(Prayer: This Writ Petition is filed Under Articles 226 & 227 of the Constitution of India, praying to direct the R-1 to refund the excess fee paid by the petitioners Nos.1 to 25 as per Annexure-B1 to B25, after deducting the prescribed fee of sum of Rs.13,400/- as university fee and etc.)1. Though the petitions were filed by 25 petitioners seeking for various reliefs, now the writ petitions are restricted to petitioner Nos.1 to 3 relating to payment of stipend to them who were pursuing post graduate courses in the respondent No.1- Rajarajeshwari College.2. Petitioner Nos.4 to 25 have filed affidavits stating that the lis between them and the college has been amicably settled in relation to withdrawal of the amount and also payment of stipend and therefore, they do not wish to prosecute the writ petitions. The said affidavits are placed on record. Accordingly, the writ petitions filed by the petitioner Nos.4 to 25 stand dismissed as withdrawn.3. Now the dispute is restricted to the claim made by the petitioner Nos.1 to 3 for grant of stipend in accordance with the Rules and Regulations of the State Government and the MCI Post Graduate Medical Education Regulations, 2000 ('Regulations' for short).4. The petitioner Nos.1 to 3 were admitted to post graduate studies in different subjects under the institution of respondent No.1-The Rajarajeshwari Medical College at Bangalore for the academic year 2017-18.5. The genesis of the dispute relates to the alleged demand of Rs.1,50,000/- said to have been made by the respondent No.1 college towards clinical fee per year for three years academic course for the purpose of uploading the synopsis to Rajiv Gandhi University of Health and Science and non-payment of stipend to the petitioners 1 to 3 ('petitioners' for short). In view of the submissions made by the learned counsel for the respondent No.1 college that they would not demand such fee of Rs.1,50,000/- per year towards clinical fees from the present petitioners, the controversy now boils down to the grant of stipend to these petitioners.6. The gist of the objections of the respondent No.1 college is that the petitioners have rushed to this court invoking Articles 226 and 227 of the Constitution of India without availing the alternative remedy for the relief of direction under Section 5(8) of the Karnataka Professional Educational Institutions (Regulations of Admission and Determination of Fee) Act, 2006 (Karnataka Act 8 of 2006). The order passed under similar circumstances by the Overseeing Committee is the subject matter of W.P.No.4244/2018 filed by the respondent-college as petitioner therein, and the same is pending before the Division Bench. The challenge made to the Regulations 13.3 of the MCI Regulations is pending before this Court. NOC could be issued from the college/institution to the students to submit thesis subject to fulfilling of MCI regulations viz.,(a) 80% attendance during each calendar year;(b) under clause 13.9 of the PG Regulations, a PG student of a P.G. degree course in broad specialties/super specialties would be required to present one poster presentation, to read one paper at a national/state conference and to present one research paper which should be published/accepted for publication/sent for publication during the period of his postgraduate studies so as to make him eligible to appear at the postgraduate degree examination;(c) to work as full time resident as per clause 13.2 of PG Regulations, 2000 (Amendment 2018) which states that "candidates joining the PG training programme shall work as Full Time Residents during the period of training, attending not less than 80% of the training during each calendar year and given full time responsibility, assignments and participation in all facets of the educational process";(d) As per RGUHS Regulations and Curricula for PG Degree and Diploma courses in Medical Sciences, 2000, students atleast should present four journal club for every year and total 12 presentations in three years;(e) As per clause(2) of RGUHS Regulations and Curricula for PG Degree and Diploma Courses in Medical Sciences, 2000, "Journal club -recommended to be held once a week, all the PG students are expected to attend and actively participate in discussion and enter in the log book relevant details. Every candidate must make a presentation from the allotted journals of selected articles atleast four times a year and a total of 12 presentations in three years. The presentations would be evaluated using checklists and would carry weightage for internal assessment".