET. Mr. Gupta submitted that in the
aforesaid judgment it was also observed that merit is usually determined by
a common entrance test conducted by the institution or in case of
professional colleges, by government agencies. Mr. Gupta submitted that it
had also been emphasized that Regulations in national interest are to apply
to all educational institutions, whether run by a minority or non-
minorities and that an exception to the right under Article 30 is the power
of the State to regulate education, educational standards and allied
matters. Mr. Gupta submitted that in the T.M.A. Pai Foundation case
(supra), it had been indicated that regulatory measures for ensuring
educational standards and maintaining excellence thereof are no anathema to
the protection conferred by Article 30(1).

120. Mr. Gupta submitted that the admission process followed by CMC,
Vellore, failed to meet any of the tests relating to transparency and
fairness and lack of arbitrariness. Mr. Gupta pointed out that, in the
case of a candidate for admission in the Under-graduate or Post-graduate
courses in the said institution, a candidate cannot be selected unless he
is sponsored by the Diocese and the competition is limited to the
particular candidates, who had been sponsored by a particular Diocese,
which Mr. Gupta submitted is violative of Article 14 of the Constitution
and also the principles of merit.

Mr. Gupta urged that as far as the application of Articles 25 and
26 of the Constitution in matters relating to establishment and
administration of educational institutions is concerned, the same has to be
read in relation to matters of religion and with respect to religious
practices which form an essential and integral part of religion. Learned
counsel submitted that the rights protected under Articles 25 and 26 are
available to individuals and not to organized bodies, such as CMC, Vellore,
or other minority run institutions, as had been held by this Court in
Sardar Vs. State of Bombay [1962 Supp. (2) SCR 496], wherein it was
observed that the right guaranteed by Article 25 is an individual right.
The said view was subsequently endorsed in Sri Sri Sri Lakshmana Yatendrulu
Vs. State of A.P. [(196) 8 SCC 705]. Mr. Gupta submitted that, having
regard to the above, the various associations and minorities, which had
challenged the impugned Regulations, were not entitled to do so and their
applications were liable to be dismissed.

121. Mr. Gupta submitted that the impugned Regulations would apply
equally to "Deemed Universities", declared to be so under Section 3 of the
University Grants Commission Act, 1956, hereinafter referred to as the "UGC
Act", since it cannot be argued that the Deemed University will not follow
any rules at all. Mr. Gupta pointed out that in the Bharati Vidyapeeth's
case (supra), this Court had held that the standards prescribed by
statutory authorities, such as the Medical Council of India, governed by
Entry 66 of List I of the Seventh Schedule to the Constitution, must be
applied, particularly when the Deemed Universities seek recognition of the
medical courses taught by them, under the provisions of the 1956 Act. Mr.
Gupta submitted that the Deemed Universities cannot take the benefit of
recognition under the 1956 Act, but refuse to follow the norms prescribed
therein.

Mr. Gupta pointed out that it had inter alia been indicated in
paragraph 24 of the affidavit filed on behalf of the Commission that the
Commission was also of the view that all the constituent medical colleges
of "Deemed Universities" may be asked to comply with the Notification dated
21.12.2010, issued by the Medical Council of India, in view of Article 6.1
in the UGC (Institutions Deemed to be Universities) Regulations, 2010,
which states that:
"Admission of students to all deemed to be universities, public
or private, shall be made strictly on merit based on an All
India examination as prescribed by the Regulations and in
consistence with the national policy in this behalf, from time
to time."

122. On the percentile system of grading, which had been touched upon
by Dr. Dhawan, it was submitted that the said system of ranking/ grading
was being followed internationally in many of the premier institutions
around the globe.

123. Adverting to the submissions made by Mr. L. Nageshwara Rao, on
behalf of the States of Andhra Pradesh and Tamil Nadu, regarding the
enactment of the A.P. Educational Institutions (Regulation of Admissions
and Prohibition of Capitation Fee) Act, 1983, on the basis of the
Presidential Order dated 10th May, 1979, made under Article 371-D of the
Constitution, Mr. Gupta submitted that neither the said Article nor the
Presidential Order was concerned with standards of education. Mr. Gupta
urged that a reading of Sub-clause (1) of Article 371-D of the Constitution
makes it clear that it confers powers on the President to make an Order
with regard to the State of Andhra Pradesh "for equitable opportunities and
facilities for the people belonging to different parts of the State".
Mr. Gupta urged that the State legislation providing for State level
entrance examination is not relatable to Article 371-D and, as such, the
State legislation had to yield to the Union legislation, which Mr. Gupta
urged had been the consistent view taken in Govt. of A.P. Vs. Mohd. Ghouse
Mohinuddin [(2001) 8 SCC 416]; V. Jaganadha Rao Vs. State of A.P. [(2001)
10 SCC 401]; and NTR University of Health Sciences Vs. G. Babu Rajendra
Prasad [(2003) 5 SCC 350].

124. As to the weightage of marks being given up to a maximum of 30%,
to government servants serving in remote areas, Mr. Gupta said that the
same had been upheld by this Court in State of M.P. Vs. Gopal D. Tirthani
[(2003) 7 SCC 83].

125. Replying to the submissions made on behalf of some of the
other Petitioners and, in particular, on behalf of the Christian Medical
College, Ludhiana, in Writ Petition No. 20 of 2012, Mr. Gupta urged that
Section 3B of the 1956 Act empowers the Board of Governors to exercise the
powers and discharge the functions of the Council and, accordingly, even if
the appointment of the members of the Board of Governors was ad hoc in
nature, it made no difference to their working and discharging the
functions of the Council.

126. Mr. Gupta urged that private bodies and religious and
linguistic minorities have a fundamental right to establish and administer
medical institutions or other institutions of their choice under Articles
19(1)(g) and 30 of the Constitution, but such right was not unfettered and
did not include the right to maladminister the respective institutions.
Learned counsel urged that in the name of protection under Articles 25, 26
and 30 of the Constitution, an institution run by a religious or linguistic
minority did not have the right to lower the standards of education set by
the Medical Council of India or to recruit staff, who were not properly
qualified, or to deprive the students of the necessary infrastructure to
run such courses. Accordingly, the MCI was within its jurisdiction to lay
down proper standards and to also conduct an All-India Entrance Examination
to eliminate any possibility of malpractice. Mr. Gupta urged that the
several Writ Petitions filed on behalf of both States and private
individuals and religious and linguistic minorities are, therefore, liable
to be dismissed with appropriate costs.

127. Mr. Sidharth Luthra, learned Additional Solicitor General,
appearing for the Union of India, in the Ministry of Health and Family
Welfare, at the very outset, submitted that the Union of India fully
supported the stand of the MCI. Mr. Luthra urged that the impugned
Notifications amending the Regulations in regard to the introduction of
NEET for both graduate medical education and post-graduate medical
education had been validly made under powers conferred upon the MCI under
Section 33 of the 1956 Act, upon obtaining the previous sanction of the
Central Government, as required under the said Section. Mr. Luthra
submitted that there was a definite rationale behind holding a single
examination. The learned ASG urged that the NEET Regulations had been
framed by the MCI, after due deliberations with the Central Government and,
broadly speaking, the logic behind enacting the said Regulations were to
introduce uniformity of standards, merit and transparency and to lessen the
hardship of aspiring students. Mr. Luthra urged that the NEET and the
amending Regulations, which had been impugned, were not ultra vires since
the 1956 Act is relatable to Entry 66 of the Union List and prevails over
any State enactment, even though the State Acts may be relatable to Entry
25 or 26 of the Concurrent List, to the extent the provisions of the State
Acts were repugnant to the Central legislation. Mr. Luthra urged that
Regulations framed under Section 33 of the 1956 Act, with the previous
sanction of the Central Government, have statutory status and the said
Regulations were framed to carry out the purposes of the said Act.

128. Mr. Luthra repeated Mr. Gupta's submission that the rights of the
minorities preserved under Article 30 were not adversely affected or
prejudiced in any way, as had been explained in P.A. Inamdar's case
(supra). The learned ASG submitted that NEET had been introduced in the
national interest to ensure that meritorious students did not suffer the
problem of appearing in multiple examinations conducted by various agencies
which also resulted in different standards for admission, which had the
effect of compromising merit. Mr. Luthra urged that the earlier system of
multiple examinations was neither in the national interest nor in the
interest of maintaining the standards of medical education, nor did it
serve the interest of poor/middle class students who had to buy forms of
several examinations and travel across the country to appear in multiple
examinations. It was urged that any Regulation framed in the national
interest must necessarily apply to all educational institutions, whether
run by the majority or the minority groups. It was also urged that such a
Regulation must necessarily be read into Article 30 of the Constitution.
Mr. Luthra referred to the views expressed in that behalf in Paragraph 107
of the judgment in the T.M.A. Pai Foundation case (supra). The learned ASG
submitted that the amended Regulations do not restrict or in any manner
take away the rights of the minority institutions under Articles 19(1)(g)
and 30 of the Constitution to admit students from their community.

