DR. RASHI SATYANARAYAN SONI & ORS. vs UNION OF INDIA & ORS.

2024-04-01 Information

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 15/2023 & CM APPLs. 60027/2023, 60044-60045/2023
DR. MAHESH PRAKASH SHINDE & ORS. ..Appellants
Through: Mr. Apoorve Karol, Advocate with Mr. Mithu Jain and Ms. Kavitoli G.Yeptho, Advocates.
versus
UNION OF INDIA & ORS. ..Respondents
Through: Mr. T.P. Singh, Sr. Central Govt.
Counsel
Mr. T. Singhdev with Mr. Abhijit Chakravarty, Mr. Bhanu Gulati, Ms. Anum Hussain, Mr. Tanishq Srivastava, Mr. Aabhaas Sukhramani, Mr. Ramanpreet Kaur, Advocates for R-2.
Mr. Kirtiman Singh, Advocate with Mr. Waize Ali Noor, Advocate for R-3.
Mr. Akhil Sibal, Sr. Advocate with Mr. Satvik Verma, Mr. Asavari Jain, Mr. Shivanshu Bharadwaj, Mr. Gazal Ghai, Mr. Mridul Gaur, Mr. Archit Mudgal, Mr. Rajiv Singh, Mr. Manas Syal and Mr. Chirag, Advocates for R-4.
+ LPA 16/2023

DR. RASHI SATYANARAYAN SONI &
ORS. ..Appellants

Through: Mr. Apoorve Karol, Advocate with Mr. Mithu Jain and Ms. Kavitoli G.Yeptho, Advocates.

versus
UNION OF INDIA & ORS. ..Respondents

Through: Mr. T.P. Singh, Sr. Central Govt.
Counsel
Mr. T. Singhdev with Mr. Abhijit Chakravarty, Mr. Bhanu Gulati, Ms. Anum Hussain, Mr. Tanishq Srivastava, Mr. Aabhaas Sukhramani, Mr. Ramanpreet Kaur, Advocates for R-2.
Mr. Kirtiman Singh, Advocate with Mr. Waize Ali Noor, Advocate for R-3.
Mr. Akhil Sibal, Sr. Advocate with Mr. Satvik Verma, Mr. Asavari Jain, Mr. Shivanshu Bharadwaj, Mr. Gazal Ghai, Mr. Mridul Gaur, Mr. Archit Mudgal, Mr. Rajiv Singh, Mr. Manas Syal and Mr. Chirag, Advocates for R-4.
+ LPA 87/2023
COLLEGE OF PHYSICIANS AND SURGEONS OF
MUMBAI ..Appellant
Through: Mr. Akhil Sibal, Sr. Advocate with Mr. Satvik Verma, Mr.Asavari Jain, Mr.Shivanshu Bharadwaj, Mr.Gazal Ghai, Mr.Mridul Gaur, Mr.Archit Mudgal, Mr.Rajiv Singh, Mr.Manas Syal and Mr.Chirag, Advocates.
versus
UNION OF INDIA AND ORS ..Respondents
Through: Mr. T.P. Singh, Sr. Central Govt.
Counsel
Mr. T. Singhdev with Mr. Abhijit Chakravarty, Mr. Bhanu Gulati, Ms. Anum Hussain, Mr. Tanishq Srivastava, Mr. Aabhaas Sukhramani, Mr. Ramanpreet Kaur, Advocates for R-2.
Mr.Kirtiman Singh, Advocate with
Mr.Waize Ali Noor, Advocate for R-3.

% Date of Decision: 01st April, 2024

CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE MINI PUSHKARNA

J U D G M E N T

MINI PUSHKARNA, J:
Introduction:
1. The appellants before this Court in LPA No. 15/2023 and LPA No. 16/2023 are the doctors who, after successfully completing their undergraduate Bachelor of Medicine and Bachelor of Surgery (MBBS) course, have completed three years Post-graduate Fellowship course (FCPS) offered by the College of Physicians and Surgeons, Mumbai (CPS Mumbai). The CPS, Mumbai is the appellant before this Court in LPA No. 87/2023.
2. The respondents before this Court are the Union of India/Central Government, through Ministry of Health and Family Welfare (MoHFW) as respondent no. 1; The National Medical Commission (NMC) as respondent no. 2 and National Board of Examinations in Medical Sciences (NBE) as respondent no. 3.
3. The present appeals have been filed against the common judgment dated 11th October, 2022 passed by the Learned Single Judge in W.P. (C) No. 7615/2022 and other connected matters. The appellants-doctors being aggrieved by the notification dated 30th April, 2021 issued by the respondent no. 1/MoHFW approached this Court by filing writ petitions. By the said notification, the MoHFW, after holding that six Fellowship Courses conducted by CPS, Mumbai are recognized and registrable for the purpose of practise, held that the same cannot be considered equivalent to their respective Doctor of Medicine (MD)/Master of Surgery (MS) counterpart. The core issue of dispute in the present cases is that on account of the aforesaid notification clarifying that the FCPS courses are not equivalent to MD/MS qualifications, the appellants-doctors are not allowed to sit for the Diplomate of National Board (DNB) final examination, as qualification of MD/MS, is a pre-requisite for the DNB course.
4. The learned Single Judge dismissed the said writ petitions filed by appellants-doctors vide the impugned common judgment dated 11th October, 2022, against which the present appeals have been filed.

Factual Matrix:
5. The brief facts for the purposes of adjudication of the present appeals are as follows:-
5.1 By way of the notifications dated 02nd December, 2009 and 03rd February, 2010, the Central Government de-recognized the qualifications issued by CPS, Mumbai by deleting these qualifications from the First Schedule of the Indian Medical Council Act, 1956 (IMC Act, 1956). 5.2 Subsequently, by way of notification dated 17th October, 2017, published in the Official Gazette on 23rd October, 2017, the Central Government recognized thirty nine (39) diploma courses (at the Post MBBS level) conducted by CPS, Mumbai, by including them in the First Schedule of the IMC Act, 1956.
5.3 By way of another notification dated 22nd January, 2018, the Central Government again de-recognized thirty six (36) out of the thirty nine (39) diploma courses conducted by CPS, Mumbai by deleting them from the First Schedule of the IMC Act, 1956. However, six FCPS courses were inserted in the First Schedule of the IMC Act, 1956 and it was clarified that these qualifications shall not be treated as recognized medical qualifications for the purpose of teaching.
5.4 In order to ascertain the status of the equivalence of FCPS qualifications to the corresponding MD/MS courses, respondent no. 3/NBE vide communications dated 16th September, 2020 and 25th November, 2020 sought clarification from the Central Government and the NMC. The respondent no. 3/NBE vide its communication dated 22nd September, 2020 informed the appellants-doctors, who were appearing in the DNB final (theory) examination in June, 2020, that they were being provisionally allowed to appear in the said examination till such time as the question of equivalence is resolved by the Central Government.
5.5 Subsequently, respondent no. 3/NBE by its decision taken in its Minutes of Meeting held on 24th December, 2020, directed that the candidates possessing FCPS qualifications shall not be allowed to appear in the DNB final examinations, till such time the clarification qua the equivalence of the FCPS qualifications with respect to the degrees awarded by the Indian Universities, is received from the Central Government. In terms of the aforesaid decision, the respondent no. 3/NBE issued the Information Bulletin on 19th January, 2021 thereby stating that the candidates possessing FCPS qualifications awarded by CPS, Mumbai are not eligible for DNB final examinations, till such time the equivalence of FCPS qualifications with MD/MS qualifications, is confirmed by the Central Government.
5.6 Thereafter, the Central Government vide notification dated 30th April, 2021 inter-alia clarified that the FCPS qualifications cannot be treated as equivalent to MD/MS qualifications. Accordingly, the appellants-doctors were prevented from appearing in DNB examination on the basis of Clause 4.3.2 of the Information Bulletin issued by respondent no. 3/NBE for the year 2021. Thus, the writ petitions came to be filed on behalf of the appellants-doctors challenging the aforesaid decision.
5.7 The said writ petitions were dismissed vide the impugned common judgment dated 11th October, 2022, against which the present appeals have been filed.