(f) as per clause (3) of RGUHS Regulations and Curricula for PG Degree and Diploma Courses in Medical Sciences, 2000, a seminar has to be held once in a week, all the PG students are expected to attend and actively participate in discussion and enter in the log book relevant details. Further, the presentations would be evaluated using check lists and would carry weightage for internal assessment.Arguments advanced on behalf of the learned counsel for the petitioners:7. Learned counsel for the petitioners contended that the respondent No.1 has issued letter of appointment dated 30.5.2017 along with the terms and conditions stipulated therein, to the petitioners and also to others who have joined PG course commonly with the 1st respondent wherein, it is stated that the monthly consolidated salary will be paid as per the norms but did not pay anything and at the time of MCI inspection, a fake salary certificate of all the petitioners has been produced as if the 1st respondent is paying the salary to the petitioners herein at the rate of Rs.30,000/- per month. In view of such fake salary certificate submitted to the Medical Council of India at the time of inspection, without paying the same and even without opening the account in the name of the PG students, the respondent No.1 has misguided and misleaded both the University as well as the Medical Council of India.8. It was further contended that the 6th respondent had issued a Circular as early as on 10.9.2015 to all the medical colleges affiliated to the 6th respondent university which includes the 1st respondent, directing them to pay stipend as required under clause 13.3 of PG Medical Education Regulations, 2000. In similarly situated circumstances, the other private institutions like St.Johns Medical College, YENEPOYA, SDM College of Medical Sciences and Hospital, Dharwad are paying stipends. However, the respondent No.1 college is deliberately violating the regulations framed by the Medical Council of India and in order to escape from the payment, now they have come with a defence that clause 13.3 of Regulations has been challenged by them before this court and the matter is pending. The 1st respondent is denying the legitimate entitlement of the petitioners in respect of stipend and further demanding excess amount of Rs.1,50,000/- per year from the petitioners failing which they have threatened to take action in not issuing the admission tickets nor allowing them to take up the examination. Since the petitioners have approached the court, they are not allowing them to sign the attendance register, log book etc., and the same has been retained with the Principal of the 1st respondent college.9. The 1st respondent college did not issue NOC immediately after passing of order by this court on 4.6.2020. Despite the dismissal of Writ Appeal No.363/2020 on 30.7.2020, no NOC was issued. On the other hand, NOC was issued only at the time of examination. The petitioners were under lot of pressure. The threats and mental pressure to which the petitioners were put to is unexplainable.10. It was submitted that for the last three years the respondent college did not raise any voice regarding the shortage of attendance nor issued any notice of intimation regarding such shortage of attendance. All the petitioners have secured more than 80% attendance and fulfilled all the formalities within the stipulated time. In order to deprive the stipend to which the petitioners are legally entitled, the respondent college has come out with new grounds.11. It was submitted that though the petitioners have got more than 80% attendance, as the petitioners were deputed to work outside as per RGUHS Rules at NIMHANS and other hospitals, the external postings made and the attendance in that regard was not taken into consideration. The postings of the petitioners to other Special Specialty departments has not been disclosed by the 1st respondent. The attendance extract issued by the other hospitals would indicate that the petitioners were deputed on external posting which was forwarded to the 6th respondent and are placed on record at Annexures-S6 and S7. It is submitted that if all these are taken into consideration, the petitioners will be having attendance of more than 90%. Therefore, the 1st respondent has not disclosed the true and correct facts.12. It was further contended that some of the students who have less than 80% of attendance were allowed to take up the examinations and in this regard Annexures- T, T1 to T9 are placed on record. Thus it was argued that many of the students who have not raised their voice regarding non payment of the stipend and other demands and receipt of excess amount by the 1st respondent college were permitted to take up practical as well as theory examination without any objection regarding the shortage of attendance and presentation of dissertation. During the lock down period, the MCI has issued a communication dated 7.4.2020 directing to continue the services of post graduate students in handling Covid-19 pandemic and also directed enhanced payment of stipend to all such post graduate students during the extended period. The petitioners approached the Director of Medical Education. The Director of Medical Education on 17.6.2020 issued a communication to the 1st respondent directing the 1st respondent college to issue NOC and to report the action taken in this regard. The conduct of the 1st and 6th respondents clearly demonstrate the