129. Mr. Luthra reiterated the submissions made by Mr. Gupta that the
right conferred on the religious and linguistic minorities to administer
educational institutions of their choice, is not an absolute right and may
be regulated in certain special circumstances.

130. The learned ASG also urged that the merit list to be
published on the results of the NEET, will contain all the details of each
candidate, including the State, category, minority status, caste and tribal
status in front of his/her name and rank so that there would be no
hindrance whatsoever in implementing the constitutional principles of
reservation and minority rights and merit. Furthermore, the transparency in
the process of admission would also be fully achieved.

131. On the question of different mediums of instruction in
schools throughout the country, Mr. Luthra submitted that the NEET - UG
would be conducted in multiple languages, such as English, Hindi, Telegu,
Assamese, Gujarati, Marathi, Tamil and Bengali, and hence, the submissions
made that NEET was not being conducted in the regional languages, is
misleading.

132. One other important aspect touched upon by Mr. Luthra is
with regard to the syllabus for NEET, which would be based on the CBSE
syllabus. The learned ASG submitted that the syllabus for NEET had been
prepared by the MCI, after obtaining feedback from different stake-holders,
including the National Board and State Boards, across the country. Mr.
Luthra submitted that the Regulations have been amended to implement the
provisions of the Act so as to meet the difficulties, which had been raised
by some of the States. The learned ASG submitted that the NEET Regulations
were clearly within the competence and jurisdiction of the Medical Council
in the discharge of its obligations to carry out the purposes of the Act,
as had been enjoined in the different decisions of this Court and, in
particular, in Preeti Srivastava's case (supra). The learned ASG urged that
the objections which had been sought to be taken on behalf of the various
Petitioners, including the State Governments, with regard to the holding of
the NEET examination, were wholly misconceived and were liable to be
rejected.

133. Various issues of singular importance, some of which have been
considered earlier, arise out of the submissions made on behalf of the
respective parties questioning the vires of the amended regulations
relating to Under-graduate and Post-graduate medical education, namely,

(i) The validity of the MCI Regulations and the DCI Regulations
and the amendments effected therein with regard to Under-graduate
and Post-graduate courses of medicine in medical and dental colleges
and institutions in the light of Section 19A(2) of the Indian
Medical Council Act, 1956, and the corresponding provisions in the
Dentists Act, 1948.
(ii) The jurisdiction and authority of the MCI and the DCI to
conduct a single National Eligibility-cum-Entrance Test for
admission to the M.B.B.S., B.D.S. and Post-graduate courses in both
the disciplines.
(iii) The rights of the States and private institutions to
establish and administer educational institutions and to admit
students to their M.B.B.S., B.D.S. and Post-graduate courses;
(iv) The impact of NEET on the rights guaranteed to religious
and linguistic minorities under Article 30 of the Constitution.
(v) Do the impugned Regulations come within the ambit
of Entry 66, List I, of the Seventh Schedule to the Constitution?;
(vi) The effect of Presidential orders made under Article 371D
of the Constitution of India.

134. Despite the various issues raised in this batch of cases, the
central issue relates to the validity of the amended Regulations and the
right of the MCI and the DCI thereunder to introduce and enforce a common
entrance test, which has the effect of denuding the State and private
institutions, both aided and unaided, some enjoying the protection of
Article 30, of their powers to admit students in the M.B.B.S., B.D.S. and
the Post-graduate Courses conducted by them. There is little doubt that
the impugned Notifications dated 21.12.2010 and 31.5.2012, respectively,
and the amended Regulations directly affect the right of private
institutions to admit students of their choice by conducting their own
entrance examinations, as they have been doing all along. Attractive
though it seems, the decision taken by the MCI and the DCI to hold a single
National Eligibility-cum-Entrance Test to the M.B.B.S., B.D.S. and the Post-
graduate courses in medicine and dentistry, purportedly with the intention
of maintaining high standards in medical education, is fraught with
difficulties, not the least of which is the competence of the MCI and the
DCI to frame and notify such Regulations. The ancillary issues which arise
in regard to the main issue, relate to the rights guaranteed to citizens
under Article 19(1)(g) and to religious and linguistic minorities under
Article 30 of the Constitution, to establish and administer educational
institutions of their choice.

135. Doubts have been raised regarding the competence of the MCI and
the DCI to amend the 1997 and 2000 Regulations, or the 2007 Regulation and
to issue the impugned Notifications to cover all the medical institutions
in the country, which have their own procedures relating to admissions to
the M.B.B.S., B.D.S. and Post-graduate Courses which passed the triple test
indicated in P.A. Inamdar's case (supra). The validity of the MCI
Regulations of 1997 and 2000 and the DCI Regulations of 2007 and the
amendments effected therein has been questioned with reference to Sections
19A(2) and 20 of the 1956 Act and Section 20 of the 1948 Act. While
empowering the MCI and the DCI to prescribe minimum standards of medical
education required for granting recognised medical qualifications, it has
also been stipulated that the copies of the draft Regulations and all
subsequent amendments thereof are to be furnished by the Council to all the
State Governments and the Council shall, before submitting the Regulations
or any amendment thereof, as the case may be, to the Central Government for
sanction, take into consideration the comments of any State Government
received within three months from the furnishing of such copies. The said
provisions do not appear to have been complied with by the MCI or the DCI,
which rendered the Regulations and the amendments thereto invalid. On
behalf of the MCI an attempt was made to justify the omission by urging
that the directions were only directory and not mandatory. In support of
such a contention reliance was placed on Manbodhan Lal Srivastava's case
(supra), wherein the provisions of Article 320(3) of the Constitution
providing for consultation with the Union Public Service Commission or the
State Public Service Commission, were held to be directory and not
mandatory. A submission was also made that before the Regulations were
amended, MCI had interacted with the State Governments and letters had also
been exchanged in this regard and the responses were taken into account by
the Council while amending the Regulations.

136. We are afraid that the said analogy would not be applicable to the
facts of these cases. The direction contained in Sub-section (2) of
Section 19A of the 1956 Act makes it a pre-condition for the Regulations
and all subsequent amendments to be submitted to the Central Government for
sanction. The Council is required to take into consideration the comments
of any State Government within three months from the furnishing of copies
of the draft Regulations and/or subsequent amendments thereto. There is
nothing to show that the MCI ever sent the draft amended Regulations to the
different State Governments for their views. The submission of the draft
Regulations and all subsequent amendments thereto cannot be said to be
directory, since upon furnishing of the draft Regulations and all
subsequent amendments thereto by the Council to all the State Governments,
the Council has to take into consideration the comments, if any, received
from any State Government in respect thereof, before submitting the same to
the Central Government for sanction.

137. The fact situation in Manbodhan Lal Srivastava's case (supra) was
different from the fact situation in this batch of cases. Article 320(3) of
the Constitution provides for consultation by the Central or State
Government with regard to the matters enumerated therein. In the instant
case, it is not a case of consultation, but a case of inputs being provided
by the State Governments in regard to the Regulations to be framed by the
MCI or the DCI. Realising the difficulty, Mr. Gupta had argued that since
the 1997 and 2000 Regulations had been acted upon by the concerned parties,
the same must be held to have been accepted and the validity thereof was no
longer open to challenge.

138. Mr. Gupta's aforesaid submissions cannot be accepted, inasmuch as, an
invalid provision cannot be validated simply by acting on the basis
thereof.

139. Mr. Gupta has also urged that the MCI derived its authority for
framing the Regulations and/or effecting amendments thereto from Entry 66,
List I, which is within the domain of the Central Government. Accordingly,
the same would have primacy over all State laws on the subject.

140. Mr. Gupta's said submission finds support in Preeti Srivastava's case
(supra), wherein it has been held that the Regulations framed by the MCI is
binding upon the States having been framed under Entry 66, List I of the
Seventh Schedule to the Constitution. But, where does it take us as far as
these cases are concerned which derive their rights and status under
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution? Can the rights
guaranteed to individuals and also religious and linguistic minorities
under the said provisions of the Constitution, be interfered with by
legislation and that too by way of delegated legislation?