Submissions by Appellants-Doctors:
6. On behalf of the appellants-doctors, the following submissions have been made:-
6.1 The CPS, Mumbai is one of the oldest Post-Graduate Medical Educational Institutions in India empowered to confer qualifications by Indian Medical Degree Act, 2016.
6.2 The FCPS Degrees granted by CPS, Mumbai stand recognized when they were granted after 30th April, 1954. The FCPS Degrees were always considered at par with the MD/MS Degrees.
6.3 The FCPS courses are recognized under the First Schedule of the IMC Act, 1956. The doctors, who successfully complete their recognized FCPS courses, thereafter, approach the respondent no. 2/NMC for their registration of their Post-Graduate FCPS degree and the respondent no. 2/NMC thereafter, enters the said fellowship qualification in the Medical Council Register.
6.4 All the appellants-doctors before this Court had joined their respective FCPS courses prior to 30th April, 2021 i.e., prior to issuance of notification dated 30th April, 2021 issued by respondent no. 1/MoHFW declaring the FCPS courses as not being equivalent to MD/MS.
6.5 Prior to the aforesaid notification dated 30th April, 2021, doctors who had successfully completed their three years fellowship courses, were allowed to take the DNB final examination, which is a two part examination having a theory and a practical component. Some of the appellants before this Court were also allowed to sit in the DNB final (theory) examination in pursuance of the Information Bulletin dated 31st July, 2020. However, their DNB (theory) examination results were withheld and were never declared due to the issuance of the notification dated 30th April, 2021 issued by respondent no. 1/MoHFW.
6.6 The policy decision dated 30th April, 2021 taken by the respondent no. 1/MoHFW can only be made applicable prospectively on doctors, who joined the course after 30th April, 2021. Due to the notification dated 30th April, 2021, the doctors, after completing their recognized three years fellowship course, were barred from sitting in the DNB final examination conducted by respondent no. 3/NBE. Even vide notification dated 03rd February, 2010, de-recognition of the FCPS course earlier, were made applicable prospectively.
6.7 The doctors who had joined the FCPS courses prior to 02nd December, 2009, were awarded degrees after they completed their three years FCPS course in the year 2011-12 and were also allowed to sit in the DNB final examination on the basis of the said degrees even in the year 2017.
6.8 After retrospective recognition was granted to DNB courses vide Gazette Notification dated 22nd January, 2018, apart from doctors who had joined their FCPS courses prior to 02nd December, 2009, even those doctors who had joined their respective FCPS courses after the said date and prior to 22nd January, 2018, were also allowed to sit in the DNB final examination.
6.9. Vide notification dated 18th October, 2022, the respondent no. 1/MoHFW had given protection to certain doctors whose degrees were de-recognized while they were pursuing their two-year diploma courses. The degrees of the doctors, who had joined between 17th October, 2017 and 22nd January, 2018, stood recognized even though they would complete the course during the time said two year courses stood de-recognized. Thus, de-recognition was applied prospectively i.e., after 22nd January, 2018.
6.10 If de-recognition can be held to be prospective, then the same principle ought to be applied for the purposes of equivalence or the accrued right to sit for an exam on the basis of the said degree.
6.11 A policy decision, which seeks to withdraw a benefit or a vested/accrued right, cannot be made applicable retrospectively and cannot be termed as a mere clarification. It is incomprehensible that principle of prospective application will be made applicable to the issue of de-recognition, but the same would not be made applicable to the other benefit which were already available to the appellants-doctors i.e., sitting in the DNB final examination, which was a substantive right available to the appellants-doctors, prior to the issuance of the impugned notification dated 30th April, 2021.
6.12 A policy decision taken by the respondent no. 1/MoHFW cannot be termed as a mere clarification as it takes away vested/accrued rights/benefits, which were available to the doctors who had successfully completed their FCPS course. The said doctors were allowed to sit in the DNB final examination prior to the issuance of the impugned notification dated 30th April, 2021.
6.13 No reason whatsoever has been provided by the respondent no. 1/MoHFW for coming to the conclusion that FCPS courses are not equivalent to their counterpart MD/MS qualifications. Therefore, such a non-reasoned policy decision taking away the substantive/accrued rights of the appellants-doctors, ought to be quashed and set aside.
6.14 The issue pertaining to teaching qualification did not have any bearing/relevance on the issue of equivalence. Therefore, any attempt to raise the issue of teaching qualification for the purpose of denying equivalence is misconceived. Equivalence for the purpose of teaching was never a bar for obtaining DNB degrees. The aforesaid fact can further be culled out from the provisions of Section 37(2) of the NMC Act, from which it becomes abundantly clear that not every candidate who is awarded a DNB degree can teach or that every DNB degree is equivalent for the purpose of teaching. Therefore, the issue of equivalence of the FCPS degree with corresponding MD/MS degree should not get affected just on the issue of teaching qualification.
6.15 Respondent no. 1/MoHFW had issued a notification dated 20th September, 2023, whereby the qualifying percentile for post-graduate courses for 2023 (NEET-PG 2023) was reduced to zero percentile, as a result of which students with negative scores became eligible for post-graduate medicals seats. When the respondent no. 1/MoHFW can give such relaxations, then it is not understood as to why the appellants-doctors, who have completed a recognized post-graduate medical course, cannot be allowed to sit in an examination which would act as a filter to gauge their proficiency or command over their relevant subjects.
6.16 The FCPS courses are recognized under various State Acts. CPS Fellowships and Diploma Courses are notified by Government of Maharashtra through notification and also recognized in the Maharashtra Medical Council Act, 1965. Government of Gujarat has recognized all the fellowships and diplomas of CPS in the State of Gujarat vide notification dated 14th October, 2011. FCPS courses are also recognized in the State of Rajasthan and Union Territory of Dadra and Nagar Haveli.
6.17 The FCPS courses are run in hospitals/institutions where MD/MS or DNB courses are also imparted.
6.18 The following judgments have been relied upon on behalf of the appellants:-
(i) Judgment dated 28th August, 2012 passed by Division Bench of High Court of Bombay in W.P. (L) No. 1711/2012, Doctor Hindustanwala Mohd. Adnan Versus Union of India.
(ii) Suresh Pal & Others Versus State of Haryana & Others, (1987) 2 SCC 445.
(iii) Orders dated 19th April, 2023, 21st April, 2023, 08th June, 2023 and 30th June, 2023 passed by Division Bench of the Aurangabad Bench of Bombay High Court in the matter of Aasawari Kiran Purohit and Others Versus Government of India and Others, W.P. No. 4235/2023.
(iv) Judgment dated 18th January, 2024 passed by High Court of Rajasthan at Jodhpur in S.B. Civil Writ Petition 6068/2022, Geetanjali Medical College And Hospital Versus The Union of India & Ors.
(v) Sree Sankaracharya University of Sanskrit and Others Versus Dr. Manu and Another, 2023 SCC OnLine SC 640.
(vi) Assistant Excise Commissioner, Kottayam and Others Versus Esthappan Cherian and Another, (2021) 10 SCC 210.
(vii) Mohinder Singh Gill and Another Versus The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405.
(viii) Anita Kishan Rao Videkar and Others Versus Union of India and Others, MANU/MH/0689/2021.

