Ajay Kumar Sachdev v. Institute of Liver & Biliary Sciences & Ors.

1. This is the second round of litigation by the Petitioner. By this writ petition, Petitioner seeks inter alia quashing of letter dated 22.05.2021, whereby Respondent No. 1/Institute of Liver & Biliary Sciences (hereinafter referred to as the ‘Institute’) has rejected Petitioner’s application for the post of Professor (Surgical Hepatology) on the ground that he does not fulfil the eligibility criteria of publications as prescribed under the Institute’s Recruitment Rules (hereinafter referred to as the ‘RRs’). Writ of mandamus is sought directing the Institute to re-initiate the process of screening/selection in terms of order passed by this Court on 01.02.2021, in the earlier writ petition filed by the Petitioner being W.P.(C) 1129/2021.

2. Factual score, as per the narrative in the writ petition and necessary for adjudicating the issues emanating therefrom is that the Petitioner completed his MBBS and M.S. in General Surgery from Kanpur University and thereafter pursued his Ph.D. in Gastrointestinal (GI) Surgery from Delhi University. He joined the Department of GI Surgery at G.B. Pant Hospital in 1986 as a Resident, where he dedicatedly offered his services in teaching, research and clinical activities till 1998. Petitioner not only taught but was also an examiner for students in M.Ch. (specialisation in GI surgery) degree course as an ad-hoc Associate Professor. In 1998, Petitioner cleared the UPSC examination and was posted at G.B. Pant Hospital as regular Associate Professor, GI Surgery. Between 2005-2019, Petitioner worked as Senior GI Surgeon/CEO/Head/Chairman /Director of GI Surgery Department in various reputed Hospitals like Batra, Fortis, Kailash, Agrasen, to name a few. By a letter dated 07.02.2019, Secretary General of Medical Council of India (hereinafter referred to as the ‘MCI’) confirmed Petitioner’s eligibility for post of Professor in the Department of Surgical Gastroenterology in medical colleges in India, based on his academic qualifications, teaching experience and research publications.

3. On 18.12.2016 and 19.10.2017, advertisements were issued by the Institute inviting applications for the post of Professor (Surgical Hepatology) as per which the criteria of eligibility was M.Ch. in Surgical Gastroenterology (2/3/5/6 years recognized course) or a qualification recognized equivalent thereto with 11 years teaching and/or research experience in a recognized Institution in the Department of Surgical Gastroenterology etc. Petitioner applied for the post and was hopeful of a positive outcome being eligible, experienced and meritorious. Between 2017-2020, Petitioner visited the Institute several times to enquire about the status of his application, but no information was shared with him and on 15.10.2020 he filed an RTI application to ascertain the status. Replying to the RTI application on 13.11.2020 and 15.12.2020, Institute informed the Petitioner that his application had been rejected as he did not possess M.Ch. degree in Gastroenterological Surgery. This decision of the Screening Committee as per the Petitioner was illegal and contrary to the conditions advertised in the advertisements. According to the Petitioner, the Screening Committee did not consider his equivalence which was clearly demonstrated by his qualifications as per the criteria laid down by MCI under the ‘Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998’ (hereinafter referred to as the ‘Regulations, 1998’) and his selection as Associate Professor by UPSC. Finding no other option, Petitioner filed a writ petition in this Court being W.P.(C) 1129/2021, challenging the rejection of his application by the Institute.

4. In the meantime, on 31.01.2021-01.02.2021, Institute published a fresh advertisement for filling up the post and thus the Court disposed of the writ petition on 01.02.2021 on a statement made on behalf of the Institute that if the Petitioner applies, his application shall be considered by the Screening Committee and only after all the applications were screened, the Selection Committee would consider the names of the screened candidates. It was also assured to the Court that the Screening Committee shall take into consideration the communication of the MCI dated 07.02.2021, certifying his eligibility and on which the Petitioner had placed reliance. Petitioner was granted liberty to take recourse to legal remedies, if aggrieved by the decision of the Institute, pursuant to the deliberations of the Screening Committee.

