Full Judgment Text
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PETITIONER:
STATE OF M.P. AND ANR.
Vs.
RESPONDENT:
KUMARI NIVEDITA JAIN AND ORS.
DATE OF JUDGMENT22/09/1981
BENCH:
SEN, AMARENDRA NATH (J)
BENCH:
SEN, AMARENDRA NATH (J)
CHANDRACHUD, Y.V. ((CJ)
VARADARAJAN, A. (J)
CITATION:
1981 AIR 2045 1982 SCR (1) 759
1981 SCC (4) 296 1981 SCALE (3)1512
CITATOR INFO :
RF 1984 SC 873 (5)
R 1988 SC1048 (14)
ACT:
Right of opportunity for admission to medical colleges-
Rules for Admission into the Medical, Dentistry and
Ayurvedic Colleges in Madhya Pradesh prescribing selection
purely on merit from amongst those who have qualified in the
written examination-Reservation as seats for scheduled
Castes and Scheduled Tribes to the extent of 15% for each
category subject to a provision in Rule 9 to the effect that
unfilled vacancies should go to candidates available on the
combined Merit List-State Government by an executive order
dated 9th September, 1980 completely relaxing the conditions
relating to the minimum qualification marks for selection to
medical colleges in favour of Scheduled Castes and Scheduled
Tribes-Whether the executive order offends Articles 14 and
15 of the Constitution and ordinance 54 of the University of
Jabalpur, Regulation 2 of the Medical Council of India read
with section 19 of the Indian Medical Council Act, 1956.
HEADNOTE:
In exercise of its executive power the State Government
of Madhya Pradesh made by its order dated 2nd April, 1980
the Rules for admission into the Medical, Dentistal and
Ayurvedic Colleges in Madhya Pradesh. By and under Rule 7
the State Government has reserved 15% of seats for each of
the categories of Scheduled Castes and Scheduled Tribes
candidates. Rule 20 lays down that selection of candidates
from amongst those who have qualified in the examination
shall be made strictly on merit as disclosed by total number
of marks obtained by candidates in the pre-medical
examination. Rule 20 further provides that minimum
qualifying marks for admission to Medical Colleges shall be
50% in the aggregate and 33% in each subject respectively;
but for Scheduled Castes and Scheduled Tribes candidates the
minimum qualifying marks shall be 40% in the aggregate and
30% in each subject. Note (ii) below Rule 20 empowers the
Government to grant in case of candidate belonging to the
categories of Scheduled Castes and Scheduled Tribes special
relaxation in the minimum qualifying marks to the extent
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considered necessary in the event of the required number of
candidates in these two categories not being available. Rule
9 contains a provision to the effect that in case seats
reserved for categories of Scheduled Castes and Scheduled
Tribes remain vacant, these seats will be filled up by
candidates available on the combined merit list. The total
number of seats in all the Medical Colleges being 720 in
number, 108 seats each for the Scheduled Castes and
Scheduled Tribes became reserved under Rule 7.
760
For admission to The Medical Colleges for the academic
year 1980-8., there were 9400 candidates in all of which 623
candidates were from Scheduled Castes and 145 candidates
were from schedule Tribe. On the result of the pre-medical
examination only 18 seats in the category of Schedule Casts
and 2 seats in the Schedule Tribe could be filled up because
the other candidates of these categories did not secure the
qualifying marks prescribed by Rule 20. The selection Board
in exercise of the power under note (i) to Rule 20 made a
relaxation of 5% in terms thereof and thereafter 7 more
candidates in the category of Schedule Casts and one more in
the category of Schedule Tribes got admitted leaving a
balance of 83 seats under Schedule Casts quota, and 105
seats under the Schedule Tribes quota to be filled as
provided for under Rule 9. But the State Government, by its
order dated 9th September 1980 removed the condition
relating to minimum qualifying marks in favour of the
candidates from amongst Schedule Castes and Schedule Tribes.