Submissions by CPS, Mumbai:
7. A detailed additional affidavit has been filed on behalf of CPS, Mumbai, appellant in LPA No. 87/2023. The various submissions made on behalf of CPS, Mumbai, are as follows:-
7.1 The notification dated 30th April, 2021 issued by respondent no. 1/MoHFW has to be applied prospectively. In the year 2009, ten qualifications offered by CPS, Mumbai were de-recognized by way of notification dated 02nd December, 2009 issued by respondent no. 1/MoHFW. This notification was clarified by letter dated 24th November, 2011, whereby the respondent no. 1 provided a prospective effect to the said notification dated 02nd December, 2009 by stating that students pursuing FCPS courses on or before 02nd December, 2009, would remain protected.
7.2 Through letters dated 27th July, 2021, 29th November, 2021 and 08th August, 2022, CPS, Mumbai had requested respondent no. 1/MoHFW to consider the issue of equivalence prospectively after having regard to the past position.
7.3 CPS, Mumbai is an examining body and is very similar in its functioning to NBE.
7.4 Indian Medical Degrees Act, 1916 was enacted in the year 1916 and in the Schedule referred to in Section 3 of the said Act, CPS, Mumbai was included. Additionally, CPS, Mumbai was included in the Indian Medical Council Act, 1933 pursuant to notification dated 02nd October, 1945. Subsequently, post independence, CPS, Mumbai was included in Schedule 1 of the IMC Act, 1956.
7.5 Apart from the State of Maharashtra, the FCPS courses are provided in the States of Orissa, Tripura, Karnataka, Madhya Pradesh, Meghalaya, Chhattisgarh and Union Territory of Dadra and Nagar Haveli.
7.6 When the courses of CPS, Mumbai were de-recognized, the CPS, Mumbai followed up with respondent no. 1/MoHFW for recognition of its courses. Pursuant thereto, in August, 2016, a Committee was constituted by the respondent no. 1 under the Chairmanship of Dr. Devi Shetty. The said Committee conducted an inspection on 30th August, 2016 in the establishment of CPS, Mumbai, in order to check syllabi, curricula, enrollment and affiliation of the institution. Thereafter, the said Committee prepared its report wherein it observed that the courses conducted by CPS, Mumbai had enhanced healthcare in Maharashtra in many ways. On the basis of Dr. Devi Shetty Committee report, respondent no. 1/MoHFW granted recognition to thirty nine Post-Graduate Diploma courses and seven Fellowship Courses offered by CPS, Mumbai.
7.7 By letter dated 25th March, 2021, CPS, Mumbai requested respondent no. 1/MoHFW to include CPS seats in the common counseling being conducted by the Directorate General of Health Services, Government of India. In response to the same, respondent no. 1/MoHFW had issued a letter dated 24th May, 2021 to all the concerned States and Union Territories requesting them to conduct the counseling for CPS courses.
7.8 In other states i.e., States of Rajasthan, Karnataka, Madhya Pradesh, Orissa, Chhattisgarh, Tripura, Meghalaya and Union Territory of Dadra and Nagar Haveli, the courses offered by CPS are only conducted by the concerned government departments from first year itself. In State of Gujarat, CPS courses are conducted through private hospitals and government hospitals also.
7.9 The appellants-doctors fall within the six FCPS courses that are recognized by both the Centre and the State of Maharashtra.

Submissions by respondent no. 3/National Board of Examinations in Medical Sciences (NBE):

8. The following submissions have been made on behalf of respondent no. 3/NBE.
8.1 The NBE is an autonomous body registered under the Societies Registration Act, 1860 which was established in the year 1975 with a prime objective of improving the quality of medical education. There are more than one thousand institutions accredited by the NBE imparting training in various broad and super specialties for the award of Post-Graduate qualification in broad and super specialties. The NBE, at present, conducts Post-Graduate and Post-Doctoral examinations in eighty two disciplines for the award of DNB.
8.2 Given the fact that the various courses are being conducted by the NBE and the DNB qualification is also being awarded by the NBE, it is fully empowered and competent to lay down the standards to be maintained and the eligibility criteria for the award of the DNB qualification. Accordingly, NBE has issued Information Bulletin on 19th January, 2021 wherein Clause 4.3.2 stipulated that candidates possessing FCPS qualification will not be eligible to apply for DNB final examination till the same is confirmed by the Government of India.
8.3 CPS, Mumbai does not award any MD/MS qualification and the FCPS qualifications granted by CPS, Mumbai are not equivalent to MD/MS qualifications.
8.4 The appellants-doctors are not pursuing any course of the NBE. They are only appearing for an examination that leads to the award of the DNB qualifications. The appellants-doctors have not pursued any course whatsoever with the NBE, pursuant to which they would have been eligible to take the examination. They have merely applied to take an examination with the NBE, for which they are not eligible in view of the fact that their FCPS qualification is not equivalent to MD/MS qualification.
8.5 FCPS courses have never been treated at par with the MD/MS courses. The NBE had sought clarifications from the Central Government as well as the NMC with regard to the equivalence of the FCPS courses with MD/MS. The Central Government vide its letter dated 30th April, 2021 had clarified that FCPS courses are not equivalent to the MD/MS courses.

