Dr. Mahesh Prakash Shinde & Ors. v. Union of India & Ors.

13. The following contentions have been raised on behalf of appellants: 13.[1] There cannot be any retrospective operation of the letter dated 30th April, 2021 issued by the Ministry that FCPS is not equivalent to MD/MS courses. It is submitted that consequences pertaining to issues like derecognition of CPS courses have always been held to be prospective as they tend to infringe on the accrued and substantive rights of the doctors. Thus, vide notification dated 03rd February, 2010, the operation of the notification dated 02nd December, 2009 was made prospective, inasmuch as the degrees of the doctors who had joined their respective FCPS course prior to 02nd December, 2009, would continue to be recognized even though they would complete their 3 years FCPS course much after 02nd December, 2009 by which notification the Central Government de-recognized the qualifications issued by CPS, Mumbai. Reliance is placed upon the Division Bench judgment dated 28th August, 2012 of High Court of Bombay in Writ Petition

(L) No. 1711/2012, Dr. Hindustanwala Mohd. Adnan Vs. Union of India.

13.[2] Doctors who had joined the course after 02nd December, 2009 when the Central Government had derecognized the qualifications issued by CPS, Mumbai, became eligible for sitting in the DNB final examination after their LPA 15/2023 & other connected matters respective FCPS courses were given retrospective recognition from 2018. 13.[3] Union of India vide its letter dated 18th October, 2022 has granted recognition to the degrees of the doctors who had joined their 2 years diploma course after the issuance of the Gazette Notification dated 17th October, 2017 and before the issuance of Gazette Notification dated 22nd January, 2018, vide which their 2 years diploma courses stood derecognized. Reliance is placed upon judgments of High Court of Bombay in W.P.(C) 4235/2023, Aasawari Kiran Purohit and Others Vs. Government of India and Others and W.P.(C) 5343/2018, Anita Kishanrao Videkar Vs. Union of India and Others. 13.[4] The communication dated 30th April, 2021 issued by the Ministry cannot be merely clarificatory, as there was no consistent position qua the FCPS courses prior to the said communication. It is submitted that the decision as communicated vide notification dated 22nd January, 2018 is not a statute, but an executive decision. Therefore, the letter dated 30th April, 2021 cannot be taken as clarification of the earlier decision of the Central Government as contained in notification dated 22nd January, 2018. 13.[5] Till the year 2019-2020, doctors who had successfully completed their recognized FCPS course were allowed to sit in the DNB final examination and thereafter awarded a DNB Degree. 13.[6] The respondents have failed to produce a single document to show that the policy decision dated 30th April, 2021 has been taken based on a decision by the autonomous Board, “The Post Graduate Medical Education Board” (PGMEB) created as per the provisions of Section 16 of the National Medical Commission Act, 2019 (NMC Act), while exercising its powers under Section 25 of the NMC Act. No policy decision has been taken by the NMC on the equivalence of FCPS courses with their respective MD/MS counterparts. It is submitted that if a particular act is to be done in a prescribed manner under law, then it has to be done in that manner alone. Reliance is placed upon judgment of Privy Council in the case of Nazir Ahmad Vs. King Emperor, 1936 SCC OnLine PC 41. 13.[7] Equivalence for the purpose of teaching was never a bar for obtaining DNB Degrees. 13.[8] No separate infrastructure is required to be created for the appellants for taking the DNB final examination, as there are large number of other doctors who would already be taking the said examination. 13.[9] Letter dated 10th January, 2023 relied upon by respondent no.2/NMC clearly shows that the said letter relies upon meeting of PGMEB on 28th June, 2022, which is much after the letter dated 30th April, 2021 issued by the Central Government stating that FCPS qualifications are not equivalent to MD/MS courses. This shows that no procedure was followed by the respondents in terms of Section 25 of the NMC Act. Therefore, on this ground alone, the appellants ought to be allowed to sit for the DNB final examination. It is further contended that the PGMEB in its meeting dated 28th June, 2022 made observations only with regard to de-recognition of the courses of CPS, Mumbai and no recommendations in this regard were made by the PGMEB. Further, the observations made in the said Minutes of the Meeting dated 28th June, 2022 are against the tenor of the law as laid down by Supreme Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405.

13.10 It is submitted that no special equities shall be claimed by the appellants on the basis of the interim relief of taking the DNB final LPA 15/2023 & other connected matters examination, if granted by this Court, and the same shall be subject to the outcome of the present appeals.