141. The four impugned Notifications dated 21.12.2010 and 31.5.2012 make it
clear, in no uncertain terms, that all admissions to the M.B.B.S. and the
B.D.S. courses and their respective Post-graduate courses, shall have to be
made solely on the basis of the results of the respective NEET, thereby
preventing the States and their authorities and privately-run institutions
from conducting any separate examination for admitting students to the
courses run by them. Although, Article 19(6) of the Constitution recognizes
and permits reasonable restrictions on the right guaranteed under Article
19(1)(g), the course of action adopted by the MCI and the DCI would not, in
our view, qualify as a reasonable restriction, but would amount to
interference with the rights guaranteed under Article 19(1)(g) and, more
particularly, Article 30, which is not subject to any restriction similar
to Article 19(6) of the Constitution. Of course, over the years this Court
has repeatedly observed that the right guaranteed under Article 30, gives
religious and linguistic minorities the right to establish and administer
educational institutions of their choice, but not to maladminister them and
that the concerned authorities could impose conditions for maintaining high
standards of education, such as laying down the qualification of teachers
to be appointed in such institutions and also the curriculum to be followed
therein. The question, however, is whether such measures would also
include the right to regulate the admissions of students in the said
institutions.

142. The first, second, third and fourth issues referred to hereinabove in
paragraph 133, are intermingled and are taken up together for the sake of
convenience. The aforesaid issues have been considered and answered by
this Court in the Ahmedabad St. Xavier's College Society case (supra), St.
Stephen's College case (supra), Islamic Academy case (supra), P.A.
Inamdar's case (supra) and exhaustively in the T.M.A. Pai Foundation case
(supra). Can, therefore, by purporting to take measures to maintain high
educational standards to prevent maladministration, the MCI and the DCI
resort to the amended MCI and DCI Regulations to circumvent the judicial
pronouncements in this regard? The answer to such question would obviously
have to be in the negative.

143. The Supreme Court has consistently held that the right to
administer an educational institution would also include the right to admit
students, which right, in our view, could not be taken away on the basis of
Notifications issued by the MCI and the DCI which had no authority, either
under the 1956 Act or the 1948 Act, to do so. The MCI and the DCI are
creatures of Statute, having been constituted under the Indian Medical
Council Act, 1956, and the Dentists Act, 1948, and have, therefore, to
exercise the jurisdiction vested in them by the Statutes and they cannot
wander beyond the same. Of course, under Section 33 of the 1956 Act and
Section 20 of the 1948 Act, power has been reserved to the two Councils to
frame Regulations to carry out the purposes of their respective Acts. It
is pursuant to such power that the MCI and the DCI has framed the
Regulations of 1997, 2000 and 2007, which set the standards for maintaining
excellence of medical education in India. The right of the MCI and the DCI
to prescribe such standards has been duly recognised by the Courts.
However, such right cannot be extended to controlling all admissions to the
M.B.B.S., the B.D.S. and the Post-graduate Courses being run by different
medical institutions in the country. At best, a certain degree of control
may be exercised in regard to aided institutions, where on account of the
funds being provided by the Government, it may have a say in the affairs of
such institutions.

144. These questions have already been considered and decided in the
T.M.A. Pai Foundation case (supra), wherein, it was categorically held that
the right to admit students being an essential facet of the right of a
private medical institution, and, in particular, minority institutions
which were unaided, non-capitation fee educational institutions, so long as
the process of admission to such institutions was transparent and merit was
adequately taken care of, such right could not be interfered with. Even
with regard to aided minority educational institutions it was indicated
that such institutions would also have the same right to admit students
belonging to their community, but, at the same time, it should also admit a
reasonable number of non-minority students which has been referred to as
the "sprinkling effect" in the Kerala Education Bill case (supra).

145. The rights of private individuals to establish and administer
educational institutions under Article 19(1)(g) of the Constitution are now
well-established and do not require further elucidation. The rights of
unaided and aided religious and linguistic minorities to establish and
administer educational institutions of their choice under Article 19(1)(g),
read with Article 30 of the Constitution, have come to be crystalised in
the various decisions of this Court referred to hereinabove, which have
settled the law that the right to admit students in the different
educational and medical institutions is an integral part of the right to
administer and cannot be interfered with except in cases of
maladministration or lack of transparency. The impugned Regulations, which
are in the nature of delegated legislation, will have to make way for the
Constitutional provisions. The freedom and rights guaranteed under
Articles 19(1)(g), 25, 26 and 30 of the Constitution to all citizens to
practise any trade or profession and to religious minorities to freedom of
conscience and the right freely to profess, practise and propagate
religion, subject to public order, morality and health and to the other
provisions of Part III of the Constitution, and further to maintain
institutions for religious and charitable purposes as guaranteed under
Articles 25 and 26 of the Constitution, read with the rights guaranteed
under Article 30 of the Constitution, are also well-established by various
pronouncements of this Court. Over and above the aforesaid freedoms and
rights is the right of citizens having a distinct language, script or
culture of their own, to conserve the same under Article 29(1) of the
Constitution.

146. Nowhere in the 1956 Act nor in the MCI Regulations, has the
Council been vested with any authority to either conduct examinations or to
direct that all admissions into different medical colleges and institutions
in India would have to be on the basis of one common National Eligibility-
cum-Entrance Test, thereby effectively taking away the right of the
different medical colleges and institutions, including those run by
religious and linguistic minorities, to make admissions on the basis of
their own rules and procedures. Although, Mr. Gupta has contended that
Section 33(l) of the 1956 Act entitles the MCI to make regulations
regarding the conduct of professional examinations, the same, in our view,
does not empower the MCI to actually hold the entrance examination, as has
been purported to be done by the holding of the NEET. The power to frame
regulations for the conduct of professional examinations is a far cry from
actually holding the examinations and the two cannot be equated, as
suggested by Mr. Gupta.

147. Although, the controversy has been extended to include the
amendments made to the Entries in the Second and Third Lists of the Seventh
Schedule to the Constitution and the deletion of Entry 11 from the State
List and the introduction of Entry 25 in the Concurrent List, on behalf of
the MCI it has been reiterated that the impugned Notifications and amended
Regulations had been made under Entry 66 of List I by the MCI acting on its
delegated authority and would, therefore, have an overriding effect over
any State law on the subject.

As already indicated hereinbefore, the right of the MCI to frame
Regulations under Entry 66, List I, does not take us anywhere, since the
freedoms and rights sought to be enforced by the Petitioners flow from
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution which cannot be
superseded by Regulations framed by a Statutory authority by way of
delegated legislation. The fact that such power was exercised by the MCI
and the DCI with the previous approval of the Central Government, as
contemplated under Section 33 of the 1956 Act and under Section 20 of the
1948 Act, would not bestow upon the Regulations framed by the MCI and DCI,
which are in the nature of subordinate legislation, primacy over the
Constitutional provisions indicated above. A feeble attempt has been made
by Mr. Gupta to suggest that admission into institutions run by the
Christian Church depended on selection of students by the Diocese. This
procedure, according to Mr. Gupta, was against the concept of recognition
of merit.

148. In our judgment, such a stand is contrary to the very essence of
Articles 25, 26, 29(1) and 30 of the Constitution. In view of the rights
guaranteed under Article 19(1)(g) of the Constitution, the provisions of
Article 30 should have been redundant, but for the definite object that the
framers of the Constitution had in mind that religious and linguistic
minorities should have the fundamental right to preserve their traditions
and religious beliefs by establishing and administering educational
institutions of their choice. There is no material on record to even
suggest that the Christian Medical College, Vellore, or its counter-part in
Ludhiana, St. John's College, Bangalore, or the linguistic minority
institutions and other privately-run institutions, aided and unaided, have
indulged in any malpractice in matters of admission of students or that
they had failed the triple test referred to in P.A. Inamdar's case
(supra). On the other hand, according to surveys held by independent
entities, CMC, Vellore and St. John's Medical College, Bangalore, have been
placed among the top Medical Colleges in the country and have produced some
of the most brilliant and dedicated doctors in the country believing in the
philosophy of the institutions based on Christ's ministry of healing and
caring for the sick and maimed.