Submissions by respondent no. 2/The National Medical Commission (NMC):

9. On behalf of respondent no. 2/NMC, the following submissions have been made:-
9.1 Mere recognition of FCPS courses does not necessarily imply equivalence with MS/MD degrees.
9.2 CPS, Mumbai was established by a society registered under the Societies Registration Act, 1860 and is neither affiliated to any university nor is a recognized university.
9.3 Admissions to courses in Medicine, both at Undergraduate and Postgraduate level in Medical colleges falling within the purview of the IMC Act, 1956 are made in accordance with inter-se merit drawn from a Common Entrance Test. Whereas, the admission in the courses offered by CPS, Mumbai is only on the basis of MBBS degree irrespective of any positioning of merit.
9.4 CPS, Mumbai does not have the rigor of monitoring/supervision of the NMC in the institutions approved by it. Recognizing qualifications by such organizations/societies such as CPS, Mumbai, shall burden the NMC of the risk of being accused of promoting sub-standard training.
9.5 NMC/Post Graduate Medical Education Board (PGMEB) vide letters dated 31st March, 2021, 10th January, 2023 and 13th April, 2023 has communicated its decision that all the CPS courses must be de-recognized and the equivalence granted to diploma courses should be withdrawn.
9.6 The grant of permission for starting Postgraduate courses is on the basis of infrastructure, teaching faculty and other training facilities including clinical material available in the concerned department. Prior to making any recommendations to the Central Government, the Medical Council assesses the faculty, bed strength in Clinical department, laboratory facilities and equipment in medical institutions. Further, the number of postgraduate students that can be admitted against a teaching faculty is also prescribed. Whereas, with regard to CPS, Mumbai, no such criteria has been followed and the institution is merely a degree awarding institution, without fulfilling the minimum requirements of Regulations framed under the IMC Act, 1956.
9.7 CPS, Mumbai is run by 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, which is sine qua non for every institution imparting medical education. Thus, CPS, Mumbai being a society without any proper infrastructure, teaching faculty etc. required for imparting medical education, is not legally entitled to conduct any medical course as well as confer any degrees whatsoever.
9.8 There is nothing on record to suggest that there is any common pool or common counseling for admission to courses in CPS, Mumbai. Therefore, proper procedure is not being followed for admission to the courses conducted by CPS, Mumbai. Reliance is placed upon the judgment of Supreme Court in the case of Alapati Jyotsana and Others Versus Union of India and Others, (2020) 5 SCC 320.
Submissions by respondent no. 1/Union of India, through Ministry of Health and Family Welfare (MoHFW):

10. On behalf of respondent no. 1/MoHFW, the following submissions have been made:-
10.1 The FCPS qualifications awarded by CPS, Mumbai are recognized medical qualifications for the purposes of the erstwhile IMC Act, 1956 and also for the purposes of the National Medical Commission Act, 2019 (NMC Act, 2019). These qualifications are registrable qualification for practice, however, the same are not equivalent to either MD or MS courses.
10.2 Even the NMC vide its letter dated 20th November, 2020 has clarified that there is no notification with respect to equivalence of the FCPS courses with MD/MS.
10.3 Ministry has neither decided nor made any substantive order, but has only clarified the position of the courses that already existed, based on the notifications dated 17th October, 2017 and 22nd January, 2018. The recognition to these courses were granted with terms and conditions, put at the bottom of the notification dated 22nd January, 2018. Thus, there is no question of retrospectivity of the notification dated 30th April, 2021. In support of its submissions, respondent no. 1/MoHFW has relied upon the judgment of Supreme Court in the case of Puneet Sharma and Others Versus Himachal Pradesh State Electricity Board Ltd. and Another, 2021 SCC OnLine SC 291.
Finding and Analysis of the Court:
11. Having heard learned counsel for the parties, this Court, at the outset, notes that six FCPS courses were recognized by notification dated 22nd January, 2018 issued by respondent no. 1/MoHFW, in the following manner:-
MINISTRY OF HEALTH AND FAMILY WELFARE

(Department of Health and Family Welfare)

NOTIFICATION

New Delhi, the 22nd January, 2018

S.O. 631 (E). -In exercise of the power conferred by sub-section (2) of Section 11 of the Indian Medical Council Act, 1956 (102 of 1956), the Central Government after consulting the Medical Council of India, hereby makes the following further amendments in the First Schedule of the Act, namely;

In the First Schedule of the IMC Act, 1956, following entries appearing under the main heading ‘College of Physicians and Surgeons, Mumbai’, the heading ‘Recognized Medical Qualifications’, shall be deleted:

xxx xxx xxx

The following Membership and Fellowship courses granted by College of Physicians and Surgeons, Mumbai shall be inserted, namely: –

Me Membership of College of Physicians and Surgeons, Mumbai (MCPS)
This qualification shall be a recognized medical qualification only when granted after the 30th April, 1944
Fellowship of the College of Physicians and Surgeons, Mumbai in Medicine (FCPS (Med.))

This qualification shall be a recognized medical qualification only when granted after the 30th April, 1954
Fellowship of the College of Physicians and Surgeons, Mumbai in Pathology (FCPS (Path.))

This qualification shall be a recognized medical qualification only when granted after the 30th April, 1954
Fellowship of the College of Physicians and Surgeons, Mumbai in Surgery (FCPS (Surg.))

This qualification shall be a recognized medical qualification only when granted after the 30th April, 1954
Fellowship of the College of Physicians and Surgeons, Mumbai in Dermatology (FCPS (Derm.))

This qualification shall be a recognized medical qualification only when granted after the 30th April, 1954
Fellowship of the College of Physicians and Surgeons, Mumbai in Midwifery and Gynacology (FCPS (Mid. & Gyn.))

These qualifications shall be recognized medical qualifications under this schedule only when they are held by persons holding any other medical qualification specified in this Schedule.
Fellowship of the College of Physicians and Surgeons, Mumbai in Ophthalmology (FCPS (Opth.))

Note: – (i) All the admissions should be through NEET PG and centralized counseling and as per Government policy from time to time.
(ii) The CPS qualifications shall not be treated as a recognized medical qualification for the purpose of teaching.

[F.No. V.11025/14/2015-MEP]

ARUN SINGHAL, Jt. Secy.

12. The respondent no. 3/NBE wrote letters dated 16th September, 2020 and 25th November, 2020 to the Central Government as well as the NMC seeking to ascertain the status of the equivalence of CPS qualifications with degrees offered by Indian Universities.
13. Subsequently, by letter dated 20th November, 2020, the respondent no. 2/NMC categorically stated that the qualifications awarded by CPS, Mumbai are registrable for practice, but there is no notification with respect to their equivalence to MD/MS. The letter dated 20th November, 2020 issued by NMC is reproduced as hereunder:-
????????? ???????????? ????
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,
Sd/-
(Dr. S. Ramji)
Sr. Advisor

14. Thereafter, respondent no. 3/NBE in the meeting of its Governing Body dated 24th December, 2020, took a decision that the FCPS candidates shall not be allowed to appear in the DNB final examination till such time, the clarification qua the equivalence of the FCPS qualification qua degrees awarded by the Indian Universities is received from the Central Government. Following the aforesaid decision, respondent no. 3/NBE issued Information Bulletin dated 19th January, 2021, wherein Clause 4.3.2 of the said Bulletin stipulated as follows:-
xxx xxx xxx

4.3.2.MD/MS Qualified Candidates:
Candidates who have passed the final examination, on or before 31st December 2020, leading to the award of a Post Graduate Degree (MD/MS), from an Indian University, which is duly recognized as per provisions of the repealed Indian Medical Council Act 1956/National Medical Commission (NMC) Act, 2019 can apply for the DNB Final examination in the same broad specialty.