13.11 Learned counsel appearing for appellant in LPA No. 149/2023 has strenuously argued that the appellant-doctor had joined the DrNB course in the Super Specialty of Cardiology at Apex Heart Institute, Ahmedabad after successfully clearing the NEET-SS examination. The respondent no.3/NBE by its letter dated 06th April, 2021 in terms of Minutes of the Meeting held by NBE on 24th December, 2020, informed the Ministry that CPS candidates will not be allowed to appear in DNB final examination till clarity is provided by the Ministry. Thus, respondent no.3/NBE vide its letter dated 28th March, 2022 cancelled the candidature of the appellant in the DrNB course midway while he was pursuing the 2nd year of the DrNB Cardiology course. Thus, it is contended that the DrNB final theory examinations are to be conducted from 12th October, 2023 and the appellant will be eligible to appear in the same if the thesis of the appellant is accepted/taken on record by the NBE. It is further averred that in order to submit the thesis online, a registration number has to be issued to the appellant by the NBE. It is prayed that registration number be granted to the appellant and he may be allowed to submit his thesis in order to take the final examination of DrNB. Reliance is placed upon the judgment of Supreme Court in the case of Suresh Pal and Others Vs. State of Haryana and Others, (1987) 2 SCC 445.

14. Respondent no.4/CPS, Mumbai has supported the case of the appellants and has contended that the appellants ought to be allowed to take the final examination of DNB, on the basis that similarly placed doctors had been allowed to take the said examination previously till the year 2020.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

15. On behalf of respondents nos. 1 to 3, the following submissions have been made: 15.[1] On behalf of respondent no.3/NBE it is submitted that appellants are not entitled to any interim relief. It is submitted that during the pendency of the writ petitions filed on behalf of appellants, the interim relief has been declined twice vide order dated 16th July, 2021 and 08th November, 2021 by the learned Single Judge. Further, the interim relief that was granted by the learned Single Judge vide order dated 13th April, 2022 was stayed by Division Bench vide its order dated 24th May, 2022 in LPA No. 384/2022. 15.[2] The Supreme Court has time and again cautioned on the grant of interim orders in academic matters. It is submitted that in terms of the law laid down by Courts there is no question of promissory estoppel or legitimate expectation in academic matters. 15.[3] The appellants who have taken admission in FCPS courses between 02nd December, 2009 and 22nd January, 2018, took admission in an unrecognized course. If the appellants have taken admission in FCPS courses after 22nd January, 2018, they took admission in a course which was recognized, however, was not equivalent. 15.[4] There is no interference in the degree awarded by CPS, Mumbai by way of the impugned policy of the respondents, thus, the issue of retrospective application of the policy will not arise. Additionally, the courses imparted by CPS, Mumbai and the DNB/DrNB exams conducted by NBE have no connection with each other. 15.[5] The principal submission of the appellants as regards retrospective application of the letter dated 30th April, 2021 issued by the Ministry is LPA 15/2023 & other connected matters clearly incorrect in view of the law laid down by Supreme Court in the following judgments:

(i) Punjab University Vs. Subhash Chander and Others, (1984) 3 SCC

(ii) Punjab University, Chandigarh Vs. Devjani Chakrabarti and Others,

(iii) Haryana Senior Secondary School Vs. State of Haryana and Others,

MANU/PH/2069/2020 15.[6] On behalf of respondent no.2/NMC it is submitted that mere recognition of FCPS courses does not necessarily imply equivalence with MS/MD degrees. Interim relief sought by appellants has been rejected on various previous occasions by this Court by learned Single Judge as well as coordinate Division Bench of this Court. 15.[7] As regards the submission made on behalf of appellant in LPA NO. 149/2023, it is contended that the said appellant had obtained admission in FCPS course in Medicine when the said courses were un-recognized qualifications. Therefore, appellant cannot claim for any interim relief in his favour for taking the DrNB final examination. The issue of the appellant appearing in DrNB final examination has already been decided as rejected by Division Bench of this Court in LPA No. 348/2022, whereby the Division Bench vide order dated 24th May, 2022 stayed the order dated 13th April, 2022 passed by the learned Single Judge in the writ petition, which initially permitted the petitioner to appear in the DNB/DrNB examination. 15.[8] Further, in its notification dated 22nd January, 2018 at the foot of the said notification, the Central Government had clearly mentioned that the LPA 15/2023 & other connected matters said qualifications shall not be treated as recognized medical qualification for the purpose of teaching. 15.[9] Learned counsel for respondent no.2/NMC relied upon letters dated 20th November, 2020, 31st March, 2021, 10th January, 2023 and 13th April, 2023 to contend that NMC/PGMEB had communicated its decision that all CPS courses must be de-recognized and that equivalence granted to diploma courses should be withdrawn.

