Hon. Mrs. Jayashree Tiwari, J.
1. Heard Shri Ravi Kant, Senior Counsel assisted by Shri S.A. Murtaza for the petitioners. Smt. Sunita Agrawal appears for Aligarh Muslim University, Aligarh. Shri M.C. Tripathi appears for respondent No.3. Shri B.D. Mandhyan, Senior Counsel assisted by Shri Satish Mandhyan appears for the respondent No.4. Shri Ashok Khare, Senior Counsel assisted by Shri Faheem Ahmad appears for the respondent No.5.
2. Dr. (Mrs.) Shagupta Moin (petitioner No.1) and Dr. Abdul Faiz Faizy (petitioner No.2) are M.B.B.S. and M.D. in Bio-Chemistry from the Department of Bio-Chemistry, Faculty of Medicine, Jawahar Lal Nehru Medical College, Aligarh of the Aligarh Muslim University, Aligarh. They were appointed as Lecturers in the same Faculty of the Medical College and are presently serving as Readers (now designated as Associate Professor) in Bio-Chemistry in the same department. Their degrees are known as Degrees in Medical Bio-Chemistry.
3. Dr. M.U. Siddhiqui-respondent No.2; Dr. Khushtar A. Salman-respondent No.3; Najmul Islam-respondent No.4 and Dr. Khursheed Alam-respondent No.5, are M.Sc. and Ph.D. from the Faculty of Life Sciences of the same University. They are also teaching as Readers (now designated as Associate Professors) in the same Faculty of Medicine in the Medical College. They are seniors to the petitioners and have at some point of time taught them, when the petitioners were pursuing the M.D. Course in Bio-Chemistry.
4. The dispute in the present case between the petitioners and respondent Nos.2 to 5 is for the appointment on the two posts of Professors in the same Department of Bio-Chemistry, Faculty of Medicine, Jawahar Lal Nehru Medical College, Aligarh, initiated in pursuance of the Advertisement dated 16.11.2009 issued by the University. The petitioners filed the writ petition after the advertisement was issued and applications were invited, to restrain the University from inviting respondent Nos.2 to 5 for interview for appointment, and to act strictly in accordance with the Medical Council of India Regulations, 1998. It is alleged that in accordance with MCI Regulations, 1998, the respondent Nos.2 to 5 are not eligible for the post of Professors as they do not possess essential qualifications prescribed in the advertisement namely:-
"FACULTY OF MEDICINE
134. Professors of Bio-Chemistry, Dept of Bio-Chemistry, Faculty of Medicine (2) QUALIFICATIONS-ESSENTIAL:
M.D. (Bio-Chemistry)/ M.B.B.S. with M.Sc. (Medical Bio-Chemistry)/ M.Sc. (Med. Biochem) with Ph.D. (Medical Bio-Chemistry)/ M.Sc. (Med. Biochem.) with D.Sc. (Medical Bio-Chemistry) TEACHING/ RESEARCH EXPERIENCE:
As a Reader/ Associate Professor in Bio-Chemistry for 4 years in a recognised Medical College Desirable:
Minimum of four Research publications indexed in Index Medicus/ National Journal and one research publication in International Journal."
5. Shri Ravi Kant, learned counsel appearing for the petitioners submits that the Medical Council of India (MCI) by its letter dated 23.9.2008, informed the petitioners that the minimum qualification for teachers in medical institutions is M.Sc. (Medical Bio-Chemistry) with Ph.D. (Medical Bio-Chemistry), with prescribed teaching experience of 4 years as Reader/ Associate Professor in Bio-Chemistry, in a recognised Medical College. The petitioners made representation dated 26.6.2009, 10.10.2009 and 15.10.2009, to the University requesting that the University may call for interviews only those candidates, who possess the minimum qualifications prescribed by M.C.I. In their representation dated 15.10.2009 sent to the Deputy Registrar, Selection Committee (Teaching) of the University, the petitioners stated that while giving recognition to the M.D. Course of the Department, the M.C.I. restricted the number of admissions to only 2 students per year prospectively, commensurate with availability of P.G. teachers. The M.C.I. in its wisdom did not recognise any non-medical Readers/ Professors as P.G. teachers due to lack of prescribed minimum essential qualifications. The non-medical Readers in the department with only M.Sc. Bio-Chemistry from faculty of Life Science, and Ph.D. from Faculty of Medicine do not possess qualifications recognised by M.C.I. for appointment as Professors, and thus they should not be called for interviews.
