K. Srinivasa Rao vs The Registrar (Evaluation)

Anand Byrareddy, J.—Heard the learned Counsel for the petitioners and the learned Counsel for the respondents. The petitioners are said to be working in Medical Colleges affiliated to the first respondent-University. They are working against the substantive posts of Assistant Professors/Associate Professors in the medical institutions. The particulars of the date of appointment and the acquisition of degree in Post-graduation and Ph.D. in the respective disciplines of the petitioners is indicated hereunder in a tabular form:

It is the case of the petitioners that the respondent-University is required to function insofar as conducting examinations in terms of the Medical Council of India Regulations on Graduate Medical Education, 1997. This Regulations provide for guidelines and the procedure to be followed in terms of sub-regulations as provided under Chapters I to V and Appendixes-A to D. Chapter IV of Regulation 13 provides the procedure to be followed while appointing the Examiners for the purpose of under graduate examinations, Post-graduate examinations in the colleges affiliated to the respondent-University. The Regulation 13 reads as follows:

"13. (3) Non-medical scientists engaged in the teaching of medical students as whole time teachers, may be appointed examiners in their concerned subjects provided they possess requisite doctorate qualifications and five years teaching experience of medical students after obtaining their Post-graduate qualifications. Provided further that the 50% of the examiners (internal and external) are from the medical qualification stream".

It is the case of the petitioners that in terms of the said regulations, the Assistant Professors/Associate Professors working in the respective medical institutions have to be involved in the process of examination work pertaining to undergraduate medical courses who have put in the service in the institution as non-medical scientist engaged in the teaching of medical students as whole time teachers. They could be appointed as examiners in their concerned subject provided they possess requisite doctorate qualification and five years teaching experience of medical students after obtaining their Post-graduate qualification. Provided further that the 50% of the examiners (internal and external) are from the medical qualification stream. However, the respondent-University has prescribed different eligibility. In that, the respondent-University requires that the examiners should possess M.Sc. with Ph.D. and they shall have seven years of teaching experience as medical student after obtaining their Post doctorate qualification. It is this which has kept the petitioners out of the examination process and evaluation of the answer scripts of undergraduate Examination. This is the cause of action for the present writ petitions.

Learned Counsel for the respondent-Sri N.K. Ramesh, however, would submit that the petition may be disposed of with an observation that since the University has already undertaken the process of revisiting the Regulations which prescribe seven years of teaching experience and bring it in accordance with the Medical Council of India Regulations and since it is under active consideration, the respondent may be directed to pass appropriate orders in the near future.

However, it is to be noticed that the settled legal position has been reiterated in Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of U.P. and Others, as follows:

"55. Now, we may examine some of the judgments of this Court which have dealt with these aspects. In State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others, , the Supreme Court while discussing various aspects in regard to constitutional validity of Tamil Nadu Private College Regulation Act, 1976 and the provisions of the All India Council for Technical Education Act, 1987 clearly spelled out the preferential role of the Council as under (SCC pp. 118 to 120, para 22):

"22. The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system. The Council is further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to derecognise the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country.... It is necessary to bear this aspect of the norms and standards to be prescribed in mind, for a major debate before us centered around the right of the States to prescribe standards higher than the one laid down by the Council. What is further necessary to remember is that the Council has on it representatives not only of the States but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards which may be prescribed by the Council for such education from time to time. The Council has further the Regional Committees, at present, at least, in four major geographical zones and the constitution and functions of the Committees are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the States and the professional bodies on it which have also representation from different States and regions, they have a say in the constitution and functions of these Committees as well....".

Further, this Court, while noticing the inconsistency between the Central and State statutes or the State Authorities acting contrary to the Central statute, held as under (Adhiyaman Educational and Research Institute''s case (SCC p. 135, paras 41 and 43):

"41....(vi) However, when the situations/seats are available and the State Authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State Authorities derecognise or disaffiliate ah institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central Authority, the State Authorities act illegally.

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As a result, as has been pointed out earlier, the provisions of the Central Statute on the one hand and of the State Statutes on the other, being inconsistent and, therefore, repugnant with each other, the Central Statute will prevail and the derecognition by the State Government or the disaffiliation by the State University on grounds which are inconsistent with those enumerated in the Central Statute will be inoperative".

Still, in another case of Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, , this Court reiterating the above principle, held as under (SCC pp. 243-244, para 22):

"22. As held in State of Tamil Nadu''s case the Central Act of 1987 and in particular, Section 10(1)(k) occupied the field relating the ''grant of approvals'' for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act, or its statutes were concerned and in particular Statute 9(7), they merely required the University to obtain the ''views'' of the State Government. That could not be characterised as requiring the ''approval'' of the State Government. If, indeed, the University Statute could be so interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10(1)(k) of the AICTE Act, 1987 and would again be void. As pointed out in State of Tamil Nadu''s case there were enough provisions in the Central Act for consultation by the Council of the AICTE with various agencies, including the State Governments and the Universities concerned. The State Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, the AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the Universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in State of Tamil Nadu''s case, it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by the AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for ''approval'' of the State Government".

This view of the Supreme Court was reiterated with approval by a larger Bench of the Supreme Court in State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others, . While discussing in detail the various legal issues in relation to grant of affiliation/recognition to the institution and permission to start a new college, the Court held as under (SCC pp. 29, 32 and 37, paras 53, 54, 64 and 74):

"53. The Court then considered the argument put forward on behalf of the State that while it would be open for the Council to lay down minimum standards and requirements, it did not preclude the State from prescribing higher standards and requirements.

Negativing the contention, the Court quoted with approval the following observations of B.N. Rau, J., in G.P. Stewart Vs. Brojendra Kishore Roy Chaudhury, :

"It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says ''do'' and the other ''don''t, there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test; there may well be cases of repugnancy where both laws say ''don''t'' but in different ways. For example, one law may say "no person shall sell liquor by retail, that is, in quantities of less than five gallons at a time" and another law may say, "no person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time". Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely, the second one; yet it is equally obvious that the two laws are repugnant, to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified""".

(emphasis supplied)

In the light of the above, the very prescription of seven years of teaching experience which is contrary to teaching experience prescribed under the Medical Council of India Regulations is patently illegal. Therefore, the respondents would do well to expedite the process of bringing the prescriptions in accordance with the Medical Council of India and this shall be done forthwith failing which the same shall be deemed to have been struck down.

The petitions are disposed of in terms as above.