15.10 On behalf of respondent no.1/Union of India, it is submitted that FCPS is not recognized as equivalent to MD/MS. The Central Government supports the case as canvassed on behalf of NBE and NMC. Learned counsel for Central Government relied upon letter dated 24th May, 2021 issued by the Ministry of Health and Family Welfare, Government of India wherein it is recorded by the Government that as per the NMC Act, 2019 the power of recognition or otherwise lies with the NMC. Hence, the NMC was requested by the Central Government to take appropriate action in this regard.

15.11 The Ministry has only clarified the position of the courses already existing by way of its letter dated 30th April, 2021. Therefore, it cannot be said that the policy of the Central Government as contained in the letter dated 30th April, 2021 was sought to be implemented retrospectively. In support of his submissions, learned counsel for respondent no.1/Union of India relied upon the judgment in the case of Puneet Sharma and Others Vs. Himachal Pradesh State Electricity Board Ltd. and Anr., 2021 SCC OnLine SC 291. COURT’S REASONING

16. We have heard learned counsel for parties and perused the record.

17. By way of the present appeals, the appellants are praying for setting aside of the impugned judgment dated 11th October, 2022 passed by the learned Single Judge thereby dismissing the writ petitions of the appellants. In the writ petitions, the appellants had sought a direction that they would be eligible for grant of DNB qualification after appearing/qualifying in DNB final examination as well as in the DNB practical examination. Appellants had also prayed in the writ petitions for a direction to the respondents to declare that the various qualifications of Fellowships of the CPS, Mumbai (FCPS) as granted by respondent no. 4/CPS, Mumbai are equivalent to their counterpart MD/MS qualifications.

18. This Court notes that by way of notifications dated 02nd December, 2009 and 03rd February, 2010, the Central Government had derecognized the qualifications issued by CPS, Mumbai by deleting these qualifications from the First Schedule of the Indian Medical Council Act, 1956 (IMC Act).

19. By way of notification dated 17th October, 2017 published in official gazette on 23rd October, 2017, the Central Government recognized 39 diploma courses conducted by CPS, Mumbai by including them in the First Schedule of the IMC Act.

20. By way of another notification dated 22nd January, 2018, the Central Government again de-recognized 36 diploma courses conducted by CPS, Mumbai by deleting them from the First Schedule of the IMC Act. However, 6 FCPS courses were inserted in the First Schedule of the IMC Act. It was clearly mentioned at the foot of the said notification that “the CPS qualifications shall not be treated as a recognized medical qualification LPA 15/2023 & other connected matters for the purpose of teaching.”

21. Upon clarifications sought by respondent no. 3/NBE, letter dated 20th November, 2020 was written by respondent no. 2/NMC in which it was clarified that there was no notification with respect to equivalence of FCPS courses with MD/MS courses and that FCPS courses are only registrable for the purpose of practice.

22. It is pertinent to note here that respondent no. 3/NBE in the meeting held on 24th December, 2020 decided that CPS candidates will not be allowed to appear in DNB final examination till clarity is provided by the Ministry. In view of the aforesaid decision, respondent no. 3/NBE issued information bulletin on 19th January, 2021 wherein in clause 4.3.[2] it was stated that candidates possessing FCPS qualifications awarded by CPS, Mumbai are not eligible to apply for DNB final examinations till such time equivalence of FCPS qualifications with their counterpart MD/MS qualifications is confirmed by the Government of India.

23. Subsequently, by communication issued by Ministry vide its letter dated 30th April, 2021 to respondent no. 3/NBE, it was stated that FCPS qualification are registrable qualifications only for the purposes of practice and not equivalent to MD/MS courses. Thus, writ petitions were filed on behalf of appellants herein challenging the aforesaid information bulletin and the communications issued by the respondents.

24. This Court notes that when the matter was listed before the learned Single Judge on 16th July, 2021, the appellants pressed for interim relief seeking permission to appear in the DNB final examinations. The said prayer of the appellants herein was rejected by the learned Single Judge vide detailed order dated 16th July, 2021.

25. Subsequently, appellants filed another application before the learned Single Judge inter-alia seeking permission to appear in the DNB final examination scheduled from 16th December, 2021 to 19th December, 2021. The learned Single Judge vide his order dated 08th November, 2021 again rejected the prayer of the appellants for any interim relief.

26. Thereafter, during the pendency of the writ petition, vide order dated 13th April, 2022, learned Single Judge permitted the appellants herein to fill up the forms for appearing in the DNB final examinations. Against the said order, respondent no. 3/NBE filed LPA No. 348/2022 before Division Bench of this Court. By its order dated 24th May, 2022, a Coordinate Bench of this Court stayed the operation of the order dated 13th April, 2022 passed by the learned Single Judge.