The respondent belonging to the general category who
obtained the minimum qualifying marks but could not secure
admission as other candidates for the general seats had
obtained marks higher than she had obtained in the
premedical examination for filling up the vacancies
available in the general category, would have been in a
position to secure admission to the Medical College but for
the complete relaxation granted by the impugned order
without complying with the provisions of Rule 9. She,
therefore, filed a writ petition in the High Court on the
grounds, inter alia, (1) that the order of the Government
contravenes Regulation II of the Medical Council of India
and would hit Section 19 of the Indian medical council Act
1956 exposing the Medical colleges to the risk of being
derecognised:(2) that the order of the Government will
have the effect of allowing less qualified and less
deserving candidates to fill up the seats and would,
therefore, destroy equality and violate Articles 14 and 15
of the Constitution ; and (3) the order was violative of
Ordinance 94 of the University of Jabal pur. The High Court
accepted the contentions of the writ petitioner and allowed
the petition. Hence the appeal by the State, after obtaining
special leave.
Allowing the appeals, the Court,
^
HELD: 1. The executive order dated 9th September, 1980
passed by the State cf Madhya Pradesh completely relaxing
the conditions relating to the minimum qualifying marks for
selection of students to Medical Colleges of the State in
respect of candidates belonging to Schedule Castes and
Scheduled Tribes is not violative of either Article 14,
15(1) or 15(2) or 15 (4). [785 G, 788 C]
2. The relaxation does not offend Article 14 of the
Constitution. There is no relaxation of the condition
regarding eligibility for and admission into Medical
Colleges. The relaxation is only in the rule regarding
selection of candidates belonging to Scheduled Castes and
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Scheduled Tribes who were otherwise qualified and eligible
to seek admission into Medical Colleges only in relation to
seats reserved for them. Further the validity of the
reservation of seats for candidates belonging to Schedule
Castes and Scheduled Tribes have not been challenged and
very properly in view of Article 15 (4) of the Constitution.
[786 E-G]
3. The relaxation cannot be said to be unreasonable and
does not violate Articles 15(1), (2) and (4) of the
Constitution. The State must do everything
761
possible for the upliftment of the Schedule Castes and
Scheduled Tribes and other backward communities and it is
entitled to make reservations for them in the matter of
admission to medical and other technical institutions. In
the absence of any law to the contrary, it must also been
open to the Government to impose such conditions as would
make the reservation effective and would benefit the
candidates belonging to these categories for whose benefit
and welfare the reservations have been made. In any
particular situation taking into consideration the realities
and circumstances prevailing in the State it will be open to
the State to vary and modify the condition; regarding,
selection for admission if such modification or variation
becomes necessary for achieving the purpose for which
reservation has been made and if there be no law to the
contrary. Note (ii) of rule 20 of the Rules for admission
framed by the State Government specifically empowers the
Government to grant such relaxation in the minimum
qualifying marks to the extent considered necessary. The
order can be supported under Article 15(4) of the
Constitution. [785 H, 786 A-D]
State of Kerala and Anr. v. N.M. Thomas, [1976] 1 SCR
906; Jagdish Saran and Ors. v. Union of India and ors.,
[1980] 2 SCR 831, followed.
Amalendu Kumar v. State of Bihar, AIR 1980 Patna 1
overruled.
4. Under Article 162 of the Constitution the executive
power of a State, extends to the matter with regard to which
the Legislature of a State has power to make laws. As there
is no legislation covering the field of selection of
candidates for admission to Medical Colleges, the State
Government would, undoubtedly, be competent to pass
executive orders in this regard. [785 D.E]
State of Andhra Pradesh and Ors. v. Lavu Narendranath
and Ors. etc. etc., [1971] 3 SCR 699, reiterated.
5:1. Regulation II of the Indian Medical Council is
merely directory and in the nature of a recommendation and,
therefore has no such statutory force as to render the
executive order dated 9th September, 1980 which contravenes
the said Regulation illegal, invalid and unconstitutional.