149. Although, there is some difference of opinion as to the right to
freedom of religion as guaranteed under Article 25 of the Constitution
being confined only to individuals and not organizations in regard to
religious activities, Article 26(a) very clearly indicates that subject to
public order, morality and health, every religious denomination or any
section thereof shall have the right to establish and maintain institutions
for religious and charitable purposes. The emphasis is not on religious
purposes alone, but extends to charitable purposes also, which would
include the running of a hospital to provide low-cost, but efficient
medical care to all, which the CMC, Vellore, and other private missionary
hospitals of different denominations are doing. So long as a private
institution satisfies the triple test indicated in P.A. Inamdar’s case
(supra), no objection can be taken to the procedure followed by it over the
years in the matter of admission of students into its M.B.B.S. and Post-
graduate courses in medicine and other disciplines. Except for alleging
that the admission procedure was controlled by the Church, there is nothing
even remotely suggestive of any form of maladministration on the part of
the medical institutions being run by the Petitioner Association.

150. This brings us to the issue regarding the impact of the NEET on
the right of the religious and linguistic minorities in view of the
provisions of Article 30(1) of the Constitution. Although, the said
question has been dealt with to some extent while dealing with the other
issues, certain aspects thereof still need to be touched upon. As has been
mentioned hereinbefore, having regard to the provisions of Article 19(1)(g)
of the Constitution, the provisions of Article 30 would have been redundant
had not the framers of the Constitution had some definite object in mind in
including Article 30 in the Constitution. This Court has had occasion in
several matters to consider and even deal with the question. In the
Ahmedabad St. Xavier's College Society case (supra), it was held that the
right under Article 30(1) is more in the nature of protection and was
intended to instill confidence in minorities against any executive or
legislative encroachment on their right to establish and administer
educational institutions of their choice. While the aforesaid observations
help in understanding the intention of the Constituent Assembly in
including Article 30 in the Constitution as a fundamental right untrammeled
by any restrictions, as in the case of other fundamental rights, the real
spirit of the said Article has been captured by Justice V. Krishna Iyer in
Jagdish Sharan's case (supra), wherein His Lordship observed that merit
cannot be measured in terms of marks alone, but human sympathies are
equally important. His Lordship's further observations that the heart is
as much a factor as the head in assessing the social value of a member of
the medical profession, completes the picture. This, in fact, is what has
been attempted to be conveyed by Mr. Harish Salve, appearing for the CMC
Vellore, while submitting that under Article 30 of the Constitution an
educational institution must be deemed to have the right to reject a
candidate having superior marks as against a candidate who having lesser
marks conformed to the beliefs, aspirations and needs of the institution
for which it was established.

151. One of the eleven questions which came to be considered by the
Eleven Judge Bench in the T.M.A. Pai Foundation case, namely, Question
5(a), was whether the minority's rights to establish and administer
educational institutions of their choice would include the procedure and
method of admission and selection of students. While dealing with one of
the five issues reformulated by the Chief Justice as to whether there can
be Government regulations in case of private institutions and, if so, to
what extent, it was indicated in the majority judgment that the right to
establish and administer broadly comprises various rights, including the
right to admit students in regard to private unaided non-minority
educational institutions. It was further observed that, although, the
right to establish an educational institution can be regulated, such
regulatory measures must, in general, be to ensure the maintenance of
proper academic standards, atmosphere and infrastructure (including
qualified staff) and the prevention of maladministration by those in-charge
of management, and that the fixing of a rigid fee structure, dictating the
formation and composition of the Governing Body, compulsory nomination of
teachers and staff for appointment or nominating students for admissions,
would be unacceptable restrictions.

152. As far as private unaided professional colleges are concerned, the
majority view was that it would be unfair to apply the same rules and
regulations regulating admission to both aided and unaided professional
institutions. In that context, it was suggested that it would be
permissible for the University or the Government at the time of granting
recognition, to require a private unaided institution to provide for merit-
based selection, while, at the same time, giving the management sufficient
discretion in admitting students, which could be done by reserving a
certain percentage of seats for admission by the management out of those
students who had passed a common entrance test held by itself, while the
rest of the seats could be filled up on the basis of counselling by the
State agency, which would take care of the poorer and backward sections of
society.

153. However, as far as the aided private minority institutions
are concerned, the inter-play between Article 30 and Article 29(2) of the
Constitution was taken note of in the majority decision and after
considering the various decisions on the said issue, including the decision
in D.A.V. College Vs. State of Punjab [(1971) 2 SCC 269] and the Ahmedabad
St. Xavier's College Society case (supra), reference was made to the
observations made by Chief Justice Ray, as His Lordship then was, that, in
the field of administration, it was not reasonable to claim that minority
institutions would have complete autonomy. Checks on the administration
would be necessary in order to ensure that the administration was efficient
and sound and would serve the academic needs of the institution. Reference
was also made to the concurring judgment of Khanna, J., wherein the learned
Judge, inter alia, observed that the right conferred upon religious and
linguistic minorities under Article 30 is to establish and administer
educational institutions of their choice. Administration connotes
management of the affairs of the institution and such management must be
free of control so that the founders or their nominees could mould the
institution as they thought fit and in accordance with the ideas of how the
interest of the community in general and the institution in particular
would be best served. The learned Judge was of the view that the right of
the minorities to administer educational institutions did not prevent the
making of reasonable regulations in respect of such institutions, but such
regulations could not impinge upon the minority character of the
institution and a balance had to be maintained between the two objectives
- that of ensuring the standard of excellence of the institution and that
of preserving the right of minorities to establish and administer their
educational institutions.

154. The learned Judges also approved the view taken in the St.
Stephen's College case (supra) regarding the right of aided minority
institutions to give preference to students of its own community for
admission. Their Lordships, however, had reservations regarding the
rigidity of percentage of students belonging to the minority community to
be admitted.

155. While answering Question 4 as to whether the admission of students to
minority educational institutions, whether aided or unaided, can be
regulated by the State Government or by the University to which the
institution is affiliated, the learned Judges held that admission of
students to unaided minority educational institutions, namely, schools and
under-graduate colleges, cannot be regulated by the State or the University
concerned, except for providing the qualifications and minimum conditions
of eligibility in the interest of academic standards. The learned Judges
further held that the right to admit students, being an essential facet of
the right to administer educational institutions of their choice, as
contemplated under Article 30 of the Constitution, the State Government or
the University may not be entitled to interfere with that right, so long as
the admission to the unaided educational institutions was on a transparent
basis and merit was adequately taken care of. The learned Judges went on
to indicate that the right to administer, not being absolute, there could
be regulatory measures for ensuring educational standards and maintaining
excellence thereof, and it was more so in the matter of admissions to
professional institutions.

156. In answering Question 5(a), as to whether the rights of minorities to
establish and administer educational institutions of their choice would
include the procedure and method of admission and selection of students,
the learned Judges held that a minority institution may have its own
procedure and method of admission as well as selection of students, but
such a procedure must be fair and transparent and the selection of students
in professional and higher educational colleges should be on the basis of
merit and even an unaided minority institution should not ignore the merit
of the students for admission while exercising its right to admit students
to professional institutions. On the question whether the rights of
minority institutions regarding admission of students and to lay down the
procedure and method of admission would be affected, in any way, by receipt
of State aid, the learned Judges were of the view that while giving aid to
professional institutions, it would be permissible for the authority giving
aid to prescribe conditions in that regard, without, however, affecting the
right of such institutions to actually admit students in the different
courses run by them.

157. What can ultimately be culled out from the various observations made
in the decisions on this issue, commencing from the Kerala Education Bill
case (supra) to recent times, is that admissions to educational
institutions have been held to be part and parcel of the right of an
educational institution to administer and the same cannot be regulated,
except for the purpose of laying down standards for maintaining the
excellence of education being provided in such institutions. In the case
of aided institutions, it has been held that the State and other
authorities may direct a certain percentage of students to be admitted
other than by the method adopted by the institution. However, in cases of
unaided institutions, the position is that except for laying down standards
for maintaining the excellence of education, the right to admit students
into the different courses could not be interfered with. In the case of
aided minority institutions, it has been held that the authority giving aid
has the right to insist upon the admission of a certain percentage of
students not belonging to the minority community, so as to maintain the
balance of Article 19(2) and Article 30(1) of the Constitution. Even with
regard to unaided minority institutions, the view is that while the
majority of students to be admitted should be from the minority community
concerned, a certain percentage of students from other communities should
also be admitted to maintain the secular character of education in the
country in what has been described as a "sprinkling effect".