As per decision of the Governing Body, NBE taken in its meeting held on 24.12.2020, candidates possessing FCPS qualifications awarded by the College of Physicians and Surgeons, 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 Govt of India.

Submission of proof of having qualified final examination for MD/MS degree on or before 31st December 2020 is an essential prerequisite. In case the candidate does not submit the requisite proof of qualifying final examination for MD/MS degree by the prescribed cut-off date, his/ her candidature shall be cancelled & fees forfeited.

xxx xxx xxx

15. Thus, letter dated 16th March, 2021 was written by respondent no. 3/NBE to respondent no. 1/MoHFW, which reads as under:-
Prof. Pawanindra Lal ????????? ??????? ?????
MS, DNB, FRCS (Ed), FRCS (Glasg), ????????? ??? ?????? ?????? ????????, ???? ?????
FRCS (Eng.), FACS, FAMS National Board of Examinations
Executive Director Ministry of Health & Family Welfare, Govt of India

Ref No: NBE/EDO/2021/965 Dated: 16.03.2021

Subject: To allow FCPS candidates to write ONB final examination
Request for equivalence of FCPS to MD/MS & regarding

Ref: MoHFW Letter No V.11025/52/2021-MEP {FTS: 8100103}
NBE Letter No NBE/EDO/2020/429 dated 16.09.2020 &
NBE Letter No NBE/EDO/2020/646 dated 25.11.2020

Dear Dr Vinayak,

This is with reference to the above referred letters regarding above captioned subject matter.

Candidates who have passed the final examination, leading to the award of a Post Graduate Degree (MD/MS), from an Indian University, which is duly recognized as per provisions of NMC Act 2019/repealed Indian Medical Council Act 1956 can appear in DNB Final examination in respective broad or super specialty. Candidates who have undertaken the FCPS courses from the College of Physicians and Surgeons, Mumbai also apply for the ONB Final Examination.

The Examination Committee of NBE observed following issues with the FCPS qualifications:

1. Equivalence of FCPS qualification and the training with its counterpart MD/MS programme is unclear as per the extant information. Whereas the FCPS qualification is registrable for practice but there is no notification with respect to their equivalence to MD/MS.

2. The CPS qualifications are not a recognized medical qualification for the purpose of teaching.

3. The training structure of FCPS courses, the curriculum followed, the scheme of the assessment for award of FCPS qualification is not known and is not supervised or regulated by NBE.

Accordingly, the Governing Body of NBE in its meeting held on 24.12.2020 has decided not to allow the FCPS candidates to appear in DNB Final Examinations till such time that there is clarity about FCPS courses. Same has been notified in the Information Bulletin for DNB Final Examination Dec 2020.

NBE has already sought a clarification from the MoHFW regarding equivalence of FCPS qualifications with their counterpart MD/MS qualifications vide aforementioned NBE letters, reply to which is awaited.

Kind regards,
Sincerely Yours,

Prof. Pawanindra Lal
Executive Director
Dr. Nipun Vinayak. lAS
Joint Secretary (MEP)
Ministry of Health & Family Welfare
Nirman Bhawan, New Deihl 110011

16. The aforesaid letter was followed by another letter dated 06th April, 2021 written by respondent no. 3/NBE to respondent no. 1/MoHFW and the NMC, which reads as under:-

Prof. Pawanindra Lal ????????? ??????? ?????
MS, DNB, FRCS (Ed), FRCS (Glasg), ????????? ??? ?????? ?????? ????????, ???? ?????
FRCS (Eng.), FACS, FAMS National Board of Examinations
Executive Director Ministry of Health & Family Welfare, Govt of India

Ref No: NBE/EDO/2021/10/2 Dated: 06.04.2021

Subject: Equivalence of CPS qualifications to MD/MS/PG Diploma
qualifications Regarding

Ref: NBE Letter No NBE/EDO/2021/965 dated 16.03.2021, NBE
Letter No NBE/EDO/2020/429 dated 16.09.2020 & NBE Letter No NBE/EDO/2020/646 dated 25.11.2020

Dear Dr Vinayak,

This is with reference to the above referred letters regarding above captioned subject matter.

Candidates who have qualified diploma and fellowship qualifications from the College of Physicians and Surgeons (CPS), Mumbai apply for DNB PDCET and DNB final examination respectively. However, NBE has observed following issues with the CPS qualifications:

1. Equivalence of CPS qualification and the training with their counterpart MD/MS/PG diploma programme is unclear as per the extant information. Whereas some of the CPS qualifications are registrable for practice, there is no notification with respect to their equivalence to corresponding MD/MS/PG diploma programme of NMC.

2. The CPS qualifications are not a recognized medical qualification for the purpose of teaching.

3. The training structure of CPS courses, the curriculum followed, the scheme of the assessment for award of CPS qualification is not known and is not supervised or regulated by NBE.

Accordingly, the Governing Body of NBE in its meeting held on 24.12.2020 has decided not to allow the CPS candidates to appear in DNB Final Examinations and DNB PDCET till such time that there is clarity about CPS courses (copy enclosed). Same has been notified in the Information Bulletin for DNB Final Examination Dec 2020 and DNB PDCET 2021.

It is requested to provide a clarification regarding equivalence of CPS qualifications with their counterpart MD/MS/PG Diploma qualifications.

Sincerely Yours,

(Prof. Pawanindra Lal)
Executive Director

17. Subsequently, by its letter dated 30th April, 2021, the respondent no. 1/MoHFW clarified that the FCPS qualifications awarded by CPS, Mumbai are recognized medical qualifications for practice, however, the same are not equivalent to either MD or MS courses. The letter dated 30th April, 2021 issued by respondent no. 1/MoHFW reads as under:-
No. C.18018/11/2021-MEP
Government of India
Ministry of Health & Family Welfare
*****
Nirman Bhavan, New Delhi
Dated the 30th April, 2021
To,
The Executive Director
National Board of Examinations
Medical Enclave, Ansari Nagar,
Ring Road, New Delhi 110029.

Subject: Equivalence of CPS qualifications to MD/MS/PG Diploma qualifications reg.