6. The petitioners have called upon the Court to decide as to whether the Masters degree in non-medical Bio-Chemistry from Department of Life Sciences is sufficient qualifications for appointment as Professors, and whether for this purpose the qualifications notified by the Medical Council of India are binding upon the University.
7. It is submitted by Shri Ravi Kant that the Executive Council of the University has adopted the academic qualifications prescribed by M.C.I. Regulations, 1998 in the leter of M.C.I. dated 28.1.1999 through its Resolution dated 9.3.2000 is fully financed and controlled by the Central Government. It is an instrumentality of the State and is bound by M.C.I. Regulations. Apprehending that the respondent Nos.2 to 5 will be called for interviews, they prayed for interim directions. On 9.3.2010 the Court directed that the interviews shall be held and the result will also be declared, but the same shall not be given effect till the next date of listing.
8. Shri Ravi Kant has relied upon the judgment of the Supreme Court in Medical Council of India Vs. State of Karnataka, (1998) 6 SCC 131; Dr. Bhanu Prasad Panda Vs. Chancellor, Sambalpur University & Ors., (2001) 8 SCC 532; Harish Verma & Ors. Vs. Ajay Srivastava & Anr., (2003) 8 SCC 69; Pramod Kumar Vs. U.P. Secondary Education Services Commission & Ors., (2008) 7 SCC 153 and Mohd. Sohrab Khan Vs. Aligarh Muslim University & Ors., (2009) 4 SCC 555 in support of his submissions that the Medical Council of India established under the Indian Medical Council Act, 1956 has powers to frame Regulations under Section 33, which have statutory force. The Act is relatable to Entry 66 of List-1 (Union List). It prevails over any State enactment relatable to Entry 25 or 26 of List-III (concurrent list). The Regulations framed under Section 33 of the Medical Council Act with previous sanction of the Central Government are statutory in nature. They are framed to carry out the purposes of the Act and for various other purposes mentioned in Section 33 of the Act. It is not permissible for the University authorities to deviate from the prescribed educational qualifications for recruitment in the University. If a person does not possess the minimum prescribed educational qualifications, the Selection Committee, even though its opinion can be said to be final, cannot appoint him. The Selection Committee cannot act arbitrarily and change the criteria/ qualifications in the selection process, midstream. The lack of essential qualification is an illegality, which cannot be cured. Table-1 of Medical Council of India prescribes "medical qualifications" for teachers in Medical Institutes vide Regulations made from time to time under Section 33 of the Medical Council of India Act, 1956. The M.C.I. Regulations of 1998 prescribe the qualifications and same qualifications have been notified in the advertisement. These include M.D. (Bio-Chemistry)/ MBBS, with M.Sc. (Medical Bio-Chemistry), M.Sc. (Medical Bio-Chemistry) with P.Hd. (Medical Bio-Chemistry) or M.Sc. (Medical Bio-Chemistry) with D.Sc. (Medical Bio-Chemistry) as essential academic qualifications. The respondent Nos.2 to 5 do not have M.B.B.S. as their qualifications and that their degrees in M.Sc. (Bio-Chemistry) are from the Department of Life Sciences. These are not the degrees in Medical Bio-Chemistry. The respondent Nos.2 to 5, therefore, are not eligible either according to the Regulations 1998 or the advertisement. The Selection Committee does not possess any power to relax or waive essential qualifications prescribed by Statute and notified by advertisement.