vindictive attitude shown against the petitioners intentionally.13. This court vide order dated 13.11.2019 has directed the respondent No.1 to permit the petitioners to submit their dissertation/thesis without demanding the clinical fee of Rs.1,50,000/- and to issue NOC accordingly, placing on record the submissions made by the learned counsel for the respondent No.1 college that the said respondent is not demanding clinical fee of Rs.1,50,000/- from the petitioners at present. Respondent No.1 college has to scrupulously comply with Regulation 13.3. The petitioners cannot be deprived of their legal entitlement to stipend. Accordingly sought for a direction to the respondent No.1 to pay the stipend and to refund the excess fee to the petitioners.Arguments advanced on behalf of the respondent No.1 College:14. Learned counsel for the respondent No.1 College has argued that the question of refund of excess fee does not arise as the petitioner Nos.1 to 3 have neither paid nor the 1st respondent has collected excess fee from them. Inviting the attention of the court to clause 13.2 of Regulations 2000, the learned counsel submitted that the PG students are considered as residents and they are supposed to stay in the hostel and are to be available 24/7 in the hospital as per the said clause. In the present case the petitioners were neither staying in the hostel nor available 24/7 in the hospital. They were available in the hospital only from 9.00 a.m to 4.00 p.m as against MCI Regulations. Therefore, they are not considered as residents as per MCI Regulations. Hence, the petitioners are not entitled to claim any stipend.15. Learned counsel further argued that there is shortage of attendance relating to the petitioners and the same has been intimated through the Registrar on 6.3.2020. The 1st petitioner has 64.3% attendance in the I year, 68% in the II Year and 78% in the III Year apart from one shortage in case presentation. The 2nd petitioner is having shortage in attendance with 77% in the II year followed by shortage of attendance in journal club and seminars. The 3rd petitioner is having shortage in case presentation as is evident from the records. The petitioners 1 to 3 have been able to secure an order of change of examination centre without notice to the respondent college and by misrepresenting and colluding with the officials of the University, they have been able to secure the results amongst other students.16. Learned counsel further submitted that the respondent college has sought for clarification from the office of the MCI, New Delhi, as to whether the students who are non-residents, not being in the college as required under the said Regulations, would be entitled for payment of stipend to which there is no response and the MCI is required to clarify on this aspect of the matter.17. Learned counsel for the respondent No.1 college refuting the arguments of the petitioners contended that no documents have been produced by the petitioners to establish that they were full time residents. If their deputation to other hospitals, if any, as claimed by them, is also considered while calculating/determining their percentage of attendance, it is the duty and responsibility of the PG students to ensure their full time presence in the college and attending the patients in the hospital apart from guiding the undergraduate students.Submissions on behalf of the Medical Council of India:18. Learned counsel appearing for the MCI submitted that the respondent No.1 has failed to follow the mandate of 13.3 of the Regulations. Respondent No.1 College should ensure payment of stipend. Action has to be taken against respondent No.1 college for not taking any steps from the academic year 2017 if the PG students are not following the Regulations. It is mandatory on the respondent No.1 college to comply with the Regulations in letter and spirit. Indeed in the statement of objections the defence taken was that the college cannot afford to pay. Secondly, the vires of clause 13.3 of the Regulations is challenged. Now, the ground urged is, petitioners have not complied with Regulation No.13.2. PG course being a residency course, on campus residency facilities are required to be provided. No such notice or communication was issued either to the petitioners or informed to the MCI for not paying the stipend to the PG students. Referring to the judgment of the Hon'ble Apex Court in Dr.Preeti Srivastava and another Vs. State of M.P. and others reported in (1999)7 SCC 120, it was vehemently argued that no such defence can be taken by the respondent No.1 college at this stage inasmuch as the petitioners are non residents. In view of repeal of MCI Act and National Medical Council Act coming into force, the query made by the respondent No.1 college with the MCI on 18.2.2020 and the decision of the MCI is awaited on this aspect are all only the device designed to cover up their conduct in violating the Regulation 13.3. PG Courses are required to be conducted strictly in accordance