27. It is also relevant to note here that taking into account the stay order passed by the Division Bench by its order dated 24th May, 2022, learned Single Judge by order dated 31st May, 2022 held that no interim direction could be granted in favour of the appellants herein.

28. The stay order passed by the Division Bench continued and ultimately the said appeal was disposed of as infructous by order dated 09th November, 2022 by noting that the writ petitions had already been decided by the learned Single Judge by a common judgment dated 11th October, 2022.

29. This Court also notes that the notification dated 22nd January, 2018 issued by the Central Government wherein the Central Government derecognized 36 out of 39 diploma courses held by CPS, Mumbai, was never challenged by respondent no. 4/CPS, Mumbai. Further, the decision of respondent no. 3/NBE as recorded in the Minutes of the Meeting dated 24th December, 2020 that CPS candidates will not be allowed to appear in DNB final examinations till clarity is provided by the Ministry, was again never challenged by respondent no. 4/CPS, Mumbai. Similarly, the communication issued by Ministry to respondent no. 3/NBE vide its letter dated 30th April, 2021 stating that FCPS qualifications are registrable qualifications only for the purposes of practice and not equivalent to MD/MS courses, was also not challenged by respondent no. 4/CPS, Mumbai.

30. Recognition of a course and its equivalence to MD/MS qualification are two separate concepts. Recognition and equivalence are not the same. Merely because a course conducted by CPS, Mumbai was granted recognition does not mean that it has attained equivalence to MD/MS degree. This aspect is especially important in the light of the fact that it is the consistent stand of the NMC/PGMEB, NBE as well as the Central Government that the FCPS qualifications have never been considered as equivalent to MD/MS courses. Further, it is also relevant to note that the notification dated 22nd January, 2018 issued by the Central Government again recognising 6 FCPS qualifications clearly mentions at the footnote that the said qualifications shall not be treated as recognised medical qualification for the purpose of teaching, whereas, MD/MS qualifications are treated as recognised medical qualifications for the purpose of teaching. Therefore, the notification dated 22nd January, 2018 granting recognition to FCPS itself clearly indicated that the FCPS qualification was not equivalent to MD/MS qualifications. “Equivalent” has been defined to be equal in value, amount, function, meaning having the same or similar effect or significance, corresponding in position or function. (See: Godrej and Boyce Mfg. Co Ltd. Vs. State of Maharashtra, (2009) 5 SCC 24). Therefore, it is clear that the notification dated 22nd January, 2018 issued by the Central Government recognising the FCPS courses itself never indicated the said courses conducted by CPS, Mumbai as equivalent to MD/MS qualification.

31. It is relevant to note that no documents have been shown to this Court that equivalence was ever granted to Fellowship courses conducted by CPS, Mumbai (FCPS) or FCPS was held equivalent to MD/MS qualification at any point of time.

32. As canvassed on behalf of NBE, it is also pertinent to note that FCPS is an independent qualification as granted by CPS, Mumbai. In like manner, DNB is an independent qualification as granted by NBE. The FCPS courses as conducted by CPS, Mumbai are not continuation courses for DNB. Similarly, DNB course is not a continuity course for FCPS. The respective qualifications as conferred by CPS, Mumbai and NBE are totally independent of each other and exist in separate spheres, being disjunctive and having no connection with each other. In view of the aforesaid, the contention raised on behalf of appellants with respect to retrospective application of the letter dated 30th April, 2021 issued by the Central Government holds no water. If there was any interference in the degree awarded by CPS, Mumbai, then the issue of retrospectivity would have arisen. However, by letter dated 30th April, 2021, there is no interference to the recognition of the FCPS qualifications. The letter dated 30th April, 2021 is prima facie clarificatory in nature, since it only clarifies the position as already existing that FCPS qualifications are not equivalent to MD/MS courses. The Central Government or the NMC are not re-visiting or recalling the degrees already granted by CPS, Mumbai. Therefore, the issue of LPA 15/2023 & other connected matters retrospective application of letter dated 30th April, 2021 has wrongly been raised on behalf of the appellants.

33. Law is settled that courts cannot act as an expert in the field of education. The expert body is empowered and competent to lay down the standards to be maintained and the eligibility criteria for the award of DNB qualifications. The respondent, Union of India vide its letter dated 30th April, 2021 has stated categorically that the FCPS qualifications cannot be treated as equivalent to MD/MS qualifications, thereby clarifying its notification dated 22nd January, 2018 wherein it had been mentioned in clear terms that the FCPS qualifications shall not be treated as recognised medical qualification for the purpose of teaching.