9. Smt. Sunita Agrawal appears for the University. She has relied upon letter of Joint Secretary, M.C.I. dated 10.2.1999; the Regulations of 1998 framed by M.C.I. pertaining to minimum qualifications for teachers in Medical Education; letter of M.C.I. dated 7.6.2005 and the communication of the Ministry of Health and Family Affairs, Government of India under which M.C.I. functions dated 25th March, 2008, in submitting that the nomenclature of subject in the teaching specialty in the M.C.I. Regulations, 1998, is Bio-Chemistry and not Medical Bio-Chemistry. Since no university in the country awards M.Sc. in Medical Bio-Chemistry, the necessity of qualifications in Medical Bio-Chemistry can be waived, and M.Sc. in other related specialty like Zoology and Botany can be considered as acceptable qualifications. The teachers, who have already worked as medical teachers in the specialty of Bio-Chemistry or other pre-clinical specialties on the basis of their M.Sc./ Ph.D. qualifications, as per Medical Council of India Teachers Eligibility Qualifications Regulations, 1971, represented to the Government of India. On these representations the Government of India has decided that those teachers, who were appointed as medical teachers on the basis of M.C.I. Teachers Eligibility Qualifications Regulations of 1971, and have worked during the period, when M.C.I. Regulations of 1971, were in vogue should not be disqualified as medical teachers and should not be denied promotion to the higher posts merely on the ground that they do not fulfill the criteria prescribed by M.C.I. in its recommendations in 1974, 1977, 1982, 1983, 1989 and 1995. Due to shortage of faculty in pre-clinical subjects, pending corresponding amendment in 1998 Regulations, the teachers appointed in non-clinical specialties such as Anatomy, Bio-Chemistry and Physiology, their qualifications and experience prescribed by M.C.I. Regulations of 1971, were decided to be allowed to continue to function as Medical Teachers and shall be granted further promotions even though they do not fulfill the criteria prescribed in the M.C.I. Regulations of 1998.
10. Smt. Sunita Agrawal submits that in response to Advertisement No.2 of 2009, eight applications were received for the post of Professor in Bio-Chemistry. The petitioners along with respondent Nos.2 to 5 were found to be eligible. The respondent Nos.2 to 5 were admitted to M.Phil./Ph.D. Programme in the faculty of Medicine of AMU on the basis of possessing the degree of M.Sc. (Bio-Chemistry). It was recognised as sufficient qualification for their admissions to M.Phil./Ph.D. Programme by the Board of Studies in the Department. The Committee of Advance Studies and Research, Faculty of Medicine consists of high officials approved by the Academic Council of the University. The respondent Nos.2 to 5 are teachers in the Department of Bio-Chemistry in the same Medical College of the Aligarh Muslim University, for almost more than 17 years. They were appointed to the teaching position much earlier to enforcement of M.C.I. Regulations, 1998, and thus they cannot be denied right of promotion, which is a condition of their service.
11. Smt. Sunita Agrawal states that it is incorrect to suggest that the advertisement issued in 2006 was aborted because it did not specify essential qualifications. No selection committee could take place in pursuance to advertisement in the year 2006 and since its life had expired, the posts were re-advertised on 16.11.2009. The petitioners were informed with the detailed facts in pursuance to their application under R.T.I. Act. The University has treated respondent Nos.2 to 5 possessing Ph.D. degree in Bio-Chemistry from Faculty of Medicine, Aligarh Muslim University, as eligible being qualified for appointment to the post of Professor. They posses the minimum essential qualifications and have teaching experience of more than 15 years in the same Department of Bio-Chemistry, Faculty of Medicine of the University.
12. In the counter affidavit of Dr. Khursheed Alam-respondent No.5 represented by Shri Ashok Khare, Sr. Advocate assisted by Shri Faheem Ahmed, it is stated that M.D. Degree in Bio-Chemistry possessed by the two petitioners, was awarded by the University to students of Jawahar Lal Nehru Medical College, Aligarh is not recognised, till date, by the Medical Council of India. The matter is still pending before the Central Government. With regard to M.D. Course of Bio-Chemistry offered by the Jawahar Lal Nehru Medical College, Aligarh Muslim University, the inspections were conducted by the M.C.I. in June, 2009. The M.C.I. in its meeting dated 18.11.2009 has recommended grant of recognition to M.D. Bio-Chemistry and inclusion of degree in the First Schedule of Indian Medical Council Act, 1956. The Asstt. Secretary, Medical Council of India has by his letter dated 20.1.2010 addressed to the Central Government forwarded the recommendations with the Inspectors' Report of June, 2009. The M.D. Bio-Chemistry degree possessed by the petitioners was thus not a recognised qualification, when they passed it in 1998 and 1991 respectively. They are not eligible, as their qualifications are not recognised qualifications.