[785 B-Cl
Entry 66 in List I (Union List) of the Seventh Schedule
to the Constitution relates to "co-ordination and
determination of standard in institutions for higher
education or research and scientific and technical
institutions". This entry by itself does not have any
bearing on the question of selection of candidates to the
Medical Colleges from amongst candidates who are eligible
for such admission. On the other hand, entry 25 in List II
(Concurrent List) of the same Schedule speaks of "education,
including technical education, medical education in
Universities, subject to entries 63, 64, 65 and 66 of List
I.. vocational and technical training of labour". This entry
is wide enough to include within its ambit the question of
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selection of candidates to Medical Colleges and there is
nothing in the entries 63, 64 and 65 of List I to suggest to
the contrary. [784 G.H, 785 A-C]
5:2. Regulation I of the Medical Council prescribes the
requisites which have to be satisfied to enable every
student to become eligible or qualified to seek admission
and the process of selection comes thereafter. As this
Regulation is
762
within the competence of the Council the Council, has framed
this Regulation in a manner which leaves no doubt that this
Regulation is mandatory. [783 B-C]
5:3. Regulation II of the, Council is merely in the
nature of a recommendation. Regulation II begins with the
words "selection of students in medical college should be
based solely on merit". Language used in Regulation II is
deliberate and is intended to indicate the intention of the
Council that it is only in the nature of a recommendation.
By way of solution to the problem of dearth of seats, the
Council appears to have thought it fit to suggest the
procedure which will have the effect of selecting such
candidates on the basis of merit only. The procedure
suggested is intended to do away with nepotism and
favoritism and any unfair practice in the matter of such
admission, as the procedure recommends merit to be the
criterion. Regulation II recommending the process of
selection is outside the authority of the Council under
section 33 of the Act and the Council has advisedly and
deliberately used such language in Regulation II as makes
the position clear and places the matter beyond any doubt.
Further, apart from reservations of seats for Scheduled
Castes and Scheduled Tribes and other reservations,
reservation of seats is commonly made for being filled up by
nomination. In the instant case, it appears that seats not
exceeding three per cent are reserved for the nominees of
the Government of India apart from the other reservations.
These nominees of the Central Government do not have to sit
for any premedical examination to qualify themselves for
selection to the Medical Colleges, They must of course be
eligible for admission in the sense that they must have the
necessary qualification for admission in accordance with
Regulation I. The candidates eligible under Regulation I are
selected by virtue of nomination and there is no question of
any pre-medical test for such candidates nominated by the
Central Government. If Regulation II could be considered to
be mandatory, there could be no such nomination of
candidates by the Central Government. [783 G-H, 784A-C, E-G]
6:1. An analysis of the various sections of the Indian
Medical Council Act, 1956 indicates that the main purpose of
the Act is to establish Medical Council of India, to provide
for its constitution. composition and functions and the main
function of the Council is to maintain the medical register
of India and to maintain a proper standard of medical
education and medical ethics and professional conduct for
medical practitioners. The scheme of the Act appears to be
that the Medical Council of India is to be set up in the
manner provided in the Act and the Medical Council will
maintain a proper medical register, will prescribe minimum
standards of medical education required for granting
recognised medical qualifications, will also prescribe
standards of post-graduate medical education and will
further regulate the standard of professional conduct and
etiquette and code of ethics for medical practitioners. The
Act further envisages that if it appears to the Council that
the courses of study and examination to be undergone in, or
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the proficiency required from candidates at any examination
held by any University or Medical Institution do not conform
to the standard prescribed by the Council or that the staff,
equipment, accommodation training and other facilities for
instructions and training provided in such University or
medical institution or in any college or other institutions
affiliated to that University do not conform to the
standards prescribed by the Council, the Council will make a
representation to that effect to the Central Government and
763
on consideration of the representation made by the Council,
the Central Government may take action in terms of the
provisions contained in section 19 of the Act.