Sir,
I am directed to refer to letters No. NBE/EDO/2020/429 dated 16.09.2020 and No. NBE/EDO/2021/2012 dated 06.04.2021 on the subject mentioned above and to say that the matter of equivalence of CPS qualifications to MD/MS/PG Diploma qualifications has been examined in the Ministry and the following is hereby conveyed:

i. The DPB, DGO, DCH, MCPS, FCPS (Med.), FCPS (Path.), FCPS (Surg.), FCPS (Derm.), FCPS (Mid. & Gyn.) and FCPS (Opth.) are the only recognized CPS courses at present.

ii. The aforementioned FCPS qualifications awarded by the CPS, Mumbai are recognized medical qualifications for the purposes of the erstwhile Indian Medical Council Act, 1956 and also for the purposes of the National Medical Commission Act, 2019. These qualifications are registrable qualification for practice, however, the same are not equivalent to either MD or MS courses.

iii. The Diploma qualifications DPB, DGO and DCH – awarded by the CPS, Mumbai are equivalent to their corresponding other recognized Diploma qualifications.
Yours faithfully,

(Amit Biswas)
Under Secretary to the Govt. of India
Telefax: 011-23061120

18. Thereafter, by its Information Bulletin issued in June, 2021, the respondent no. 3/NBE in Clause 4.3.2, categorically stipulated that candidates possessing FCPS qualifications awarded by CPS, Mumbai, are not eligible to apply for DNB final examinations. The said Clause 4.3.2 reads as under:-
xxx xxx xxx

4.3.2.MD/MS Qualified Candidates:

Candidates who have passed the final examination, on or before 31st August 2021, leading to the award of a Post Graduate Degree (MD/MS), from an Indian University, which is duly recognized as per provisions of the National Medical Commission (NMC) Act, 2019 and the first schedule of the IMC Act can apply for the DNB Final examination in the same broad specialty.

As per the MoHFW letter No. C.18018/11/2021-MEP dated 30.04.2021, the FCPS qualifications awarded by the College of Physicians and Surgeons, Mumbai are not equivalent to either MD or MS courses. Accordingly, candidates possessing FCPS qualifications awarded by the College of Physicians and Surgeons, Mumbai are not eligible to apply for DNB Final Examinations.

Submission of proof of having qualified final examination for MD/MS degree on or before 31st August 2021 is an essential prerequisite. In case the candidate does not submit the requisite proof of qualifying final examination for MD/MS degree by the prescribed cut-off date, his/ her candidature shall be cancelled & fees forfeited.

xxx xxx xxx.

19. Perusal of the aforesaid communications make it evident that it has been the consistent stand of the respondents that the qualifications awarded by the CPS, Mumbai, which are recognized under Section 11 of the IMC Act, 1956 by the Central Government vide notifications dated 17th October, 2017 and 22nd January, 2018, can be considered for grant of additional qualification and registration under Section 33(3) of the NMC Act, 2019, for the purpose of working as a Doctor/Consultant/Specialist in a hospital. However, the said qualifications are not equivalent to MD or MS qualifications.
20. It is relevant to consider that the note at the foot of the notification dated 22nd January, 2018 issued by the respondent no. 1/MoFHW, clearly provides that the qualifications awarded by CPS, Mumbai cannot be treated as recognized medical qualifications for the purpose of appointment as teaching faculty. Thus, respondent no. 2/NMC in its counter affidavit has explained as follows:-
xxx xxx xxx

10. It is also relevant to state that the Note at the foot of Central Govt. Notifications dated 17.10.2017 & 22.01.2018 clearly provides that the qualification awarded by respondent no. 4-College of Physicians & Surgeons of Mumbai, cannot be treated as recognized medical qualifications for the purpose of appointment as Teaching Faculty. Thus, candidates possessing such qualifications cannot be appointed as Teachers Faculty in medical colleges / institutions in reference with the provisions of Minimum Qualifications for Medical Institutions Regulations, 1998. It is pertinent to state that Teachers / Faculty in medical colleges/ institutions, except Tutors / Residents / Registrars / Demonstrators, must possess requisite recognized postgraduate medical qualification in their respective subjects as per the provisions of Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998. Senior Residents is one who is undergoing residency in the concerned postgraduate subject after obtaining Postgraduate Degree / Diploma (MD / MS / DNB / Diploma) and is below the age of 45 years as per the provisions of Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998.

xxx xxx xxx

13. It is further submitted that Diplomate of National Board in Broad Speciality Qualifications as well as Super-Speciality Qualification as granted by the NBE are recognized medical qualification as per the provisions of Section 37 of the NMC Act, 2019 and are further granted equivalence in all respects to the corresponding Postgraduate Qualification as well as Super-Speciality Qualifications under the NMC Act, 2019 in reference with Section 37(2) of the NMC Act, 2019.

xxx xxx xxx
(Emphasis Supplied)

21. It is also relevant to note that in respect of equivalence of qualifications granted by CPS, Mumbai, the Central Government vide its letter dated 30th April, 2021 has clarified that the various FCPS qualifications, are registrable for medical practice, however, the said qualifications are not equivalent to either MD or MS qualifications. In this regard, the respondent no. 1/MoHFW, has categorically stated that the aforesaid letter dated 30th April, 2021 was issued as a clarification, with a view to clarify the position as regards the CPS courses that already existed. Thus, respondent no. 1/MoHFW has explained its position in the short written submissions filed on its behalf, which reads as under:-
xxx xxx xxx

14. It is submitted that before the clarification of the Ministry of health and family welfare vide communication/letter dated 30.04.2021 has already clarified by the NMC, vide letter dated 20.11.2020 that With reference to your letter No. NBE/ED O/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.

15. It is submitted that the ministry has not decided or made something substantive order but only clarify the position of the courses already existed, based on the notification dated 17.10.2017 and 22.01.2018, as the recognition to these courses were granted with terms and conditions put at bottom of the notification dated 22.01.2018. The letter dated 30.04.2021 has only clarified the ambiguity as sought by the respondent no. 3/NBE it does not require notification public at large. It does not make any substantive changes in the notification but only clarify the terms and conditions mentioned in the notification and hence this cannot be challenge on the ground of retrospective operation. It has been clarified that since notification clearly stipulates that the CPS qualifications shall not be treated as a recognized medical qualification for the purpose of teaching and hence these qualifications are registrable qualification for practice, however, the same are not equivalent to either MD or MS courses because the MD or MS qualifications are mandatory for teaching.

16. It is submitted that for the sake of argument the letter dated 30.04.2021 has retrospective operation, the presumption against retrospective operation is not applicable to clarificatory or, declaratory statute. In Para-34, Para-35 and para-36 of the recent judgment of Honble Supreme Court in Civil Appeal No. 1318-1322 of 2021, titled as Puneet Sharma and Ors vs Himachal Pradesh state Electricity Board ltd Anr, the Honble Supreme Court has reiterated the settled law regarding retrospective operation of rules/law/order etc.
(Emphasis Supplied)