13. Shri Ashok Khare submits that Dr. Khursheed Alam-respondent No.5 is M.Sc. (Bio-Chemistry) from the Faculty of Life Science, A.M.U. He also possesses M.Phil. and Doctorate in Bio-Chemistry from Medical College, as also Doctorate in Bio-Chemistry from Faculty of Medicine of the Aligarh Muslim University. Under Table-1 of the M.C.I. Regulations, 1998 the degree referred to as Master of Science/ Medical (Bio-Chemistry) has been specified. No other details have been specified for such a course to make it functional. All the Masters of Science degrees in Medical Bio-Chemistry are awarded in the country, not by any reputed colleges/ university except only one or two. The Degree of Master of Science with Medical Bio-Chemistry was approved by the University Grants Commission for the first time by notifications of April, 2009, published in Gazette of India on 23-29.5.2009. He submits that till 29.5.2009 no decree with the nomenclature of Master of Science in Medical-Bio-Chemistry had any legal sanctity. He relies upon the notification of the University Grants Commission bearing No.F.1-52/1997 (CPT-2), and the M.Sc. Semester syllabus of the year 2003-04 of the Department of Bio-Chemistry, Faculty of Life Science, A.M.U. Aligarh, to be contrasted with the syllabus of Master of Science in Medical Bio-Chemistry awarded by Maharashtra University of Health Science, Nasik. The two courses have similar syllabus. Shri Ashok Khare submits that apart from M.Sc. the respondent No.5 has also passed M.Phil. in Bio-Chemistry and has been conferred Doctorate in Bio-Chemistry of the same faculty of the Medical College of the University.
14. Shri B.D. Mandhyan appearing for Dr. Najmul Islam-respondent No.4 submits that the respondent Nos.4 and 5, who have been selected for appointment as Professors as well as respondent No.3 were appointed as Lecturers in 1993 as they possess Ph.D. degree in Bio-Chemistry from the same faculty of the University, which was the requirement as per the Medical Council of India Regulations, 1989, in vogue at that time and continued upto the date when the M.C.I. Regulations, 1998 were enforced. The M.C.I. Regulations of 1998 prescribes M.Sc. in Medical Bio-Chemistry as essential qualification for teaching appointments, does not affect the teachers, who got permanent appointment prior to 1998. Prior to 2009 no University in the country could have awarded M.Sc. Medical Bio-Chemistry Degree, because it was not permitted by the University Grants Commission. It was permitted only after the specifications of degrees (M.Sc. Bio-Chemistry) was included at Item No.25 in the notifications published in the Gazette of India dated May 23rd-May29th, 2009 circulated to all Vice Chancellors of the Universities by the Joint Secretary, U.G.C. on 11th November, 2009.
15. Shri B.D. Mandhyan submits that Aligarh Muslim University was established by Act of Parliament i.e. Act No.XL of 1920 amended by Aligarh Muslim University Amendment Act, 1981 (Act 62 of 1981). Section 6 of the A.M.U. Act defines recognition of degrees of the University. If the nomenclature of any degree has been subsequently altered by the Medical Council of India and adopted by authorities concerned, then the qualifications by both the nomenclatures under the M.C.I's letter dated 7.6.2005 shall be deemed to be recognised by the Council. He submits that both the nomenclatures namely Bio-Chemistry and Medical Bio-Chemistry are synonymous and that individuals holding the qualifications in Bio-Chemistry are fully eligible for any teaching appointments in medical institutions.
16. It is not denied that respondent Nos.2 to 5 were qualified for appointment as Lecturers and have served for about 17 years as Lecturers and Readers in the same faculty in Jawahar Lal Nehru Medical College of the Aligarh Muslim University. They have infact taught the petitioners the subject of Medical Bio-Chemistry. Though they are M.Sc. in Bio-Chemistry from Faculty of Life Sciences, they have obtained M.Phil. degree from the Faculty of Medicine, Jawahar Lal Nehru Medical College of Aligarh Muslim University and hold doctorate degrees in Bio-Chemistry pursuing their studies in the Medical Faculty. The degree of M.Sc. (Medical Bio-Chemistry) was offered by only a few universities in the country, and is now recognised as degree by University Grants Commission, by its notification dated May 23rd-May29th, 2009. The course-curriculum for M.Sc. (Bio-Chemistry) and M.Sc. (Medical Bio-Chemistry) is the same. The Selection Committee had shortlisted the respondent Nos.2, 3, 4 and 5 along with the petitioners as eligible for calling them for interview for the post of Professors.