[776 G-H, 777 A-C]
The Act also empowers the Council to take various
measures to enable the Council to judge whether proper
medical standard is being maintained in any particular
institution or not. [777 C-D]
6:2. The authority of the Council extends to the sphere
of maintaining proper medical standard in Medical Colleges
or institutions necessary for obtaining recognized medical
qualifications. By virtue of this authority it may be open
to the Council to lay down the minimum educational
qualifications required of a student who may seek admission
into a Medical College. In other words, the eligibility of a
candidate who may seek to get admitted into a medical (’
college for obtaining recognized medical qualifications may
be prescribed by the Council. All the candidates who are
eligible for admission into Medical Colleges or institutions
for getting themselves qualified as medical practitioners
are entitled to seek admission into a Medical College or
institution. As to how the selection has to be made out of
the eligible candidates for admission into the Medical
College is a matter which has necessarily to depend on
circumstances and conditions prevailing in particular
States. Though the question of eligibility for admission
into the medical curriculum may come within the power and
jurisdiction of the Council, the question of selection of
candidates out of the candidates eligible to the medical
course does not appear to come within The purview of the
Council. [777 E-H, 778 A]
6:3. The process of selection of candidates for
admission to a Medical College out of the candidates
eligible for admission for filling up the limited vacancies
has no real bearing on the question of eligibility or
qualification for admission or on the standard of medical
education. The standard of medical education really comes
into the picture in the course of studies in the medical
colleges or institutions after the selection and admission
of candidates into Medical Colleges and institutions.
Students who satisfy the requirements of Regulation I become
qualified or eligible to seek admission into the Medical
Course. Regulation I prescribes the requisites which have to
be satisfied to enable every student to become eligible or
qualified to seek admission and the process of selection
comes thereafter. [778 C-E]
Undoubtedly, under section 33 of the Act, The Council
is empowered to make regulations with the previous sanction
of-the Central Government generally to carry out the
purposes of the Act and such regulations may also provide
for any of the matters mentioned in section 33 of the Act.
[778 E-F] G
State of Kerala v. Kumari T. P. Roshana and Ors [1979]
2 SCR 974: Arti Sapru v. State of Jammu and Kashmir and Ors
[1980] 3 SCR 34, explained and distinguished.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 554-555
of 1981.
764
From the judgment and order dated the 6th November,
1980 of the High Court of Madhya Pradesh at Jabalpur in
Misc. Petition No. 510 and 613 1980.
N.M. Phadke, A M. Mathur, Advocate Genl. M.P., S.K
Gambhir and Vijay Hansarra for the Appellants.
S.N. Kackar, Vineet Kumar, Gulab Gupta, Naresh K.
Sharma, S.Q. Hasan, P.N. Puri, E.M.S. Anam and M.K Dua for
the respondents.
B.R. Agarwala for the Medical Council.
S.K Mehta, P.N. Puri and M.K. Dua for the interveners.
The Judgment of the Court was delivered by
AMARENDRA NATH SEN, J. The validity of the executive
order dated 9th September, 1980 passed by the State
Government completely relaxing the conditions relating to
the minimum qualifying marks for selection of students to
Medical Colleges of the State in respect of candidates
belonging to Scheduled Castes and Scheduled Tribes
categories forms the subject matter of these appeals by
Special Leave.