158. Mr. Parasaran's submissions with regard to the concept of
"Rag Bag" legislation would not apply to the facts of these cases since the
amendments to the Regulations of 1997, 2000 and 2007 were effected under
Entry 66, List I of the Seventh Schedule and no recourse was taken to Entry
25 of the Concurrent List by the MCI and DCI while amending the said
Regulations.

159. This brings us to the last issue, which has been raised before us
regarding the impact of the Presidential Orders made under Article 371D of
the Constitution of India. As pointed out by Mr. L. Nageshwar Rao, learned
Senior Advocate, special enactments have been made in the States of Andhra
Pradesh and Tamil Nadu regarding admission of students in the different
medical colleges and institutions being run in the said States. The said
legislation being under Entry 25 of List III of the Seventh Schedule to the
Constitution, the question which arises is whether the amended MCI
Regulations would have primacy over the said State enactments. The
question is answered by Article 371-D of the Constitution which empowers
the President to make special provisions with respect to the State of
Andhra Pradesh, including making orders with regard to admission in
educational institutions. Clause 10 of Article 371-D provides as follows:
"The provisions of this article and of any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of this Constitution or in any other law
for the time being in force."

Accordingly, the enactments made in the States of Andhra Pradesh
and Tamil Nadu will remain unaffected by the impugned Regulations. We have
already held that the Regulations and the amendments thereto have been
framed by the MCI and the DCI with the previous permission of the Central
Government under Entry 66, List I, but that the Regulations cannot prevail
over the constitutional guarantees under Articles 19(1)(g), 25, 26, 29(1)
and 30 of the Constitution.

160. Apart from the legal aspects, which have been considered at length,
the practical aspect of holding a single National Eligibility-cum-Entrance
Test needs to be considered. Although, it has been submitted by the
learned Additional Solicitor General that a single test would help poor
students to avoid sitting for multiple tests, entailing payment of fees for
each separate examination, it has to be considered as to who such poor
students could be. There can be no controversy that the standard of
education all over the country is not the same. Each State has its own
system and pattern of education, including the medium of instruction. It
cannot also be disputed that children in the metropolitan areas enjoy
greater privileges than their counter-parts in most of the rural areas as
far as education is concerned, and the decision of the Central Government
to support a single entrance examination would perpetuate such divide in
the name of giving credit to merit. In a single window competition, the
disparity in educational standards in different parts of the country cannot
ensure a level playing field. The practice of medicine entails something
more than brilliance in academics, it requires a certain commitment to
serve humanity. India has brilliant doctors of great merit, who are
located mostly in urban areas and whose availability in a crisis is quite
uncertain. What is required to provide health care to the general masses
and particularly those in the rural areas, are committed physicians who are
on hand to respond to a crisis situation. Given the large number of people
who live in the villages in difficult conditions, the country today has
more need of such doctors who may not be specialists, but are available as
general physicians to treat those in need of medical care and treatment in
the far flung areas of the country, which is the essence of what was
possibly envisaged by the framers of the Constitution in including Article
30 in Part III of the Constitution. The desire to give due recognition to
merit is laudable, but the pragmatic realities on the ground relating to
health care, especially in the rural and tribal areas where a large section
of the Indian population resides, have also to be kept in mind when policy
decisions are taken in matters such as this. While the country certainly
needs brilliant doctors and surgeons and specialists and other connected
with health care, who are equal to any in other parts of the world,
considering ground realities, the country also has need for "barefoot
doctors", who are committed and are available to provide medical services
and health care facilities in different areas as part of their mission in
becoming doctors.

161. In the light of our aforesaid discussions and the views expressed in
the various decisions cited, we have no hesitation in holding that the
"Regulations on Graduate Medical Education (Amendment) 2010 (Part II)" and
the "Post Graduate Medical Education (Amendment) Regulation, 2010 (Part
II)", whereby the Medical Council of India introduced the single National
Eligibility-cum-Entrance Test and the corresponding amendments in the
Dentists Act, 1948, are ultra vires the provisions of Articles 19(1)(g),
25, 26(a), 29(1) and 30(1) of the Constitution, since they have the effect
of denuding the States, State-run Universities and all medical colleges and
institutions, including those enjoying the protection of the above
provisions, from admitting students to their M.B.B.S., B.D.S. and Post-
graduate courses, according to their own procedures, beliefs and
dispensations, which has been found by this Court in the T.M.A. Pai
Foundation case (supra), to be an integral facet of the right to
administer. In our view, the role attributed to and the powers conferred
on the MCI and the DCI under the provisions of the Indian Medical Council
Act, 1956, and the Dentists Act, 1948, do not contemplate anything
different and are restricted to laying down standards which are uniformly
applicable to all medical colleges and institutions in India to ensure the
excellence of medical education in India. The role assigned to the MCI
under Sections 10A and 19A(1) of the 1956 Act vindicates such a conclusion.

162. As an off-shoot of the above, we also have no hesitation in holding
that the Medical Council of India is not empowered under the 1956 Act to
actually conduct the NEET.

163. The Transferred Cases and the Writ Petitions are, therefore, allowed
and the impugned Notifications Nos. MCI-31(1)/2010-MED/49068, and
MCI.18(1)/2010-MED/49070, both dated 21st December, 2010, published by the
Medical Council of India along with Notification Nos. DE-22-2012 dated 31st
May, 2012, published by the Dental Council of India and the amended
Regulations sought to be implemented thereunder along with Notification
Nos. DE-22-2012 dated 31st May, 2012, published by the Dental Council of
India, are hereby quashed. This will not, however, invalidate actions so
far taken under the amended Regulations, including the admissions already
given on the basis of the NEET conducted by the Medical Council of India,
the Dental Council of India and other private medical institutions, and the
same shall be valid for all purposes.

164. Having regard to the nature of the cases decided by this judgment,
the parties thereto will bear their own costs.

...................CJI.
(ALTAMAS KABIR)

.....................J.
(VIKRAMAJIT SEN)

New Delhi
Dated: July 18, 2013.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
T.C. (C) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS
WITH
T.C. (C) NO.99/2012 and batch

ANIL R. DAVE, J.

1. I have carefully gone through the elaborate judgment delivered by the
learned Chief Justice. After going through the judgment, I could not
persuade myself to share the same view.

2. As the learned Chief Justice is to retire within a few days, I have to
be quick and therefore, also short. Prior to preparation of our draft
judgments we had no discussion on the subject due to paucity of time
and therefore, I have to express my different views but fortunately
the learned Chief Justice has discussed the facts, submissions of the
concerned counsel and the legal position in such a detail that I need
not discuss the same again so as to make the judgment lengthy by
repeating the submissions and the legal provisions, especially when I
am running against time.

3. Sum and substance of all these petitions is that the Medical Council
of India (hereinafter referred to as ‘the MCI’) should not be
entrusted with a right to conduct National Eligibility-cum- Entrance
Test (hereinafter referred to as ‘the NEET’) and whether introduction
of the NEET would violate fundamental rights of the petitioners
guaranteed under the provisions of Articles 19(1)(g), 25, 26, 29(1)
and 30 of the Constitution of India.

4. The submissions are to the effect that if the MCI or any other body
conducts examination in the nature of the NEET, the petitioners, who
are managing medical colleges, would not be in a position to exercise
their discretion in relation to giving admission to the students in
their colleges and therefore, their fundamental right guaranteed under
Article 19(1)(g) and the rights of the minority institutions under
Articles 29 and 30 would be violated. The submission is to the effect
that the minority institutions should have full and unfettered right
to select the students who are to be imparted education in their
colleges. Any restriction or regulation of whatsoever type, would
violate their fundamental rights. Thus, what is to be seen by this
Court is whether the system sought to be introduced by the MCI under
the provisions of the Indian Medical Council Act, 1956 (hereinafter
referred to as ‘the Act’) is violative of any of the legal or
constitutional provisions. In the process of deciding so, in my
opinion, this Court also has to examine whether it would be in the
interest of the society and the students aspiring to study medicine to
have a common examination in the nature of the NEET.

5. Sections 19A and 20 of the Act, which have been reproduced in the
judgment delivered by the learned Chief Justice, permit the MCI to
prescribe the minimum standards of medical education. Section 33 of
the Act also empowers the MCI to make regulations to carry out the
purposes of the Act. Thus, the said provisions enable the MCI to
regulate the system of medical education throughout the country.

