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Judgment
Mr. Justice K. Chandru, J.—The three petitioners have come forward to file these Writ Petitions seeking for a direction in the nature of Writ
of declaration declaring that the qualification possessed by them was sufficient to hold the post of Professor/Head of Department in the respective
departments in the respective Private Medical College, in which they are working. W.P.No. 7718 of 2007 is filed by the petitioner, who is
working in the Meenakshi Dental College, Alapakkam, for a prayer that the qualification of M.Sc. (Microbiology) with M.B.B.S is a sufficient
qualification for holding the post of Professor/Head of the Department of Microbiology.
W.P.No. 7719 of 2007 is filed by the petitioner, who is working in the Institute of Road Transport, Perundurai Medical College, seeking for a
declaration that M.Sc. (Physiology) with M.B.B.S degree is a sufficient qualification for holding the post of Professor/Head of Department of
Physiology in the medical college.
The petitioner in W.P.No. 7720 of 2007 is employed in Pondicherry Institute of Medical Science as a Professor of Physiology and she wants a
declaration that the possession of M.Sc. (Physiology) with M.B.B.S is a sufficient qualification to hold the post of Professor/Head of the
Department of Physiology in any Private Medical College in India.
These three Writ Petitions were admitted on 01.03.2007. Pending the Writ Petitions, no interim relief was sought for. On notice from this Court,
the Medical Council of India has filed a counter affidavit labeled as short reply affidavit dated 14.09.2007.
The contention made by the petitioners was that earlier the association teaching staff with M.Sc. working in the faculty of medicine for Science
graduates in Tamil Nadu Medical Service which is the registered society with registration No. 34/77 filed a Writ Petition before this Court being
W.P.No. 3360 of 1988 seeking for the prayer to set aside the Government order dated 19.10.1987 and to refix their salary in the post of non-
medical assistant professors working under the Tamil Nadu Medical Service. The said Writ Petition consequent upon the constitution of the
Tribunal was transferred to the State Administrative Tribunal and taken up as T.A.No. 475 of 1991. That transfer application was disposed of by
an order dated 13.04.1994. In that order in the absence of candidates being available for non-clinical categories a direction was given to treat
them as if they are having qualification for holding the post and also to revise the salary. Aggrieved by the same, the State filed a SLP before the
Supreme Court in SLP Nos.344 and 345 of 1995.
The Supreme Court at the admission stage dismissed the SLPs on 07.12.1995. It was also contended by them that the possession of M.Sc
degree with M.B.B.S is a sufficient qualification for holding the post of Professor/Head of the Department and the respondents cannot refuse to
approve their qualifications as not sufficient for aiding the department.
On notice from this Court in the counter affidavit filed by the Medical Council of India it was stated that even if a person by virtue of a Tribunal
order is entitled to the post of Assistant Professor that by itself will not enable the person for further promotion to the post of Professor/Head of
the Department of the said subject. It is further stated that only to the extent of 30% in Microbiology department if suitable persons with medical
degrees were not available, candidates with non-medical degrees will be appointed. Only for a limited purpose, M.Sc in microbiology or M.Sc.
Phsiology as the case may be, (which is a non-medical subject) are eligible for appointment. For any higher post by way of promotion candidates
must have M.Sc and Ph.D degree both from the medical faculty in the subject as per the regulations framed by the Medical Council of India
known as the Medical Council of India Teachers Eligibility Qualification Regulation. It was contended that the Medical Council of India alone has
jurisdiction to frame the regulations. With reference to qualifications for various teaching post in the medical colleges and any other direction or
order passed which are inconsistent with the regulation framed by the Medical Council of India will be void and inoperative. In this context, the
reference was also made to the judgment of the Supreme Court in the following cases:
(i) State of Punjab Vs. Dayanand Medical College and Hospital and Others, .
(ii) The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, .