The facts material for the purposes of these appeals
may be stated:
Kumari Nivedita Jain, one of the Respondents in the
present appeals, was a candidate for admission to a Medical
College in the State of Madhya Pradesh. In the State of
Madhya Pradesh there are six Medical Colleges affiliated to
different Universities in the State. The total number of
seats in all these Colleges is 720. By an order dated 2nd
April, 1980 the State Government made rules for admission to
Medical Colleges, the College of Dentistry Indore and
Government Ayurvedic Colleges of the State and the said
Rules are called "Rules for Admission into the Medical,
Dentistry and Ayurvedic Colleges in Madhya Pradesh"
(hereinafter referred to as the Rules). These Rules were
made in exercise of the executive power of the State and
these Rules are not statutory. By and under Rule 7 of the
Rules, the State Government has reserved 15% seats for each
of the categories of the Scheduled Castes and Scheduled
Tribes candidates. That means, out of 720 seats, 108 seats
are reserved for the Scheduled Castes candidates; and the
same number, that is, 108 seats are also reserved for the
candidates belonging to
765
the category of Scheduled Tribes. By and under the same
Rules, 15% seats are reserved for women candidates and seats
not exceeding 3% are reserved for the children of military
personnel. Under Rule 8, some further reservations have been
made and under this Rule, seats not exceeding 3% are
reserved for the nominees of the Government of India and 3
seats are reserved for the candidates nominated by the
Government of Jammu and Kashmir Rule 1 (iii) provides that a
Pre-Medical Examination shall be held every year for
selection of candidates for admission to the Medical
Colleges and all admissions shall be made only from the
merit list prepared on the basis of the result of this
examination except in case of seats placed at the disposal
of the Government of India and other States. Rule 15
mentions the subjects of the Pre-Medical Examination and C
rule 20 lays down that selection of candidates from amongst
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those who have qualified in the examination shall be made
strictly on merit as disclosed by total number of marks
obtained by candidates in the Pre-Medical Examination. Rule
20 further provides that minimum qualifying marks for
admission to Medical Colleges shall be 50% in the aggregate
and 33% in each subject separately: but for Scheduled Castes
and Scheduled Tribes candidates, the minimum qualifying
marks shall be 40% in the aggregate and 30% in each subject.
Rule 20 in its note (ii) empowers the Government to grant in
case of candidates belonging to the categories of Scheduled
Castes and Scheduled Tribes special relaxation in the
minimum qualifying marks to the extent considered necessary
in the event of the required number of candidates in these
two categories not being available. For the total number of
720 seats in the Medical Colleges of the State, there were
9400 candidates in all. Of the 9400 candidates, there were
623 candidates belonging to the category of Scheduled Castes
for whom 108 seats were reserved; and for the 108 seats
reserved for candidates of the Scheduled Tribes Category,
there were 145 candidates belonging to that category. On the
result of the Pre-Medical Examination only 18 seats in the
category of the Scheduled Castes and 2 seats in the category
of Scheduled Tribes could be filled up, because the other
candidates of these categories did not secure qualifying
marks prescribed by rule 20. As 90 seats had remained vacant
in the category reserved for Scheduled Castes after
selection of the 18 candidates and 106 seats remained
unfilled in the category of seats reserved for Scheduled
Tribes after selection of the two candidates on the result
of the examination, the Board in exercise of the power under
Note (i) to Rule 20 made a relaxation of 5% in terms thereof
and thereafter 7 more candidates in the category
766
gory of Scheduled Castes and one more in the category of
Scheduled Tribes got admitted. Thus oat of 108 seats
reserved for each category of the Scheduled Castes and
Scheduled Tribes, only 25 seats could be filled in the
category of Scheduled Castes and three in the category of
Scheduled Tribes. As only a very few candidates of these two
categories could get admitted into Medical Colleges and a
large number of seats reserved for them could not be filled
up by the candidates of these two categories on the basis of
the result of the examination even after relaxation had been
made in terms of the provisions contained in Note (i) to
Rule 20, the State Government passed an order on the 9th
September, 1980 completely relaxing the conditions relating
to the minimum qualifying marks for these two categories.
the order dated 9th September, 1980, the validity of which
has been questioned in the Writ Petitions filed by Nivedita
Jain in the High Court, is to the following effect:-
"The Government has taken a decision that the
candidates belonging to the Scheduled Castes and
Scheduled Tribes be admitted to the Medical Colleges in
the seats reserved for them in accordance with the
merit to be deter mined on the basis of the marks
obtained by them in the Pre-Medical Examination and
that for this purpose, the condition relating to the
obtaining of minimum qualifying marks be removed".