17. In Basavaiah Vs. Dr. H.L. Ramesh & Ors., Civil Appeal No.6057 of 2010, the Supreme Court in its judgment dated 29th July, 2010 considering the question of appointment of Dr. Basavaiah and Dr. Manjunath set aside by the High Court on the ground that they did not hold requisite experience held; "It would normally be prudent, wholesome and safe for the courts to leave the decision to the academicians and experts. As a matter of principle, the Courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realize and appreciate its constraints and limitations in academic matters." The Supreme Court relied upon Dr. J.P. Kulshrestha & Ors. Vs. Chancellor, Allahabad University & Ors., (1980 3 SCC 418; Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupeshkumar Sheth & Ors., (1984) 4 SCC 27; Neelima Misra Vs. Harinder Kaur Paintal & Ors., (1990) 2 SCC 746; Bhushan Uttam Khare Vs. Dean, B.J. Medical College & Ors., (1992) 2 SCC 220; Dalpat Abasaheb Solunke & Ors. Vs. Dr. B.S. Mahajan & Ors., (1990) 1 SCC 305; the Chancellor & Anr. Vs. Dr. Bijayananda Kar & Ors., (1994) 1 SCC 169; Dental Council of India Vs. Subharti K.K.B. Charitable Trust & Anr., (2001) 5 SCC 486; Medical Council of India Vs. Sarang & Ors., (2001) 8 SCC 427; B.C. Mylarappa alias Dr. Chikkamylarappa Vs. Dr. R. Venkatasubbaiah & Ors., (2008) 14 SCC 306; Rajbit Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University, Sirsa & Anr., (2008) 9 SCC 284 and All India Council for Technical Education Vs. Surinder Kumar Dhawan & Ors., (2009) 11 SCC 726, in which it has been consistently held that the Courts should not sit in appeal over the opinion of the experts. It is a rule of prudence that the courts should hesitate to dislodge decisions of academic bodies. The Court should not normally interfere or interpret the Rules and should instead leave the matter to the experts in the field.
18. The Punjab and Haryana High Court at Chandigarh in CWP No.4698 CAT of 2004, Medical Council of India Vs. Union of India etc. decided on 13th February, 2009 considered the same questions relating to qualifications of appointment of Senior Lecturer in Micro-Biology, and did not accept the argument that Dr. Nalini Agnihotri, Sr. Lecturer (Micro-Biology) appointed on contract on 18.3.1997 lacks essential qualifications namely that she did not have M.Sc. in Medical Bio-Chemistry for appointment. Hon'ble Ms. Justice Nirmaljit Kaur deciding the case relied upon the admitted position that the petitioners were eligible under the Punjab Medical Education Clause (i) Rule 1971; all the contesting respondents were M.Sc. from non-medical institutes but Ph.D. from medical institute that is P.G.I. and all of them were eligible and were appointed as teachers under the qualifications prescribed by M.C.I. Regulations of 1971. They have rendered more than 10 years of service in Chandigarh Medical College and also sufficient service in P.G.I. as demonstrators or Research Scholars. They could, therefore, not be made ineligible on the basis of M.C.I. Regulations of 1998, which has changed the qualifications of M.Sc. (Bio-Chemistry) to M.Sc. (Medical Bio-Chemistry). Learned judge relied upon the decisions taken by the Union of India referred to as above by which the representations of eligibility qualifications of the non-medical teachers were considered and it was decided by the Central Government to rectify the arrangement by amending the M.C.I. Regulations, 1998 suitably. In para 4 of the letter the Central Government communicated its decision that pending corresponding amendment to 1998 Regulations, the teachers appointed in non-clinical specialty viz. Anatomy, Bio-Chemistry, Physiology etc. on the basis of qualifications and experience prescribed in the M.C.I. Regulations of 1971 shall be allowed to continue to function as medical teachers and shall be granted further promotions even though these teachers do not fulfill the criteria prescribed in the M.C.I. Regulations of 1998.
19. The Government of India is the appropriate authority to approve the Regulations framed under Section 33 of the Indian Medical Council Act, 1956. The previous sanction of the Central Government is mandatory and thus the Central Government could clarify these regulations, as it has done in deciding the representations of teachers in non-clinical subjects, appointed in terms of M.C.I. Regulations of 1971, if they visit undue hardship to any category of persons.
20. The respondent Nos.2 to 5 have obtained their M.Phil. and Ph.D. degrees in Bio-Chemistry from the Faculty of Medicine of the same college of the University. They have teaching experience of more than 15 years in the same faculty, and have infact taught the petitioners the same subject as students of M.D. in Medical Bio-Chemistry. The decision taken by the Selection Committee to treat their qualifications equivalent to the qualifications in Medical Bio-Chemistry, thus does not require interference of the Court.
21. The writ petition is dismissed.
Dt.21.01.2011 SP/