6. Let me first of all consider the scope of the aforestated sections and
the provisions of the Act in relation to the regulation of the
standards of education to be imparted in medical colleges. It is a
matter of sound common sense that to have doctors well versed in the
subject of medicine and having proficiency in their field, we should
have suitable and deserving students who should be imparted good
medical education and there should be strict supervision over the
education system so as to see that the students who are not up to the
mark or are not having the highest standards of education are not
declared successful at the examinations.

7. To achieve the aforestated ideal, the system should be such that it
should have effective regulations at three different stages – The
first stage is the admission of the students to medical colleges. The
students who are admitted to the medical course should be suitable and
should have the right aptitude so that they can be shaped well into
the medical profession after being imparted proper education. The
second stage is with regard to determination of syllabus and the
manner of imparting education and for the said purpose, the regulating
authorities should see that proper medical training is given to the
students and for the said purpose sufficiently equipped hospitals
should be there as teaching institutes. It should also be seen that
sufficient number of patients are treated at the hospitals so that the
students can get adequate practical training where the patients are
being treated. Finally, the examinations, which the students have to
pass to prove their worth as successful students should also be
strictly regulated. If there is any lacuna or short-coming at any of
the above three stages, it would adversely affect the professional
standards of the students passing out from the educational
institutions as physicians, who are trusted by the citizens of India
at critical moments, when someone’s life is at stake. I need not
state anything more with regard to the importance of the medical field
or the physicians as it is a matter of common knowledge that to
maintain good health and to cure the diseases and to avoid or reduce
trauma of a patient, existence of a trained and well groomed doctor is
a sine qua non. All these facts equally apply to dentists and
therefore, I am not specially referring to them every time.

8. By virtue of introduction of the NEET to be conducted under the
supervision of the MCI, standards of the students at the stage of
their admission to the medical colleges, be it for admission to the
M.B.B.S. course or the post graduation studies in medical faculties,
would be regulated. Similarly, for imparting education to the
students studying in the field of Dentistry, Dental Council of India
(For short ‘the DCI’) has to regulate admissions so as to see that
eligible and suitable students are admitted to the different courses
in the field of dentistry.

9. There is no need to discuss the importance of quality of input, when
something is to be produced, manufactured or developed. Even when one
thinks of manufacturing an article, the manufacturer is conscious
about the quality of the input and he would invariably select the best
input i.e. such raw material so as to make his final product
excellent. Principle is not different in the field of education. If
an educational institution wants an excellent output in the nature of
a well trained, well educated, well groomed professional, the
institution must see that suitable and deserving students having an
aptitude for becoming good doctors are admitted to the medical
college. If among all good students, there are students who are not
up to the mark, who are lagging behind in their studies, who are weak
in studies, it would not be possible to educate or groom such students
effectively and efficiently. A weak student may lag behind due to his
lower level of grasping or education or training. In the
circumstances, it becomes the duty of the regulating authority to see
that quality of the students at the stage of admission is thoroughly
examined and only deserving and suitable students are given admission
to the medical colleges so as to make them suitable members of a noble
profession upon completion of their studies. So as to see that only
deserving and suitable students are admitted to the medical colleges,
the MCI has introduced the NEET. By virtue of introduction of the
NEET, the students aspiring to become physicians or pursue further
medical studies will have to pass the NEET. The NEET would be a
nationwide common examination to be held at different places in the
country so that all students aspiring to have medical education, can
appear in the examination and ultimately, on the basis of the result
of the examination, suitability and eligibility of the students for
admission to the medical profession can be determined. This system is
a part of regulation whereby entry to the field of medical education
is regulated in such a way that only eligible and suitable students
are given admission to medical colleges.

10. If the NEET is conducted under the supervision of the apex
professional body, it would inspire confidence in the system and in
that event, the selection of the students for admission to the medical
profession would be on merit based selection. No extraneous
consideration would come into play in the process of selection. The
process of selection would not be influenced by irrelevant factors
like caste and creed, community, race, lineage, gender, social or
economic standing, place of residence – whether rural or urban,
influence of wealth or power; and admission would be given only to the
students who really deserve to be well qualified physicians or
dentists. Thus, there would not be any discrimination or influence
in the process of selection. I may add here that though the students
can be selected only on the basis of their merit, it would be open to
the States to follow their reservation policy and it would also be
open to the institutions based on religious or linguistic minority to
select students of their choice, provided the students so selected
have secured minimum marks prescribed at the NEET. From and among
those students, who have secured prescribed qualifying marks, the
concerned institutions, who want to give priority to the students
belonging to a particular class or caste or creed or religion or
region, etc. would be in a position to give preference to such
students in the matter of their admission to the concerned medical
college. Thus, the purpose with which the Articles 25, 26, 29, and 30
are incorporated in our Constitution would be fully respected and
implemented.

11. Furthermore, centralization of the selection process under holding the
NEET would help the students to appear at the examination from any
corner of our nation. The result of the examination would be
published at the same time on one particular day and with the same
standard. There would not be any problem with regard to equalizing
marks and merits of different students passing different examinations
from different regions or states or universities or colleges. The
process of selection would be equal, fair, just and transparent. All
the students would be in a position to compete from a common platform
and the test will have credibility in the eyes of the students and the
society. There are number of professional institutions which are
having only one professional examination and there are some
institutions which also have one common entrance test which would
decide competence and capability of a student for being admitted to
the professional course and the system which is followed by them for
years is quite satisfactory and successful. The students would be
benefited because they will not have to appear at different places on
different days at different examinations for the same purpose. In my
opinion, the aforestated factors, in practical life, would surely help
the students, the profession and the institutions which are not money
minded and are sincere in their object of imparting medical education
to the aspiring students. The cost of appearing at the NEET would be
much less as the aspiring students will not have to purchase several
expensive admission forms and will not have to travel to different
places.

12. An apprehension has been voiced by the counsel for the petitioners
that the minority institutions or the educational institutions
belonging to special classes would be adversely affected because of
the introduction of the NEET. In fact, the said apprehension is not
well founded. The policy with regard to the reservation can be very
well implemented if the NEET is introduced because the NEET would
determine standard or eligibility of a student who is to be imparted
education in the field of medicine. The institution imparting medical
education will have to see that the student to be admitted is having
minimum standard of suitability and the institution will be at a
liberty to select a student of its choice if it wants to promote a
particular class of persons. By admitting suitable and deserving
students having an aptitude for becoming doctors, the religious
institutions would be in a position to have better doctors for
fulfilling their objective.

13. Moreover, the policy with regard to reservation for certain classes,
followed by the States would also not be adversely affected. From the
deserving eligible students, who have procured qualifying marks at the
NEET and who belong to the reserved classes would be given preference
so as to fulfill the policy with regard to reservation. Thus, the
students belonging to the reserved classes would also not suffer on
account of holding the NEET.

14. In the circumstances, it cannot be said that introduction of the NEET
would adversely affect the policy with regard to the reservation or
the policy of the States pertaining to upliftment of downtrodden
persons belonging to certain classes.

15. The MCI has power to regulate medical education and similarly the DCI
has also the power to regulate the education in the field of
Dentistry. Meaning of the word ‘to regulate’ would also include
controlling entry of undeserving or weak students into the profession,
who cannot be groomed in normal circumstances as good physicians or
doctors or dentists. The term ‘regulate’ would normally mean to
control something by means of rules or by exercise of control over a
system. It is an admitted fact that one of the functions of these
apex bodies of the professionals is to regulate the system of
education. In my opinion, we cannot put any fetter on the system
introduced by these bodies, whereby they try to control entry of weak
or undeserving or less competent students to the institutes where
medical education is imparted. Thus, in my opinion, the MCI and the
DCI are competent to exercise their right to regulate the education
system under the provisions of the Act and under the provisions of the
Dentists Act, 1948, which permit them to determine the standard of
students who are to be admitted to these professional courses.

16. Hence, I am of the view that the MCI and the DCI are entitled to
regulate the admission procedure by virtue of the provisions of their
respective Acts, which enable them to regulate and supervise the
overall professional standards.