5. Petitioner applied for the post of Professor (Surgical Hepatology) against the advertisement dated 31.01.2021-01.02.2021, however, Petitioner received no information about the Committee’s decision. Apprehending bias on behalf of the Director/Respondent NO. 2, which the Petitioner had alleged even in the first round of litigation, he sent an e-mail on 19.03.2021, requesting the Institute to communicate the result of the Screening Committee. In response, the Institute by a letter dated 13.04.2021 asked the Petitioner to submit copies of his 06 articles. On account of Pandemic COVID-19 and lockdown imposed by the Government, Petitioner did not have access to any library at that stage, yet he somehow managed and submitted details of 35 articles published by him, including citations of two articles, vide e-mail dated 18.04.2021. Again there was no communication from the Institute for some time and finally vide impugned letter dated 22.05.2021, Institute rejected Petitioner’s application on the ground that he did not fulfil the eligibility criteria of publications. Petitioner attributes this to the personal vendetta and bias of Respondent No. 2, who was interested in promoting someone closely known to him and nurtured a bias towards the Petitioner.

6. Contentions on behalf of the Petitioner:- (A). The impugned order rejecting the candidature of the Petitioner is illegal and actuated by mala fides as Respondent No. 2. When the Petitioner had applied for the first time, he was declared ineligible on the ground that he did not possess M.Ch. degree. However, Respondent No.2 did not succeed in his ill motives as MCI clarified that the degree possessed by the Petitioner was equivalent to M.Ch. Thereafter, Respondent No. 2 found another novel method to oust the Petitioner from consideration, by creating a frivolous and misconceived ground that he lacks the eligibility criteria of research publications required under the RRs of the Institute. (B). Petitioner has submitted as many as 35 publications as against the requirement of only 03 under the ‘Minimum Qualifications for Teachers in Medical Institutions (Amendment) Regulations, 2019 (hereinafter referred to as the ‘Regulations, 2019’) and only 04 under the earlier Regulations, 1998, which have a binding force. Institute has no power to prescribe an eligibility criteria contrary to those prescribed by National Medical Commission (hereinafter referred to as ‘NMC’) under Regulations, 2019, since erstwhile MCI and now NMC are statutory bodies created for regulating medical education and medical institutes and the standards or qualifications set by them bind medical institutions, including those which are autonomous, such as the Institute herein. NMC was impleaded by the Court as a party in the writ petition and was directed to file an affidavit clarifying whether the Institute could prescribe the requirement of 06 publications i.e higher than those provided by NMC as minimum qualifications and also if the publications submitted by the Petitioner make him eligible for the post in question. NMC in its reply has categorically stated that Circular dated 03.09.2015 regarding indexing of the Research Publications, being prospective would not apply to the publications of the Petitioner which are prior thereto and that 09 research publications of the Petitioner at serial Nos. 1, 3, 5, 6, 17, 18, 26, 28 and 29, meet the required criteria provided under Regulations,

2019. It is trite that Regulations of MCI/NMC will have an overriding effect on the RRs of the Institute to the extent the qualifications or eligibility criteria prescribed in the RRs, are contrary or in derogation thereof. Therefore, in view of the stand of NMC on an affidavit before this Court, Petitioner is eligible and his case should be considered by the Selection Committee. (C). The Constitution Bench of the Supreme Court in Tamil Nadu Medical Officers Association and Others v. Union of India and Others, (2021) 6 SCC 568, has held that by virtue of Schedule VII List I Entry 66 of the Constitution of India, the minimum qualifications for teachers in medical institutions laid down by MCI will have an overriding effect over any other Rules framed by States or colleges, to the extent they are at variance with the Regulations of MCI. In a recent judgement delivered on 24.01.2023 in the case of Baharul Islam and Others v. Indian Medical Association and Others, 2023 SCC OnLine SC 79, the Supreme Court has reiterated that Rules and Regulations framed by MCI, laying down standards for medical education will hold the field and even the States have no legislative competence to enact any Rule or Regulation, contrary thereto. (D). Admittedly, in the present case the advertisement in question was issued in the year 2021 and thus Regulations, 2019 will govern the screening and selection process, wherein the prescribed eligibility criteria mandates only 03 research publications, with at least 02 as Associate Professor and further provides that the Author must be amongst first three or should be the corresponding author. Under Regulations, 2019, original papers, meta-analysis and even ‘case series’ published in Journals included in Medline, Citation Index, etc. can be considered to determine the eligibility. Institute is clearly bound to follow the mandate and cannot declare the Petitioner ineligible on the basis of conflicting criteria in its RRs, which are even otherwise non-statutory.