(iii) Harish Verma and Others Vs. Ajay Srivastava and Another,
for the purpose of contending that the regulation framed by the Medical Council of India are binding on all authorities. It is also stated that the
regulation framed by the Medical Council of India in the year 1998 with reference to the qualification required reads as follows:
In the Department of Anatomy, physiology, Biochemistry, Pharmacology and Microbiology, non medical teachers may be appointed to the extent
of 30% of the total number of posts in the Department. A non-medical approved medical M.SC. qualification for appointment as lecturers in the
subject concerned but for promotion to higher teaching posts, a candidate must acquire the Ph.D. Degree in the subject...... However, the
department of Biochemistry, non medical teachers may be appointed to the extent of 50% of the total number of posts in the Department.
For the purpose of Professor in microbiology, the qualification is as follows:
MICROBIOLOGY
(A) Professor M.D. (Bacteriology)/ M.D (i) As reader/ Associate
(Microbiology)/ MBBS with M.Sc. professor in Microbiology for
(Med-Bacteriology)/ M.Sc. (Med. four years in a recognized
Microbiology)/ Ph.D (Med- medical college.
Bacteriology)/ M.Sc. (Med.-Bect.)
with Ph.D.
(Med- Bacteriology)/ M.Sc. (Med- Desirable
Bacteriology) with D.SC (Med.-
Bacteriology)/ M.Sc. (Med- (ii) Minimum of four research
Microbiology) withPh.D (Med. publications indexed in index
Microbiology)/ M.Sc. (Med. medicus/ national/ Journal and
Microbiology) with D.Sc. (Med. one research publications in
Microbiology) international journal.
It was further contended that the Supreme Court in the judgment reported in Dr Preeti Srivastava and Another Vs. State of M.P. and Others,
had categorically held that any regulation made by any other authority which are repugnant to Medical Council of India regulation are not valid and
the Medical Council of India in terms of Entry 66 List I Schedule VII of the Constitution alone can frame such regulation. Therefore, they prayed
for dismissal of the Writ Petition.
In this context, reference was made to the judgment of the Tribunal for which reliance was placed upon in T.A.No. 475 of 1991. There was no
reference to any regulation framed by Medical Council of India which is occupying the field. In the absence of it the Tribunal without deciding the
matter in a large canvass and found it was only an ordinary service matter. In the basis of it, no relief can be granted to the petitioneRs. Though it
was contended that the Government of India, Ministry of Health and Family Welfare by a communication dated 25.03.2008 had addressed to the
Universities and Health Secretaries of various Government stating that the persons who are appointed in the pre-clinical specialties such as
Anatomy, Bio-chemistry, Physiology etc., on the basis of the experience and qualification prescribed under the Medical Council of India
Regulations, 1971, will be allowed to function as medical teachers and will be granted further promotion even though they do not fulfill the Medical
Council of India Regulations, 1998.
This Court is unable to agree to give a direction for implementation to the above extent. The said communication is relevant for the purpose of
their continuance in service but so far as Medical Council of India Regulations, 1998 is concerned, the same has prescribed the specific
qualification for holding the post of Professor/Head of the Department. The attempt made by the petitioners seeking for a declaration from this
Court is clearly impermissible. On the contrary, in a latest judgment, a Division Bench of this Court presided by the Honorable Chief Justice Mr.
M.Y. Equal vide judgment dated 16.11.2011 in the case of The Tamil Nadu Dr. M.G.R. Medical University, Rep. by its Registrar, Chennai-32
Vs The Controller of Examinations, The Tamil Nadu Dr. M.G.R. Medical University, Rep. by its Registrar, Chennai-32 dealt with the scope of
Medical Council of India regulations vis-�-vis the university regulation framed by Dr. M.G.R University and after reviewing various previous
case laws on the subject, in paragraph Nos.36 and 41, it was observed as follows:
Thus, the Hon''ble Supreme Court held that by prescribing eligibility criteria for admission to institution of higher education, the State/University
cannot lower the norms laid down by the Central body and prescribing higher standards for admission by laying down qualification in addition to or
higher than prescribed by the Central body will not be considered to adversely affect the standards laid down by the Central body.
In view of the above, we have no hesitation to hold that the impugned guidelines issued by the appellant University is inconsistent with
Regulation 12(4) of the MCI Regulation and the same cannot be stated to be prescribing higher standards. Accordingly question No. 1 is decided
against the appellant University.
In the light of the same, the prayer made by the petitioners cannot be countenanced by this Court. Hence, these Writ Petitions stand dismissed