34. It is to be noted that courts have time and again held that academic bodies are fully competent to change and modify eligibility criteria in order to ensure the maintenance of standards of education. The legality of the impugned judgment passed by the learned Single Judge and the communications dated 20th November, 2020 written by respondent no.2/NMC and letter dated 30th April, 2021 written by Ministry are yet to be adjudicated by this Court. This Court holds that there is no prima facie case in favour of the appellants that the policy of the respondents is apparently arbitrary in any manner. Since this Court is neither equipped nor has the academic or technical background to take decision in academic matters, especially when the validity of the policy of the respondents is yet to be adjudicated, no case is made out to grant any interim relief in favour of the appellants.

35. List of doctors who are pursuing the present appeals have been filed on behalf of the appellants. Perusal of the same shows that most of the LPA 15/2023 & other connected matters doctors are still pursuing the FCPS course. It is also pertinent to note that the DNB exams are held in short durations twice a year. Therefore, there is no balance of convenience in favour of the appellants for granting any interim relief. It is also pertinent to note that many of the appellants including the appellant in LPA No. 149/2023 had taken admission in the FCPS course, prior to the notification dated 22nd January, 2018 of the Central Government, when it was still unrecognised.

36. The appellants have also been unable to make out a prima facie case with respect to their contention regarding retrospective application of the communication dated 30th April, 2021. The letter dated 30th April, 2021 has only clarified the ambiguity, as sought by respondent no. 3/NBE. Thus, it has been clarified that since the notification dated 22nd January, 2018 clearly stipulated that the CPS qualifications shall not be treated as a recognised medical qualification for the purpose of teaching, hence the same are not equivalent to either MD or MS courses as the MD or MS qualifications are mandatory for teaching.

37. It may also be noted herein that the Medical Assessment & Rating Board (MARB)/National Medical Commission (NMC) by its letter dated 20th November, 2020 had indicated in clear terms that there was no notification with respect to the equivalence of FCPS awarded by CPS, Mumbai to MD/MS qualification. Letter dated 20th November, 2020 issued by MARB/NMC reads as under: “National Medical Commission Medical Assessment & Rating Board (MARB) Dy. No. 4629/21.09.2020 No. NMC/MCI-23(1)/2020-Med./24575 Date: 20-11-2020 Prof. Pawanindra Lal Executive Director National Board of Examinations Medical Enclave, Ansari Nagar, Ring Road, New Delhi 110029 Subject: Equivalence of FCPS (Medicine) and FCPS (Midwifery & Gynecology) qualification to corresponding MD/MS Courses – Regarding Sir With reference to your letter No. NBE/EDO/2020/430 dated 16.09.2020, on the subject noted above, it is to inform you that as notified under Gazette of India dated February 2018, FCPS (Midwifery & Gynecology) qualification awarded by College of Physicians and Surgeons, Mumbai, are registrable for practice but there is no notification with respect to their equivalence to MD/MS. Yours faithfully, (Dr. S. Ramji) Sr. Advisor”

38. In this regard, reference may be made to the judgment in the case of Punjab University Vs. Subhash Chander and Others[1]. In the said case, the respondent therein took admission in the MBBS course in the year 1965. Amendment was made in the calendar with regard to grant of grace marks in the year 1970. The said respondent appeared in the examination in the year

1974. The respondent therein contended that the subsequent amendment in the calendar would not be applicable to him, being retrospective in nature. However, the Supreme Court rejected the contention and held that such an amendment cannot be called retrospective. Thus, it was held as follows:

“11. We do not agree with the learned Judges of the Full Bench of the High Court that there is any element of retrospectivity in the change brought about by the addition of the exception to Rule 2.[1] of the Calendar for the year 1970. “Retrospective” according to the Shorter Oxford English Dictionary, Third Edn., in relation to Statutes, etc. means “Operative with regard to past time”. The change brought about by the addition of the exception to Rule 2.[1] does not say that it shall be operative with effect from any earlier date. It is obviously prospective. It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander, Respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating thereto which were in force at the time of his admission would continue to be applied to him until he finished his whole course. In the Calendar for 1979 we find the following at p. 1: “Notwithstanding the integrated nature of a course spread over more than one academic year, the regulations in force at the time a student joins a course shall hold good only for the examinations held during or at the end of the academic year. Nothing in these regulations shall be deemed to debar the University from amending the regulations subsequently and the amended regulations, if any, shall apply to all students whether old or new.” This is as it should be, though there was no such provision in the Calendar of 1965 when Subash Chander was admitted to the course. It is admitted that it was introduced only in 1971. The absence of such a provision in the Calendar of 1965 is of no consequence. It is necessary to note in this connection what this Court had said in regard to retrospectivity in such matters in Bishun Narain Mishra v. State of U.P. [AIR 1965 SC 1567: (1965) 1 SCR 693: (1965) 2 SCJ 718: (1966) 1 LLJ 45] It is this: “The next contention on behalf of the appellant is that the rule is retrospective and that no retrospective rule can be made. As we read the rule we do not find any retrospectivity in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would therefore apply from that date to all government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We LPA 15/2023 & other connected matters have already referred to the proviso which lays down that government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no government servant was retired before the date of the new rule i.e. May 25, 1961 and all of them were continued in service upto December 31, 1961 except those who completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore to retire on reaching the age of superannuation according to the old rule. We are, therefore, of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, cannot be struck down on the ground that it is retrospective in operation.””