22. In view of the aforesaid, the undisputed position that emerges is that the Central Government has only clarified the status of the FCPS qualifications, as already existing. It is also undisputed that there is no notification in existence which recognizes the FCPS qualifications as equivalent to MS/MD. Therefore, the submission raised on behalf of appellants with regard to retrospectivity of the notification dated 30th April, 2021, is totally misplaced. The issue of retrospective application of the letter dated 30th April, 2021 issued by respondent no. 1/MoHFW has wrongly been raised by the appellants, as by way of the aforesaid letter, the respondent no. 1/MoHFW has only sought to clarify a position that already existed. It is not the case of the appellants that equivalent status was granted to FCPS qualification with MS/MD earlier, which has been sought to be withdrawn by the respondent no. 1/MoHFW by its letter dated 30th April, 2021.
23. This Court records the unequivocal stand of respondent no. 2/NMC, wherein it has gone to the extent of stating that in recognizing the qualifications by organizations like CPS, Mumbai, the NMC carries the risk of being accused of promoting sub-standard training and specialists. Letter dated 31st March, 2021 in this regard, issued by the NMC is reproduced as hereunder:-
??????/ Phone: 25367033, 25367035, 25367036 ?????-14, ??????-8, ???????, ??? 1, ???????? 77-
?????/Fax : 0091-11-25367024 Pocket-14, Sector-8, Dwarka
?-??? / E-mail: secy-mci@nic.in Phase 1, New Delhi-77

?????????????????????????
National Medical Commission
Postgraduate Medical Education Board (PGMEB)

No. NMC/MCI-23(1)/2021/Med./ 007204 Date: 31-03-2021

The Joint Secretary,
Medical Education Policy
Government of India,
Ministry of Health & Family Welfare,
Nirman Bhavan, New Delhi

(Kind Attn.: Shri Chandan Kumar, US (MEP))

Subject: VIP reference of Shri Jai Prakash Hon’ble MP, Lok Sabha and PMO Reference (PMO ID No. 5328875/PMC/2021/SW_dt_12.02.2021) regarding representation dated 10.12.2020 from Dr. G.K. Maindarkar (President, College of Physicians and Surgeons of Mumbai).

Sir,

Reference the Ministry’s letter dated 6.1.2021 (No. V.11025/01/2021-ME-I(FTS-8090760) forwarding a reference from Shri Jai Prakash, Hon’ble MP, Lok Sabha regarding the representation from Dr. G.K. Maindarkar (President, College of Physicians and Surgeons of Mumbai) and also the letter dated 23.2.2021 forwarding a PMO reference on the same subject.

The matter with regard to the recognition of courses offered by the College of Physicians and Surgeons (CPS), Mumbai was considered by the National Medical Commission at its meeting on 16.3.2021. The Commission considered the representation of Dr. G.K. Maindarkar, the Report of the Committee to provide the Hand holding support to College of Physicians and Surgeons, Mumbai and all other documents pertaing to CPS available with the Commission (including those related to the period of the erstwhile MCI).

The Commission noted that the Hand holding Committee had in its report observed that since every developed country has more PG seats than UG seats, and the same is not the case with India, the recognition and expansion of CPS courses would benefit, especially to provide well trained specialist doctors in rural and peripheral areas. The Commission however, is not in agreement with the observations of the need for equal PG seats as UG seats, as the health care structure in the country differs from that in the countries alluded to. The Commission also feels that the country needs more general physicians and/or Family physicians than specialists to cater to the needs of our population. The argument that those with qualifications conferred by CPS would be available to under-served and rural areas cannot be justified if such under trained physicians/specialists were to serve the most needy in the country. Further, the available documents do not support that those with CPS qualifications have predominantly served in rural/peripheral areas nor that they have contributed in substantial measure to the improvement of health care indicators in the regions where they are working/have worked. 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 sub-standard 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.

This is for your information and necessary action, and is issued in pursuance of the decision taken by the NMC in its meeting held on 16.3.2021.
Yours faithfully,

(Dr. R.K. Vats)
Secretary

24. This Court also records the Minutes of the Meeting dated 28th June, 2022 of the PGMEB under the NMC, wherein, the PGMEB has recommended NMC to take measures to set right the various irregularities in the courses conducted by CPS, Mumbai and to de-recognize the said courses till necessary corrections are done. The Minutes of the Meeting dated 28th June, 2022 of the PGMEB of the respondent no. 2/NMC, is reproduced as under:-
?????? / Phone: 25367033, 25367035, 25367036 ?????-14, ??????-8, ???????, ??? – 1,????????-110077
?????/Fax: : 0091-11-25367024 Pocket-14, Sector-8, Dwarka
?-??? / E-mail : pomeb.section@nmc.org.in Phase-1, New Delhi – 110077

????????? ???????????? ????

National Medical Commission
Post Graduate Medical Education Board (PGMEB)

No. NMC/PGMEB-Admin/02/2021-Med

The meeting of the Post Graduate Medical Education Board was held under the chairmanship of Dr Vijay Oza, President, PGMEB on 28th June, 2022 at 12.00 Noon in Room No.119, 1st Floor, Sector-8, Pocket-14, Dwarka, New Delhi.

Attendees:-

S. No.
Name
Designation
1
Dr Vijay Oza
President, Postgraduate Medical Education Board
2
Dr. R.K. Dhiman
Part Time Member
3
Dr. Saleem-ur-Rehman
Part Time Member

Additionally, Mr. Aujender Singh, Deputy Secretary (PGMEB), Mr. Pramod Pant, PPS, Ms Navaneetha Pramod, Section Officer (PGMEB), Ms Rashmi, ASO and Shri Deepak, ASO were also present to facilitate the meeting.

Minutes of the Meeting
2. The Post Graduate Medical Education Board decided the following four major policy matters/issues, which are detailed below, before taking up the Agenda items:

2.1 Recognition of Courses offered by CPS, Mumbai:
The matter of recognition of qualifications provided by the College of Physicians and Surgeons (CPS), Mumbai, was discussed in detail in the Board’s meeting. The Board observed that the CPS is running various courses of qualifications since 1916 and these courses are included in the Third Schedule, Part-I of the IMC Act, 1956 (Annexure-I).

The matter of continuation of the recognition of the courses of qualifications has been debated since long. The Ministry of Health & Family Welfare (MoH&FW), in its letter dated 30th April, 2021, has informed the following (Annexure-II):-

i. The DPB, DGO, DCH, MCPS, FCPS (Med.), FCPS (Path.), FCPS (Surg.), FCPS (Derm.), FCPS (Mid & Gynae) and FCPS (Opth.) are the only recognised CPS courses at present;

ii. The aforementioned FCPS qualifications awarded by the CPS, Mumbai are recognised medical qualifications for the purposes of the erstwhile Indian Medical Council Act, 1956 and also for the purposes of the NMC Act, 2019. These qualifications are registerable qualification for practice, however, the same are not equivalent to either MD or MS
courses;
iii. The Diploma qualifications DPB, DGO and DCH- awarded by the CPS, Mumbai are equivalent to their corresponding other recognised Diploma qualifications. NMC, in its letter dated 31.03.2021 to the MoH&FW, have strongly recommended that the qualifications of the College of Physicians and Surgeons of Mumbai currently included in the Schedule of the IMC Act, 1956 (now the NMC Act, 2019) should be denotified (Annexure-III).