Kumari Nivedita Jain, as we have earlier noticed, was a
candidate for admission into a Medical College in the
general seats, that is, the seats which have not been
otherwise reserved. Though she had obtained necessary
qualifying marks, she could not secure her admission, as
other candidates for the general seats had obtained marks
higher than she had obtained in the Pre-Medical Examination,
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for filling up the vacancies available in the general
category. It may be noted that rule 9 contains a provision
to the effect that in case seats of reserved categories of
Scheduled Castes and Scheduled Tribes remain vacant, these
seats will be filled up by the candidates available on the
combined merit list. If the seats in the reserved categories
had been thrown open to candidates in the general category
on account of the failure on the part of the candidates
belonging to the categories of Scheduled Castes and
Scheduled Tribes to obtain minimum qualifying marks,
Nivedita Jain would have been in a position to secure her
admission to the medical college. As the State Government by
its order dated 9th September, 1980 decided to relax
completely the conditions relating
767
to minimum qualifying marks for these two categories of
Scheduled Castes and Scheduled Tribes candidates instead of
filling up these seats by candidates available on the
combined merit list, she was deprived of the opportunity of
getting her ad mission into the medical college. She,
therefore, filed this writ petition in the High Court of
Madhya Pradesh challenging the validity of the said order of
the State Government dated 9th September, 1980. It will be
noticed that this order of the State Government is also an
executive order.
The principal grounds on which the validity of the
order has been challenged by Nivedita Jain, the respondent
herein and the petitioner in the writ petition before the
High Court, are-(1) that the order of the Government
contravenes Regulation II of the Medical Council of India
and would hit S. 19 of the Indian Medical Council Act, 1956,
exposing the medical colleges to the risk of being
derecognised; and (2) that the order of the Government will
have the effect of allowing less qualified and less
deserving candidates to fill up the seats and would,
therefore, destroy equality and violate Arts. 14 and 15 of
the Constitution.
It appears from the judgment of the High Court that
another ground, namely, that the order dated 9th September,
1980 was violative of ordinance 94 of the University of
Jabalpur, was also urged before the High Court, though this
ground does not appear to have been taken in the petition.
The High Court accepted the contention of the writ
petitioner that the order in question violated Regulations
of the Council holding that "the executive power of the
State under Art. 162 cannot be so exercised as to over-ride
the statutory provisions, more so when the said provision is
in a field occupied by the Union List. The executive power
can be used to supplement a law but not to supplant it" The
High Court further held that "the total relaxation of
minimum marks for the candidates belonging to these
categories cannot be supported under Art. ] S(4) being
violative of the Regulations which have the force of law."
Dealing with the contentions of violation of ordinance 54 of
the University of Jabalpur, the High Court observed:
"As the ordinance has to be read alongwith the
regulations and can be given effect to only in so far
it is consistent with the regulations, it cannot
constitute anew
768
ground for invalidating the impugned order, We would,
however, like to emphasis again that when a common
entrance test for selection of candidates is held by
the Government for all the medical colleges, it is very
necessary that the Universities must prescribe
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identical conditions for admission consistent with the
Regulations made by the Medical Council to avoid any
confusion in the matter of admission."
In the result, the High Court allowed the writ petition
and struck down the order of the State Government dated 9th
September, 1980.
In this appeal by special leave, the State of Madhya
Pradesh and the Controller of Examinations of pre-medical
test have challenged the correctness of the decision of the
High Court.