7. Contentions on behalf of the Institute:- (A). Institute is a Super-Speciality autonomous Institute and also Deemed to be University set up by the Government of Delhi. Institute aims to provide high standards of medical education and requires highly trained and skilled faculty of medical and surgical super speciality. It has a unique structure and the Bye-Laws of the Institute have been duly approved by the Council of Ministers, GNCTD vide Cabinet Decision No. 749 dated 07.10.2002. The Bye-Laws empower the Governing Council to create and abolish posts and appoint faculty and other staffs as well as lay down the terms and conditions of their appointment. (B). RRs of the Institute stipulate higher eligibility criteria on recommendations of the Academic Council and have been approved by the Governing Council. Unlike CGHS, the Institute provides higher recruitment and eligibility criteria, considering it is a Super-Speciality autonomous body and is required to maintain high standards in field of medical education. Institute has the power and prerogative to prescribe qualifications and eligibility conditions for the various posts in the Institute so long as these are not lower than or contrary to the Regulations of MCI/NMC. The Institute is a torch bearer model of excellence in patient care, teaching and training in the field of Liver and Biliary Diseases and prescribing higher standards of qualifications for appointment of Professors is with the aim of furthering the objective of having the best faculty for imparting better education. (C). Institute advertised various posts of faculty on 31.01.2021- 01.02.2021 in leading National newspapers and received three applications for the post of Professor (Surgical Hepatology) including that of the Petitioner. A duly constituted Screening Committee of Experts screened the applications in the meeting held on 13.04.2021 in accordance with the RRs. In compliance of the order of this Court dated 01.02.2021, MCI letter dated 07.12.2019 in respect of the Petitioner was placed before the Screening Committee. After scrutinizing the documents, the Screening Committee observed that photocopies of all the published articles had not been properly submitted by the applicants and along with the others, Petitioner was also given an opportunity to submit the same within 17 days. In response to the letter, Petitioner submitted copies of all his published articles, which were reviewed by the Committee on 17.05.2021 and after careful scrutiny, Committee was of the view that the publications were not as per the eligibility criteria in the RRs, which prescribed six publications during the tenure as Additional Professor (original articles published/accepted: excluding case reports, letters to Editors and review articles) as first/second/corresponding author. Moreover, publications submitted by the Petitioner did not satisfy the conditions stipulated in the Circular dated 03.09.2015 issued by MCI, giving ‘Clarifications on Research Publications’ for teaching faculty in Medical Colleges/Institutions. For all these reasons, the Screening Committee came to a conclusion that none of the applicants, including the Petitioner were eligible for the post of Professor (Surgical Hepatology) and the applications were rejected. (D). The allegations levelled by the Petitioner against Respondent No.2 are baseless and misconceived. Being the Director of the Institute, he has no role to play in the screening process of the applications, which were screened by the Screening Committee, comprising of independent experts in the field, purely on the basis of advertised criteria provided in the RRs. (E). NMC was impleaded by the Court and directed to verify whether the publications of the Petitioner met the essential qualifications of the post in question. No doubt, NMC has mentioned in the reply that 09 publications of the Petitioner confirm to Regulations, 2019, however, details as to which are those 09 publications are conspicuously missing in the reply. During the course of hearing, counsel for NMC pointed to 09 publications, which according to NMC make the Petitioner eligible and as detailed in the written submissions in a tabular representation are as follows:-

┌─────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                                SL. NO. LIST OF PUBLICATIONS                YEAR              OF         │
│                                                                            PUBLICATION                  │
├─────────────────────────────────────────────────────────────────────────────────────────────────────────┤
│                                1.            How do bile duct injuries 2001                             │
│                                              sustained              during                              │
│                                              laparoscopic cholecystectomy                               │
│                                              differ from those during open                              │
│                                              cholecystectomy-PubMed                                     │
│                                3.            Suri VS, Benign Signet Ring 2001                           │
│                                              Cell_2001                                                  │
│                                5.            Gastric Outlet obstruction in 1999                         │
│                                              Carcinoma         of      the                              │
│                                              Gallbladder-PubMed                                         │
│                                6.            Paraganglionoma            of 2000                         │
│                                              extrahepatic biliary tract                                 │
│                                              causing                                                    │
│                                17.           Benign signet ring cell 2001                               │
│                                              change with multilayering in                               │
│                                              the gallbladder mucosa- a                                  │
│                                              case report                                                │
│                                19.           Paraganglionoma            of 2000                         │
│                                              extrahepatic biliary tract                                 │
│                                              causing obstructive jaundice                               │
│                                              – PubMed                                                   │
│                                26.           Leiomyo Sarcoma               1998                         │
│                                27.           40244 stones in GB         1998                            │
│                                29.           Pancreatic Hydatid         1999                            │
│                               As per the RRs, only first/second/corresponding author is                 │
│                     eligible for consideration, which is also the pre-requisite under                   │
│                     Regulations, 2019 stipulating that the author must be amongst first                 │
│                     three or a corresponding author. ‘Corresponding Author’ is an                       │
│                     individual who takes primary responsibility for communication with                  │
│                     the Journal during the manuscript submission, peer-review and                       │
│                     publication process. Having carefully analysed the 09 publications, the             │
│ Signature Not VerifiedInstitute     is still of the considered opinion that these are not in            │
│ Digitally Signed        W.P.(C) 5737/2021                                                Page 9 of 25   │
└─────────────────────────────────────────────────────────────────────────────────────────────────────────┘