In reply, the MoH&FW had written on 24.05.2021, that as per the NMC Act, 2019 the power of recognition or otherwise lies with the NMC. Hence, it requested NMC to take appropriate action in the matter and intimate the Ministry. In this connection, the Chairman, NMC vide his note dated 18.05.2022 asked the Post Graduate Medical Education Board (PGMEB) for its comments (Annexure-IV).

The PGMEB discussed this issue in detail and made the following
observations:-

i. As per Section 25 of the NMC Act, the powers and functions of the PGMEB are to determine and develop and maintain best standards of medical education at the postgraduate level and super-specialty level by framing guidelines of requirements and standard for setting up medical institutions and medical colleges; and by developing competency based dynamic curriculum.
ii. Further, as per Section 35 of the NMC Act, 2019, the PGMEB has to recognise and renew the courses of qualifications.

Based on all the above observations, as per Section 25(2) of the NMC Act, 2019, the Board decided to recommend NMC and MARB to take measures to set right these irregularities and, if necessary, derecognise these courses till necessary corrections are done.

25. In fact, it is the clear stand of respondent no. 2/NMC that the courses run by CPS, Mumbai do not come under the monitoring control of NMC. Therefore, the PGMEB recommended that the equivalence given by MoHFW to the three diploma courses of CPS, Mumbai, should also be withdrawn. Letter dated 13th April, 2023 issued by respondent no. 2/NMC, reads as under:-
National Medical Commission
Post Graduate Medical Education Board (PGMEB)

No. P(23)(l)(02)/2023-PGMEB Date: 13.04.2023

To
Shri Sunil Kumar Gupta,
Under Secretary
Ministry of Health & Family Welfare
Nirman Bhawan, New Delhi-110077

Sub.- Clarification regarding recognition of Diploma courses offered by the CPS, Mumbai reg.

Sir,
Please refer to your letter no. V-110025/14/2015-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 he courses run by CPS, Mumbai does not come under the monitoring control of National Medical Commission. Therefore, PGMEB does not agree to providing equivalence to courses of 466 students recognized by the MoHFW vide its letter dated 18.10.2022.

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

3. These issues with the approval of Competent Authority.

Yours Faithfully

Rita Singh
Under Secretary, PDMEB

26. Thus, it is manifest that the appellants, who have taken admission in FCPS courses between 02nd December, 2009 and 22nd January, 2018, have taken admission in an unrecognized course. The appellants, who have taken admission in FCPS courses after 22nd January, 2018, have taken admission in a course which is recognized, however, is not equivalent to MD/MS. Thus, this Court is in agreement with the findings of the learned Single Judge in the impugned judgment on the question of retrospective application, wherein the learned Single Judge has held as follows:-
xxx xxx xxx

33. It has been argued that notwithstanding non-recognition of equivalence of FCPS courses impugned policy decision must not be given retrospective application so as to prejudice candidates who sought admission in FCPS courses, relying on past practice of Respondents. However, since the impugned letter merely clarified the position that was already in force since 22nd January, 2018, the question of retrospective application does not arise. Declaring impugned policy decision to have prospective application and permitting Petitioners to appear for DNB examination, would be beyond the ambit of judicial review. Under the scheme of IMC Act and general practice, MoHFW is the final authority to decide how conditions introduced by notification of 2018 are to operate. Even otherwise, it is settled law that a declaratory or clarificatory rule operates from a prior date covering antecedent events since it merely elucidates the initial intent of the enactment. As discussed hereinbefore, impugned letter was sent by MoHFW to clarify the position qua operation of notification of 2018, and thus, it shall be deemed to apply to all candidates, including Petitioners, who seek to enjoy the benefit of equivalence of their courses with MS/MD degrees and appear for postgraduate level professional examinations.

34. That apart, NBE itself has reserved an absolute right to alter, amend or modify its guidelines under the information bulletin. From a perusal of stipulations contained in previous years information bulletins issued by NBE for DNB examinations, it manifests that NBE cautioned prospective candidates that they shall not be entitled to claim any right whatsoever from past schedules, policies or guidelines of NBE. It would not be in the interest of either the candidates or the medical profession to restrict this power of NBE. It can also not be said that NBE has usurped its jurisdiction or power, that would warrant quashing of impugned clause 4.3.2 of the information bulletins.

35. As regards those Petitioners who have already appeared in DNB examination in the year 2020 and their results have been withheld, there is merit in NBEs contentions that such Petitioners were only provisionally permitted to appear in the examination, a fact which was communicated to them not only by way of the information bulletin for the year 2020, but also by e-mail communication dated 22nd September, 2020 in following terms:

Dear Candidate,

This is with reference to your application for DNB Final (Theory) Examination June 2020 session.

You have been provisionally allowed to appear in the aforementioned examination purely on provisional basis. Please be apprised that the appearance in examination shall be provisional subject to receipt of clarification awaited from the Govt of India and Medical Council of India regarding equivalence of FCPS qualifications with the corresponding MD/MS counterparts.

The permission granted for appearance shall not allow the candidates to exercise
any legal rights in their favour for considering their candidature and/or declaration of result and/or appearance in practical examination in case the clarifications received from Gol and/or MCI do not confirm the equivalence of FCPS with corresponding MD/MS courses

36. Therefore, it is abundantly clear that concerned Petitioners candidatures were only provisional and no relief can be claimed by them since status of equivalence has now been clarified.

37. Lastly, as regards Petitioners plea of legitimate expectation, this Court in Dr. Divyesh J. Pathak and Ors. v. National Board of Examinations and Anr. has held that the principle of legitimate expectation is inapplicable to matters pertaining to education and as such, Respondents cannot be compelled to continue recognising equivalence of FCPS courses with MS/MD degrees and thereby permitting all candidates similarly placed as Petitioners, to take NEET-SS or DNB examination on that basis.

xxx xxx xxx
(Emphasis Supplied)

27. It is no longer res-integra that Court cannot apply its own evaluation criteria and cannot substitute its own opinion in place of decisions taken by specialists/experts. The high standards in medical education cannot be compromised with. If an expert body has determined that FCPS courses run by CPS, Mumbai do not meet the supervision of NMC, the Court cannot review the expert body’s evaluation with respect to the eligibility criteria or quality of education. In view thereof, it is prudent for this Court to leave it to the wisdom of the experts to take decisions in such academic matters, who have a deeper understanding of the issues at hand, than the Courts when it comes to matters of academics. Thus, Supreme Court in the case of All India Council for Technical Education Versus Surinder Kumar Dhawan and Others1, has held as under:
xxx xxx xxx
16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realising the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.
17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. In J.P. Kulshrestha (Dr.) v. Allahabad University [(1980) 3 SCC 418 : 1980 SCC (L&S) 436] this Court observed : (SCC pp. 424 & 426, paras 11 & 17)
11. Judges must not rush in where even educationists fear to tread.
***
17. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.
xxx xxx xxx
(Emphasis Supplied)

28. Similarly, the Supreme, Court on the aspect of Courts interference in academic matters in the case of Medical Council of India Versus Sarang and Others2, has held as under:

xxx xxx xxx

6. In matters of academic standards, courts should not normally interfere or interpre