17. I have now to see whether the legal provisions which permit the
aforestated apex bodies to conduct the NEET, so as to regulate
admission of the students to medical institutes, are in accordance
with legal and Constitutional provisions. The aforestated question
has been rightly answered by this court in the case of Dr. Preeti
Srivastava and Another vs. State of M.P. and Others (1999) 7 SCC 120
to the effect that norms of admission will have a direct impact on the
standards of education. This court has observed that the standards of
education in any institution or college would depend upon several
factors and the caliber of the students to be admitted to the
institutions would also be one of the relevant factors. Moreover, in
view of entry 25 of List III of the Seventh Schedule to the
Constitution, Union as well as the States have power to legislate on
the subject of medical education, subject to the provisions of entry
66 of List I of the Seventh Schedule, which deals with determination
of standards in institutions for higher education. In the
circumstances, a State has the right to control education, including
medical education, so long as the field is unoccupied by any Union
legislation. By virtue of entry 66 in List I to the Seventh Schedule,
the Union can make laws with respect to determination of standards in
institutions for higher education. Similarly, subject to enactments,
laws made with respect to the determination of standards in
institutions for higher education under power given to the Union in
entry 66 of List I of the Seventh Schedule, the State can also make
laws relating to education, including technical education and medical
education. In view of the above position clarified in the case of Dr.
Preeti Srivastava (supra), the NEET can be conducted under the
supervision of the MCI as per the regulations framed under the Act.
As stated hereinabove, Section 33 of the Act enables the MCI to make
regulations to carry out the purposes of the Act and therefore,
conducting the NEET is perfectly legal.

18. In para 36 of the judgment delivered in the case of Dr. Preeti
Srivastava (supra), this Court has held that for the purpose of
maintaining standards of education, it is very much necessary to see
that the students to be admitted to the higher educational
institutions are having high caliber and therefore, in the process of
regulating educational standards in the fields of medicine and
dentistry also the above principle should be followed and the apex
professional bodies should be permitted to conduct examinations in the
nature of the NEET. Regulations made under the Act and the Dentists
Act, 1948 must be treated as part of the Act and therefore, conducting
the NEET cannot be said to be illegal. Submissions were made by the
learned counsel for the petitioners that as copies of the draft
Regulations, as required under Section 19A of the Act, were not
forwarded to the State Governments, the said Regulations cannot be
acted upon. The said submission is of no importance for the reason
that I am in agreement with the submission of the learned counsel
appearing for the MCI that the said provision is not mandatory and
therefore, non-supply of the draft regulations would not adversely
affect the validity of the Regulations and the NEET. It also appears
from the language used in Section 19A of the Act that the said
provision with regard to furnishing copies of the draft regulations to
all the State Governments is not mandatory and any defect in the said
procedure would not vitiate validity of the Regulations or action
taken in pursuance of the Regulations.

19. Similar question with regard to having a common test had arisen for
admitting students aspiring to become veterinary surgeons. The
question was whether it was open to the apex body of the said
profession to conduct a common entrance test. Ultimately, the issue
had been resolved by this court in the matter of Veterinary Council of
India vs. Indian Council of Agricultural Research, (2000) 1 SCC 750.
This court, after considering several issues similar to those which
have been raised in these petitions, held that it was open to the
concerned regulatory Council to conduct a common entrance test.

20. So far as the rights guaranteed under Article 19(1)(g) of the
Constitution with regard to practising any profession or carrying on
any occupation, a trade or business, are concerned, it is needless to
say that the aforestated rights are not unfettered. Article 19(6) of
the Constitution permits the State to enact any law imposing
reasonable restrictions on the rights conferred by Article 19(1)(g) in
relation to the professional or technical qualifications necessary for
practising any profession. Enactments of the Act and the Dentists
Act, 1948, including Regulations made thereunder, which regulate the
professional studies cannot be said to be violative of the
Constitutional rights guaranteed to the petitioners under Article
19(1)(g) of the Constitution. The framers of the Constitution were
conscious of the fact that anybody cannot be given a right to practise
any profession without having regard to his capacity, capability or
competence. To be permitted to practise a particular profession,
especially when the profession is such which would require highly
skilled person to perform the professional duties, the State can
definitely regulate the profession. Even if we assume that all the
petitioner institutions are in business of imparting education, they
cannot also have unfettered right of admitting undeserving students so
as to make substandard physicians and dentists. One may argue here
that ultimately, after passing the final examination, all students who
had joined the studies would be at par and therefore, even if a very
weak or substandard student is given admission, after passing the
final examination, which is supervised by one of the apex bodies
referred to hereinabove, he would be at par with other students who
were eligible and suitable at the time when they were given admission.
In practical life, we do find a difference between a professional who
has passed his professional examination at the first or second trial
and the one who has passed examination after several trials. Be that
as it may, it is for the apex body of the professionals to decide as
to what type of students should undergo the professional training.
The function with regard to regulating educational activity would be
within the domain of the professional bodies and their decision must
be respected so as to see that the society gets well groomed bright
physicians and dentists. Thus, in my opinion, the introduction of the
NEET would not violate the right guaranteed to the petitioners under
the provisions of Article 19(1)(g) of the Constitution of India.

21. So far as the rights guaranteed to the petitioners under the
provisions of Articles 25, 26, 29 and 30 are concerned, in my opinion,
none of the rights guaranteed under the aforestated Articles would be
violated by permitting the NEET. It is always open to the petitioners
to select a student subject to his being qualified by passing the
examination conducted by the highest professional body. This is to
assure that the students who are to undergo the professional training
are suitable for the same. Regulations relating to admission of the
students i.e. admitting eligible, deserving and bright students would
ultimately bring reputation to the educational institutes. I fail to
understand as to why the petitioners are keen to admit undeserving or
ineligible students when eligible and suitable students are available.
I am sure that even a scrupulous religious person or an educational
institution would not like to have physicians or dentists passing
through its institution to be substandard so as to bring down
reputation of the profession or the college in which such a
substandard professional was educated. Minorities - be it religious
or linguistic, can impart training to a student who is found worthy to
be given education in the field of medicine or dentistry by the
professional apex body. In my opinion, the Regulations and the NEET
would not curtail or adversely affect any of the rights of such
minorities as apprehended by the petitioners. On the contrary,
standard quality of input would reasonably assure them of sterling
quality of the final output of the physicians or dentists, who pass
out through their educational institutions.

22. An apprehension was voiced by some of the counsel appearing for the
petitioners that autonomy of the petitioner institutions would be lost
if the NEET is permitted. I fail to understand as to how autonomy of
the said institutions would be adversely affected because of the NEET.
The Government authorities or the professional bodies named
hereinabove would not be creating any hindrance in the administrative
affairs of the institutions. Implementation of the NEET would only
give better students to such institutions and from and among such
highly qualified and suitable students, the minority institutions will
have a right to select the students of their choice. At this stage,
the institutions would be in a position to use their discretion in the
matter of selection of students. It would be open to them to give
weightage to the religion, caste, etc of the student. The
institutions would get rid of the work of conducting their separate
examinations and that would be a great relief to them. Except some
institutions having some oblique motive behind selecting students who
could not prove their mettle at the common examination, all
educational institutes should feel happy to get a suitable and
eligible lot of students, without making any effort for selecting
them.

23. For the reasons recorded hereinabove, in my opinion, it cannot be said
that introduction of the NEET would either violate any of the
fundamental or legal rights of the petitioners or even adversely
affect the medical profession. In my opinion, introduction of the
NEET would ensure more transparency and less hardship to the students
eager to join the medical profession. Let us see the consequence, if
the apex bodies of medical profession are not permitted to conduct the
NEET. A student, who is good at studies and is keen to join the
medical profession, will have to visit several different States to
appear at different examinations held by different medical colleges or
institutes so as to ensure that he gets admission somewhere. If he
appears only in one examination conducted by a particular University
in a particular State and if he fails there, he would not stand a
chance to get medical education at any other place. The NEET will
facilitate all students desirous of joining the medical profession
because the students will have to appear only at one examination and
on the basis of the result of the NEET, if he is found suitable, he
would be in a position to get admission somewhere in the country and
he can have the medical education if he is inclined to go to a
different place. Incidentally, I may state here that learned senior
counsel Mr. Gupta had informed the Court that some medical colleges,
who are more in a profiteering business rather than in the noble work
of imparting medical education, take huge amount by way of donation or
capitation fees and give admission to undeserving or weak students
under one pretext or the other. He had also given an instance to
support the serious allegation made by him on the subject. If only
one examination in the country is conducted and admissions are given
on the basis of the result of the said examination, in my opinion,
unscrupulous and money minded businessmen operating in the field of
education would be constrained to stop their corrupt practices and it
would help a lot, not only to the deserving students but also to the
nation in bringing down the level of corruption.

24. For the aforestated reasons, I am of the view that the petitioners are
not entitled to any of the reliefs prayed for in the petitions. The
impugned notifications are not only legal in the eyes of law but are
also a boon to the students aspiring to join medical profession. All
the petitions are, therefore, dismissed with no order as to costs.