with the Regulations. Respondent No.1 college is at fault. The objections now raised regarding the question of facts by the college, cannot be considered in the writ petition. No rowing enquiry could be conducted at this length of time. Accordingly, it was argued that the respondent No.1 college is bound to pay the stipend to the petitioners.Submissions on behalf of the State Government:19. As regards the collection of excess fees, the State Government has filed the statement of objections stating that the students are required to approach the Admission Overseeing Committee who is the competent Authority to enquire into the matters with respect to excess fees under Karnataka Professional Educational Institutions (Regulations of Admission and Determination of Fee) Act, 2006. It is submitted that the 3rd respondent vide letter dated 7.11.2017 has communicated to the 1st respondent college that the college shall not collect any excess fees from the students and if it is found that they are collecting excess fees from the students as against the same determined under the consensual agreement, action shall be initiated against the college. In the same letter State Government has reiterated that no students shall be troubled while sending the thesis of the post graduation to the University.20. It is further submitted that the 3rd respondent pursuant to the complaint made by the students of the post graduation course has issued a letter dated 18.2.2019 directing the 6th respondent to withdraw the affiliation granted to the 1st respondent college, as the 1st respondent has not returned the excess fees collected by them.21. As regards stipend, it is submitted that the State Government has issued the Government Order dated 30.9.2015 fixing the stipend to be paid for the PG students of Diploma/Degree/Super Specialty courses. As per the MCI Regulations, the respondent No.1 institution is bound to pay the stipend to the PG students.Submissions on behalf of the University:22. Learned counsel appearing for the University submitted that the university has announced the results in compliance with the directions issued by this court. All the allegations made by the petitioners are denied as baseless.23. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.ANALYSIS:Regulation 13 of the Regulations reads thus:13. Training Programme. -13.1. The training given with due care to the Post Graduate students in the recognised institutions for the award of various Post Graduate medical degrees/diplomas shall determine the expertise of the specialist and/or medical teachers produced as a result of the educational programme during the period of stay in the institution.13.2. All the candidates joining the Post Graduate training programme shall work as full time residents during the period of training, attending not less than 80% (Eighty percent) of the training during each calendar year, and given full time responsibility, assignments and participation in all facets of the educational process.The above sub-clause 13.2 is substituted in terms of Gazette Notification published on 20.10.2008 and the same is as under:-Clause 13.2."All the candidates joining the Post Graduate training programme shall work as 'Full Time Residents' during the period of training and shall attend not less than 80% (Eighty percent) of the imparted training during each academic year including assignments, assessed full time responsibilities and participation in all facets of the educational process".13.3 The Post Graduate students of the institutions which are located in various States/Union Territories shall be paid remuneration at par with the remuneration being paid to the Post Graduate students of State Government medical institutions/ Central Government Medical Institutions, in the State/Union Territory in which the institution is located. Similar procedure shall be followed in the matter of grant of leave of Post Graduate students.The above sub-clause 13.3 is substituted in terms of Gazette Notification published on 20.10.2008 and the same is as under:-Clause 13.3"The Post Graduate students undergoing Post Graduate Degree/Diploma/Super-Specialty course shall be paid stipend on par with the stipend being paid to the Post Graduate students of State Government Medical Institutions /Central Government Medical Institutions, in the State/Union Territory where the institution is located. Similarly, the matter of grant of leave to Post Graduate students shall be regulated as per the respective State Government rules.]24. The Ruling of the Hon'ble Apex Court in the case of Dr.Preethi Srivastava supra, would be beneficial for deciding the issue on hand. The relevant paras are quoted hereunder:"52. Mr. Salve, learned counsel appearing for the Medical Council of India has, therefore, rightly submitted that under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of post-graduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed Regulations which govern post-graduate medical education. These Regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List-III, make rules and regulations which are in conflict with or adversely impinge upon the Regulations framed by the Medical Council of India for post- graduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List-I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List-III is subject to Entry 66 of List-I.53. Secondly, it is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the Concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List-III will also be subject to any existing relevant provisions made in that connection by the Union Government subject, of course, to Article 254.54. In Ajay Kumar Singh & Others Vs. State of Bihar & Others [(1994) 4 SCC 401], this Court examined the powers of the Indian Medical Council under Section 20 of the Indian Medical Council Act, 1956 and held that the power of the Council to prescribe standards of post-graduate medical education under Section 20 are only for the guidance of the universities. Since Section 20 also refers to the power of the Council to advice universities in the matter of securing uniform standards for post-graduate medical education throughout India, the Court said that the entire power under Section 20 was purely advisory. Therefore, the power of the Indian Medical Council to prescribe the minimum standards of medical education at the post- graduate level was only advisory in nature and not of a binding character (page 415).55. We do not agree with this interpretation put on Section 20 of the Indian Medical Council Act, 1956. Section 20(1) (set out earlier) is in three parts. The first part provides that the Council may prescribe standards of post-graduate medical education for the guidance of universities. The second part of sub-section(1) says that the Council may advise universities in the matter of securing uniform standards for post-graduate medical education throughout. The last part of sub-section (1) enables the Central Government to constitute from amongst the members of the Council, a post-graduate medical education committee. The first part of sub-section(1) empowers the Council to prescribe standards of post-graduate medical education for the guidance of universities. Therefore, the universities have to be guided by the standards prescribed by the Medical Council and must shape their programmes accordingly. The scheme of the Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will be not be able to practice. Before granting such recognition, a power is given to the Medical Council under Section 16 to ask for information as to the courses of study and examinations. The universities are bound to furnish the information so required by the Council. The post-graduate medical committee is also under Section 17, entitled to appoint medical inspectors to inspect any medical institution, college, hospital or other institution where medical education is given or to attend any examination held by any university or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the Committee is unsatisfactory the Medical Council may withdraw recognition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19A enables the Council to prescribe minimum standards of medical education required for granting recognised medical qualifications other than post- graduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of post- graduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. We, therefore, disagree with and overrule the finding given in Ajay Kumar Singh & Ors. v. State of Bihar & Others, supra, to the effect that the standards of post-graduate medical education prescribed by the Medical Council of India are merely directory and the universities are not bound to comply with the standards so prescribed."25. In the light of the aforesaid judgment of the Hon'ble Apex Court, Regulation 13.3 has to be complied mandatorily by the private colleges. The argument of the learned counsel for the respondent No.1 college that Regulation 13.3 is not applicable to the facts of the case since the petitioners 1 to 3 are the non residents cannot be countenanced for the reason that such objection is raised at the fag end of their course. Admittedly, the petitioners have joined the post graduate courses under the 1st respondent college during the academic year 2017-18. At the first instance, in the statement of objections filed before this court, the respondent No.1 college has not taken this ground. Though it has been contended by the respondent No.1 college that issuance of notice is not necessary for the petitioners to comply with Regulation 13.2, such plea/contention cannot be of any significance in view of the conduct of the respondent No.1 college. On the other hand, the silence on the part of the respondent No.1 college and conducting the post graduation courses not in compliance of Regulation 13.2 would have serious repercussions. The respondent No.1 college had mainly contended that the vires of Regulation 13.3 being challenged, the respondent No.1 is not bound to