39. Reference may also be made to the judgment in the case of Puneet Sharma and others Versus Himachal Pradesh State Electricity Board Ltd. and another[2], wherein with regard to clarificatory orders, it has been held that the same operate retroactively, despite their enforcement prospectively. Thus, it has been held as follows:

” …… “36. Likewise, in Manish Kumar v. Union of India, it was held that: “Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear. It may not be apposite in the case of these Statutes to paint them with the taint of retrospectivity.””

40. As regards the contention of the appellants that the policy decision dated 30th April, 2021 has not been taken based on the decision of The Post Graduate Medical Education Board, the same is vehemently denied by the respondents. Attention of this Court has been drawn to the letter dated 31st March, 2021 issued by the Postgraduate Medical Education Board (PGMEB)/National Medical Commission (NMC) wherein the PGMEB has expressed concerns with regard to the quality of training, as CPS, Mumbai did not have rigour of monitoring and supervision of the NMC in the institution approved/recognized by it. Further, the PGMEB by the said letter stated that ‘recognizing the qualifications by such organizations such as the CPS, the NMC carries the risk of being accused of promoting substandard training and specialist’. The PGMEB further strongly recommended that the qualification of CPS, Mumbai currently included in the schedules of the IMC Act, 1956 (now the NMC Act, 2019) should also be de-notified. Thus, in its letter dated 31st March, 2021, PGMEB expressed as follows: “……….The Commission was also concerned with the quality of training, as CPS did not have the rigour of monitoring and supervision of the National Medical Commission in the institutions approved/recognized by it. Further, recognizing the qualifications by such organizations such as the CPS, the NMC carries the risk of being accused of promoting substandard training and specialists. The Commission in its considered opinion did not find any merit in the request for grant of recognition to the proposed 14 courses as suggested by the Hand Holding Committee. Further, it also strongly recommends that the qualifications of the College of Physicians and Surgeons of Mumbai currently included in the Schedules of the IMC Act, 1956 (now the NMC Act 2019 ) should also be denotified.”

41. Reference may also be made to letter dated 2nd November 2017 written by erstwhile Medical Council of India to the Central Government wherein it has been categorically stated that there was neither any LPA 15/2023 & other connected matters concurrence/recommendation by the erstwhile MCI nor the statutory procedure was followed before including the degrees purportedly awarded by CPS, Mumbai in the First Schedule to the IMC Act, 1956 (now NMC Act, 2019). Thus, the said letter reads as under:- “2. In this regard, I am directed to state that Universities/Deemed Universities recognised under the UGC Act, 1956 are legally entitled to award degrees in respect of the courses conducted by the University or by the medical institutions affiliated to the University. The College of Physician and Surgeons, Bombay was established in the year 1912 by a society registered in the name of Association of College of Physician and Surgeons of Bombay under the Societies Registration Act XXI of 1860. The above-named society or CPS is neither affiliated to any University nor is it a recognized University/Deemed University itself, as per the provisions of UGC Act, 1956. Further, CPS is a society and does not have a full time teaching faculty, proper building, hospital and other infrastructural facilities for imparting teaching and training to the students etc. which is sine qua non for every institution imparting medical education. CPS is not a medical college but a registered Society. In view thereof, CPS being a Society without any proper infrastructure, teaching faculty, hospital etc required for imparting medical education is not legally entitled to conduct any medical course as well as confer any degrees whatsoever. In any event, the degree granted by the CPS cannot be treated as a recognized medical qualification. … … …