........................................J.
(ANIL R. DAVE)

New Delhi
July 18, 2013

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Rural posting must for MBBS doctors pursuing post-graduation

2013-06-21T17:31:00.003+05:30

From http://timesofindia.indiatimes.com/india/Rural-posting-must-for-MBBS-doctors-pursuing-post-graduation/articleshow/20691808.cms NEW DELHI: The MBBS doctors aspiring to pursue post-graduation will now have to compulsorily undertake a one-year rural posting before becoming eligible for such a course. In a major decision aimed at improving rural healthcare in India, the Union government has decided to make it mandatory for all MBBS doctors to undergo one year rural posting to sit for post-graduation entrance examination. According to health ministry sources, a proposal to this effect was cleared by the ministry recently and Medical Council of India (MCI) is in the process of issuing a notification. "The decision will be applicable from the next academic session (2014-15). All MBBS graduates seeking a post-graduate degree would have to work for one year in a village before they can take the PG entrance examination," said a senior official. He said the MBBS course structure and duration will remain the same. The decision came after two years of deliberations, as the earlier proposal of increasing the duration of the MBBS course to include a rural posting for doctors was scuttled after stiff opposition. But now the ministry seems to have decided on it in view of the scarcity of medical professional in medical facilities in the rural areas. Health ministry statistics show there is more than 60% shortage of general doctors and over 80% of specialist doctors in rural India. "The initiative to make rural posting compulsory is key to addressing the need of more doctors for rural areas. It will be notified soon," said Dr Jagdish Prasad, the Director General of Health Services (DGHS). A senior MCI official said, "Those candidates who do not want to do a rural posting would be free to practice MBBS after they get their degrees following the internship. The MBBS course structure and duration will remain the same. The only change is one year rural posting will be made the eligibility condition for those wanting to pursue MD and MS." Earlier, there was a proposal to increase the current duration of the MBBS course by one year and use the additional year for a village posting of MBBS students. The proposal wasn't found feasible as it meant that students would only get provisional MBBS degrees at the completion of their internship and final MBBS degrees only after the completion of a rural posting. Every year, close to 40,000 students graduate with MBBS and most of them wish to pursue post graduation. The move, skeptics say, may hit students' zeal to go in for higher medical education unless suitably modified to reward them for undertaking a rural posting. MCI sources said MBBS doctors going for rural posting from the next year may be given financial incentives but that component of the proposal is yet to be finalized.

Apollo docs booked in 2009 'negligence' case

2013-06-18T17:17:00.002+05:30

Please read http://www.aalatimes.com/wp-content/uploads/2013/06/order780.pdf From http://www.deccanherald.com/content/338854/apollo-docs-booked-2009-039negligence039.html Six doctors of Apollo Hospital have been booked for causing death by negligence of a 70-year-old man admitted to the hospital in south-east Delhi’s Sarita Vihar in 2009, police said on Friday. “We have examined the case in detail and found that there was definitely no medical negligence. The patient had multiple pre-existing co-morbid conditions including uncontrolled diabetes, heart and kidney disease. Appropriate medical care and treatment was provided by a competent multi-disciplinary team of doctors and support staff but the patient, sadly, succumbed to his illness. The allegations have no merit whatsoever, and it is very unfortunate that attempts are being made by the complainant to defame and harass the hospital and its doctors. Apollo Hospitals is committed to providing the best care to its patients,” said a statement by the hospital late on Friday night. The Delhi Medical Council also said that according to its report, the patient was duly treated as per established norms. A case was filed with Sarita Vihar police station on May 31 over an order of Saket court after a complaint by Sarita Vihar-resident Meenakshi Jain. The doctors named in the case are Saket Goel, Vinayak Agarwal, S Wangnoo, Rajesh Chawla, Sanjeev Jasuja and S Chatterjee. The hospital has also been named as one of the accused in the complaint. Meenakshi’s father Pawan Kumar Jain was admitted to the hospital on March 6, 2009 with a provincial diagnosis of perianal abscess. Pawan was a known case of diabetes, hypertension and coronary artery disease, for which he was on medication. “It is alleged that after remaining in the hospital for 27 days, Pawan died on April 1, 2009, due to gross, grave, reckless and culpable criminal negligence of the accused, who had vision, reasonable foresight and complete knowledge and awareness of the consequences of their acts, but showed thorough disregard and indifference,” a police officer said quoting Meenakshi’s allegations. Meenakshi alleges that there was unreasonable delay in conducting surgery for drainage of perianal abscess. “It is claimed that the surgery was performed after an unjustified delay of 20 hours from the time of admission,” the officer added. It is further alleged that cardio-protective medications were discontinued prior to surgery and were not restarted. There was discontinuation of cardiac medicines by the doctors, which were regularly taken by Pawan and which were essential for his cardiac health. “The medicines, especially Tab Deplatt-A, were discontinued and never started again. This contributed to my father suffering a heart attack on March, 27, 2009,” Meenakshi alleges. It is also alleged that anaemia was not corrected on time which proved hazardous for Pawan. It is further alleged that hyponatremia, very low albumin and plasma proteins and blood gases were not managed at all. Meenakshi alleged that had proper diagnosis been made on March 26, 2009 or the morning of March 27, 2009, the heart attack could have been prevented. The hospital and the doctors now face charges under sections 304-A (causing death by negligence), 465 (forgery) and 471 (using forged document as genuine). Dr Goel, however, said Pawan was in sepsis at the time of admission. He told the Delhi Medical Council that he had planned a surgery, but in addition to perianal abscess, Pawan had other co-morbidities which needed to be stabilised. “The patient was evaluated by the cardiologist, nephrologist and anesthetist. After the patient had been pre-operatively evaluated, stabilised, he was taken up for surgery under high-risk consent on March 7, 2009,” Dr Goel told DMC. Debridement was personally done by Dr Goel everyday till March 26, 2009 after which Pawan was seen by Dr Govil.

Only way to avoid gangrene is not by giving injections

2013-06-18T17:16:00.000+05:30

From http://www.deccanherald.com/content/337229/manipal-hospital-pay-rs-51l.html Manipal Hospital Bangalore and its four doctors have been directed by the apex consumer forum to pay Rs 5.1 lakh towards rehabilitation of a minor girl whose right forearm was amputated due to their negligence. The National Consumer Disputes Redressal Commission (NCDRC) observed that due to the medical negligence of the hospital and its doctors - pediatrician Meera Ramakrishnan, vascular surgeon Vasudeva Rao, consultant paediatric Arvind Shenoy and paediatric surgeon Jayanth Iyengar - "the child has to spend the entire life without her right forearm". "... doctors of the hospital have not able to explain how the gangrene of right hand occurred. Therefore, in the instant case medical negligence is clearly established and for which opposite parties (hospital and the doctors) are liable. "Opposite party 1 (Manipal hospital) being employer is vicariously liable for negligence committed by the doctors and the nursing staff working in the hospital. ... the child has to spend the entire life without her right forearm," a bench presided by Justice Ashok Bhan said. The bench directed the hospital and doctors to jointly pay Rs 5,00,000 to parents of the child "for rehabilitation of baby Sandria by providing artificial limb and proper education and care" and also ordered Manipal hospital to pay Rs 10,000 as cost. The order came on the appeals filed by the parents of the child, Alfred Benedict and Rani Benedict, and the hospital and doctors, both sides challenging the order of the state commission which had directed the hospital and doctors to pay Rs 5.1 lakh as compensation to the minor girl's parents. The parents in their complaint before the Karnataka state commission had submitted that in August 2002 they had taken their then two-year-old daughter, who was suffering from cold and cough, to Dr Shenoy who had advised them to admit the child in Manipal Hospital Bangalore. Thereafter, she was diagnosed as suffering from pneumonia and was given intravenous fluids by inserting a needle into her right arm, they said. The parents had alleged that due to the doctors' negligence in inserting the needle into the child's arm, blood supply was blocked due to which gangrene developed and resulted in the amputation of the right forearm. While the parents had sought enhancement of compensation from the NCDRC, Manipal Hospital and the doctors contended they had not been negligent in their treatment of the child and the unfortunate complication occurred as the patient who was suffering from pneumonia had gone into septic shock. The NCDRC, however, rejected the hospital's contention, saying "it appears they (doctors) have not followed the standards of medical practice" while treating the patient.