pay the stipend to the petitioners. There being no stay of the Regulation 13.3 by the Hon'ble court, mere filing of the writ petition challenging the vires of the said Regulation would not absolve the college from payment of stipend to the post graduate students in compliance with Regulation 13.3. The shelter taken by the respondent No.1 college on the challenge made to the said provision would not be of any assistance unless there is an interim order of stay of the said regulation or staying the payment of stipend to the post graduate students or the said Regulation 13.3 is declared ultra vires the Constitution of India by the competent court. There being no such circumstances, this court is of the considered opinion that the petitioners are entitled to the stipend in terms of the Regulation 13.3.26. The second ground of the act of justification by the respondent No.1 college in denying the stipend to the petitioners is that they are having shortage of attendance. Even this aspect requires to be analysed in the backdrop of the challenge made by the petitioners to the action of the respondent No.1 college in demanding the clinical fee of Rs.1,50,000/- per year and the denial of stipend with an allegation that the respondent No.1 college has projected itself as it is complying with the Regulations, creating false documents regarding the payment of salary said to have been paid to the petitioners at the time of the inspection of MCI to come out of the rigour of the Regulations. If such grounds urged by the petitioners is to be considered, it goes to the root of the matter.27. At this juncture, particularly when this court has passed an order recording the statement made by the learned counsel for the respondent No.1 college that they are not insisting for the clinical fees from the petitioners and the studen
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ts having taken the examination pursuant to the interim directions passed by this court and their results being declared, it is obvious that the respondent No.1 college would have treated the petitioning students in a discriminatory manner as they have challenged the demand of fees and denial of payment of stipend. There is considerable force in the contentions of the petitioners that biometric equipments were not operating during the Covid-19 lock down period and the petitioners were working in other hospitals and similarly situated students were permitted to attend the examinations as per Annexures 'T' series. Accordingly, the objections raised by the respondent No.1 college as regards the shortage of attendance has to be negated. What could be ascertained in the back drop of the case is that the lis pending between the management and the petitioners has certainly resulted in giving step motherly treatment to the petitioners who acted as whistle blowers to expose the anomalies with respect to non compliance of Regulations by the respondent No.1 college.28. Hence, this court is of the considered opinion that the shortage of attendance and the non resident status of the petitioners being factual aspects, the same cannot be examined by conducting a rowing enquiry in the case at this stage as the students should not be made scapegoats in view of the dispute raised against the respondent No.1 college. Moreover, the stance of the MCI in this regard also plays a significant role.29. Learned counsel for the MCI has submitted that the respondent No.1 college is mandatorily required to comply with the Regulation 13.3, it cannot deviate from the payment of stipend to the petitioners by taking recourse to the Regulation 13.2 at this length of time. The said submission is placed on record. In the circumstances, the interest of the students requires to be safe guarded.CONCLUSION:30. Hence, this court is of the considered view that the interest of justice would be sub-served in directing the respondent No.1 college to pay the stipend to the petitioners 1 to 3 as per Regulation 13.3 deducting any fees liable to be paid by them other than the clinical fees demanded by the respondent No.1 college. If there is any dispute as far as the demand of fees/payment of fees, the parties are at liberty to approach the Admission Overseeing Committee constituted under the provisions of Karnataka Professional Educational Institutions (Regulations of Admission and Determination of Fee) Act, 2006.31. The respondent No.1 college is directed to make the payment to the petitioners 1 to 3 towards the stipend in terms of the Regulation 13.3 as mentioned aforesaid in an expedite manner, in any event, not later than eight weeks from the date of receipt of certified copy of the order.With the aforesaid observations and directions, writ petition stands disposed of in respect of petitioner Nos.1 to 3. Writ petition in respect of petitioner Nos.4 to 25 stands dismissed as withdrawn.It is made clear that in the peculiar facts and circumstances of the case the aforesaid order being passed, the same shall not be treated as a precedent.