9. At this juncture, it is important to bring to your kind attention that the notification dated 23.10.2017 issued by the Ministry mentions that the ‘Central Government after consulting the Medical Council of India’ has decided to include the degrees in respect of 36 Broad Specialty Diploma Courses. In this regard, it is relevant to point out that there was neither any concurrence/recommendation by the MCI to include diplomas awarded by the CPS in the first schedule of the IMC Act nor the statutory procedure was followed in this case before including the degrees purportedly awarded by CPS in respect of the Broad Specialty Diploma Courses. The Ministry has also not taken into consideration the fact that CPS being merely an organization run by a society is legacy not entitled to award degrees and entry can be inserted of these degrees in the first schedule of the IMC Act. Further, the Joint Meeting held on 12.04.2017 under the Chairmanship of the Secretary Health & Family Welfare, wherein, it was decided that any postgraduate course including diploma courses to be run by CPS shall be with the prior approval of the Ministry and subject to fulfillment of Minimum Standard Requirement) MSR (prescribed under the MCI Regulations”

42. Therefore, prima facie this Court is satisfied that PGMEB had considered the issue before letter dated 30th April, 2021 was issued by the Central Government stating that the FCPS qualifications cannot be treated as equivalent to MD/MS qualifications. Thus, this Court finds no manifest arbitrariness or unreasonableness on the face of it, in the decision taken by the respondents.

43. This Court also notes the consistent stand of NMC/PGMEB wherein it has recommended to derecognise the remaining 10 courses of CPS, Mumbai (6 Fellowship of College of Physicians and Surgeons (FCPS), 3 Diploma and 1 Membership of College of Physicians and Surgeons (M.C.P.S)) currently included in the Schedule of IMC Act (now the NMC Act, 2019). It would be profitable to refer to letter dated 24th May, 2021 written by Ministry of Health and Family Welfare, Government of India to NMC, which reads as under:- “ No. V. 11025/01/2021-MEP (FTS - 8090760) Government of India Ministry of Health & Family Welfare (Department of Health & Family Welfare) Nirman Bhawan, New Delhi Dated the 24th May 2021 To The Secretary, National Medical Commission, Pocket-14, Sector-8, Dwarka, New Delhi-110077 Subject: VIP Reference of Shri Jai Prakash, Hon’ble MP, Lok Sabha and PMO Reference regarding representation dated 10.12.2020 from Dr. G.K. Maindarkar (President, College of Physicians and Surgeons of Mumbai)-regarding. Sir, I am directed to refer to your letter dated 25.03.2021 on the subject cited above furnishing comments on recognition to 14 courses of CPS.

2. NMC vide above referred letter has opined that it is not in the favor of recognition of any Diploma course of the CPS, Mumbai (14 courses). In Addition, NMC have recommended to de-recognize the remaining 10 courses of CPS, Mumbai currently included in the Schedule of IMC Act (now the NMC Act, 2019).

3. In this connection, it is mentioned that as per NMC Act, 2019 the power of recognition or otherwise lies with the NMC. Hence, the Commission is requested to take appropriate action in the matter of intimate this Ministry. Yours faithfully Under Secretary to the Government of India Tel No: 011-2306 1342 Encl: As above.”

44. Similarly, the letter dated 10th January, 2023 containing the Minutes of Meeting of PGMEB dated 28th June, 2022 and letter dated 13th April, 2023 issued by PGMEB to the Central Government, as relied upon by learned counsel for respondent no. 2/NMC, also reflects the consistent stand taken by PGMEB that the courses run by CPS, Mumbai do not come under the monitoring control of NMC, and therefore, PGMEB does not agree for providing equivalence to courses conducted by CPS, Mumbai. Letter dated 13th April, 2023 issued by PGMEB containing the categorical stand of PGMEB is reproduced as under:- “ National Medical Commission Post Graduate Medical Education Board (PGMEB) No. P(23)(1)(02)/2023-PGMEB Date: 13-04-2023 To Shri Sunil Kumar Gupta, Under Secretary Ministry of Health & Family Welfare Nirman Bhawan, New Delhi-110077 Subject: Clarification regarding recognition of Diploma courses offered by the CPS, Mumbai-reg. Sir, Please refer to your letter no. V-11025/14/2015-MEP {FTS:307429} dated 31.03.2023. It is informed that the matter was discussed in the Post Graduate Medical Education Board Meeting held on 12.04.2023 wherein it was decided that the courses run by CPS, Mumbai does not come under the monitoring control of the National Medical Commission. Therefore, PGMEB does not agree for providing equivalence to courses of 466 students recognized by the MoHFW vide its letter dated 18.10.2022.

2. Further, PGMEB also recommends that the 3 Diploma courses (DPB, DCH and DGO) for which equivalence has been given vide MoFHW vide letter dated 30.04.2021 should also be withdrawn from next academic year.