67. In the instant case the law made by the State Legislature, namely, the Assam Act is hit by the first of the aforesaid two restrictions; hence, it is null and void as the Assam Legislature lacked the legislative competence to enact such a Law.

68. In light of the aforesaid discussion, we are of the considered view that Rural Health Practitioners enlisted under the Assam Act, are underqualified to perform functions similar to those performed by medical practitioners registered in accordance with the Central Act. In order to be recognised as a practitioner in any branch of modern scientific medicine, including allopathic medicine, the qualifications that must mandatorily be obtained are those listed in the Schedules to the Central Act. xxx xxx xxx Conclusion:

85. In the result, we arrive at the following conclusions:

(i) Entry 25 of List III of the Seventh Schedule of the

Constitution of India deals with the subject education which is in the Concurrent List under which both the Parliament or the Union Legislature as well as the State Legislatures have legislative competence to legislate. However, Entry 25 of List III is subject to, inter alia, Entry 66 of List I which is the Union List. Entry 66 of List I deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Thus, when any law is made under Entry 25 of List III by a State Legislature, the same is always subject to Entry 66 of List I. In other words, if any law made by the Parliament comes within the scope of Entry 66 of List I, then the State Legislation would have to yield to the Parliamentary law. Thus, where one Entry is made "subject to" another Entry, it would imply that, out of the scope of the former Entry, a field of legislation covered by the latter Entry has been reserved to be specifically dealt with by the appropriate legislature.

(ii) In the instant case, it is held that the IMC Act, 1956 is a legislation made by the Parliament for the purpose of coordination and determination of standards in medical education throughout the Country. The said law, along with the Rules and Regulations made thereunder are for the purpose of determination of standards of medical education throughout India. Thus, determination of standards in medical education in India is as per the IMC Act, 1956 which is a Central Law. This is in respect of modern medicine or allopathic medicine within the scope of Entry 66 of List I and not under Entry 25 of List III of the Seventh Schedule. Therefore, a State Legislature which passes a law in respect of allopathic medicine or modern medicine would be subject to the provisions of the IMC Act, 1956 and the Rules and Regulations made thereunder. This would imply that no State Legislature has the legislative competence to pass any law which would be contradictory to or would be in direct conflict with the IMC Act, 1956 and the Rules and Regulations made thereunder. In other words, the standard in medical education insofar as modern medicine or allopathy is concerned, having been set by the IMC Act, 1956 and the Rules and Regulations made thereunder or by any subsequent Act in that regard, such as the Medical Council of India Act, 2019, the State Legislature has no legislative competence to enact a law which is in conflict with the law setting the standards of medical education in the context of modern medicine or allopathic medicine, which has been determined by Parliamentary Legislation as well as the Rules. In other words, a State Legislature has no legislative competence to enact a law in respect of modern medicine or allopathic medicine contrary to the said standards that have been determined by the Central Law. In view of the above conclusion, we hold that decision of the Gauhati High Court holding that the Assam Act to be null and void, is just and proper. However, the Gauhati High Court has held that the State had no legislative competence to enact the Assam Act in view of Article 254 of the Constitution on the premise that the IMC Act and the Rules and Regulations made thereunder were holding the field and hence, on the basis of the doctrine of occupied field, the Assam Act was struck down as being repugnant to the Central Law. In view of the aforesaid conclusion, we are of the view that the said reasoning is incorrect. It is reiterated that the IMC Act and the Rules and Regulations made thereunder, which are all Central legislations, have been enacted having regard to Entry 66 of List I and would prevail over any State Law made by virtue of Entry 25 of List III of the Constitution.