3. This issues with the approval of Competent Authority. Yours faithfully Rita Singh Under Secretary, PGMEB” (emphasis supplied)

45. The judgments as relied upon by the appellants do not come to their aid in any manner and are clearly distinguishable. 45.[1] Judgment in the case of Dr. Hindustanwala Mohd. Adnan Vs. Union of India (Supra) does not assist the appellants in any manner, in view of the detailed discussion by this Court hereinabove wherein it has been held that letter dated 30th April, 2021 issued by the Central Government was only clarificatory in nature. The appellants have erred in raising the issue that by letter dated 30th April, 2021 issued by the Government stating that FCPS qualifications are not equivalent to MD/MS courses, the Government is applying its policy retrospectively to notification dated 22nd January, 2018. The fact that FCPS qualifications are not equivalent to MD/MS courses is manifest from the notification dated 22nd January, 2018 issued by the Central Government and that the said position was only clarified by the Government LPA 15/2023 & other connected matters by its letter dated 30th April, 2021. There is no quarrel with the law laid down in the said judgment wherein the policy decision was held to apply prospectively. However, in the present case, it cannot be said that there is any retrospective application of the policy. 45.[2] Similarly, the judgment in the case of Anita Kishanrao Videkar (Supra) is also clearly distinguishable. In the said case, the petitioners therein had taken admission in secondary DNB course on the basis of diploma in CPS, Mumbai and had completed the entire two years of instruction. In these circumstances, it was held that it would be unjust to now hold the said petitioners to be ineligible to be admitted to the said DNB course, when they had already completed the entire two years of the instruction of the course. However, that is not the position in the present case. Recognition of the course pursued by the appellants in the present case in CPS, Mumbai has not been taken away by the letter dated 30th April, 2021 issued by the Central Government. The FCPS granted by CPS, Mumbai continues to be recognised and the degrees already granted to the appellants will continue to be recognised. Furthermore, the appellants who are still pursuing the course in CPS, Mumbai will be granted recognised degrees. Besides, there is no retrospective application of the policy in the present case, in terms of the discussion in the preceding paragraphs. 45.[3] In the same way, the judgment dated 17th September, 2021 in the case of Dr. Amarja/Amarnath Mohan Vs. Union of India and Ors., W.P. (C) No. 9287/2019, passed by following the judgment in the case of Anita Kishanrao Videkar (supra) is also not applicable to the present case in the facts and circumstances of the present case, as there is no retrospective application of the policy in the present case. 45.[4] Reliance placed upon the judgment of Supreme Court in the case of Suresh Pal (supra) is also misconceived. In the said case, when the petitioners therein were admitted to the course, it had the requisite recognition. Thus, it was held that it would be unjust for them to be told that their course had lost recognition. However, as indicated in the preceding paragraphs, there is no retrospective application of any criteria in the present case. Besides, the issue in the said case was regarding de-recognition of a particular course for appointment to a particular post. Nothing related to equivalence of degree has been decided in the said case, whereas, the equivalence of FCPS courses with MD/MS courses is the subject matter of the preset appeals.

46. Considering the aforesaid facts, this Court is not inclined to grant any interim relief in favour of the appellants. It is to be noted that Supreme Court has time and again cautioned qua grant of interim orders in academic matters. The Supreme Court has held that an interim order should not be of such a nature that by virtue of which a petition or an application, as the case may be, is finally allowed or granted even at an interim stage. Thus, in the case of Secretary, Union Public Service Commission and Another Vs. S. Krishna Chaitanya[3], it has been held as follows:

47. Similarly, in the case of Guru Nanak Dev University Vs. Parminder Kr. Bansal and Others[4], Supreme Court has held as follows:

48. Likewise, in the case of Medical Council of India Vs. Kalinga Institute of Medical Sciences (KIMS) and Others[5], Supreme Court has held as follows:- “27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated 25-9-2015 [Kalinga Institute of Medical Sciences v. Union of India, WP (C) No. 15685 of 2015, order dated 25-9-2015 (Ori)]. There was no

LPA 15/2023 & other connected matters need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved — what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty.”

49. In view of the detailed discussion hereinabove, no case is made out for grant of any interim relief to the appellants. Accordingly, the present applications are dismissed. However, it is clarified that nothing contained herein shall be construed as an expression on the merits of the case. LPA 15/2023 LPA 16/2023 LPA 87/2023 LPA 149/2023

50. Learned counsel for CPS, Mumbai prays for and is permitted to file an additional affidavit within three weeks. Reply, if any, to the additional affidavit be filed within further period of three weeks.

51. List on 21st November, 2023. MANMOHAN, J MINI PUSHKARNA, J SEPTEMBER 18, 2023 au/c/ak