Before we proceed to consider the various arguments
advanced on behalf of the parties, we may here note that in
the writ petition filed by Nivedita Jain, she also
challenged the validity of the reservation made by the State
Government of 3% of the seats for the children and grand
children of freedom-fighters by another order passed by the
State Government on the 19th September, 1980. The validity
of this order was, however, upheld by the High Court. The
matter rests there and in this appeal we are not concerned
with this aspect of the matter.
Mr. Phadke, learned counsel appearing on behalf of the
appellants, has submitted that the High Court struck down
the order in question mainly on the ground that the order is
violative of the Regulation II of the Council. He has argued
that the validity of the reservations for the members of the
Scheduled Castes and Scheduled Tribes has not been
questioned. It is his argument that the seats are reserved
for those communities in the interest of weaker sections of
the society and the State under Art. 15(4) of the
Constitution is competent to do everything possible for the
upliftment of the Scheduled Castes and Scheduled Tribes and
other backward communities and the State is entitled to make
necessary reservations of seats in the matter of their
admission to medical colleges. He submits that it must be
open to the State to lay down such conditions as will make
such reservations effective and will enable the candidates
belonging to the categories of Scheduled Castes and
Scheduled Tribes to get the benefits of such reservations,
769
in discharge of the duties and obligation of the State, to
the members of those communities and other backward
communities. It is his submission that in the instant case
when the State found that the qualifying conditions laid
down for the admission of the candidates belonging to those
communities had in reality resulted in denial of the
opportunities sought to be given to them, the Government
considered it expedient to relax the conditions to enable
the candidates of those communities to get the admission to
medical colleges for prosecuting their studies to become
qualified medical practitioners. Mr. Phadke has contended
that the provisions contained in Regulation II for violation
of which the order in question has been struck down, are
directory in nature and they are not mandatory in character,
and, as such, they do not have any binding effect; and it is
open to the State to make Rules which may not be in accord
with the provisions contained in the said regulation for
admission to the medical colleges. Mr. Phadke has taken us
to the various provisions of the Indian Medical Council Act
(hereinafter referred to as the Act) and also to the
Regulations framed by the Council. Mr. Phadke submits that
the scheme of the Act clearly suggests that the Council is
essentially concerned with the standard of medical education
in the country and that stage only arrives after the
students have been admitted into Medical Colleges. Mr.
Phadke has drawn our attention particularly to Sections 19
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and 19A of the Act and he has commented that under S. 33 of
the Act, the Council with the previous sanction of the
Central Government can frame Regulations for carrying out
the purpose of the Act. He has submitted that the selection
of candidates for admission to Medical Colleges cannot be
said to constitute any purpose for which the Act has been
enacted, as selection of students has no bearing on the
standard of medical education and the Council is not
competent to frame Regulations for admission to Medical
Colleges. Mr. Phadke in this connection has referred to the
decision of this Court in the case of Arti Sapru v. State of
Jammu and Kashmir and Ors.(1) and has relied on the
following observations of the Court at p. 44:
"Objection to the objective test and the viva voce
examination is based on the ground that they fall
outside . the scheme envisaged by the Regulations made
by the Indian Medical Council for admission to the
M.B.B.S, Course. The respondents, however, question the
validity H
770
of the Regulations. We are then referred by the
petitioner to clauses (i) and (I) of S. 33, Indian
Medical Council Act, 1956, in support of the contention
that the power of the Council to make regulations
extends to making regulations prescribing the
examinations and tests for admission. It seems to us
prima facie that those provisions do not authorise the
Council to do so. But we refrain from expressing any
final opinion in the matter as the Council is not a
party before us.
Mr. Phadke has argued that item 66 in List I of the Seventh
Schedule to the Constitution does not stand in the way of
the State Government to frame rules for admission to Medical
Colleges in view of item 25 included in List III of the said
Schedule. It is the argument of Mr. Phadke that item 66 in
List I which provides for "co-ordination and determination
of standards in institutions for higher education or
research and scientific and technical institutions", is not
intended to deal with the question of selection of
candidates and item 25 in List III which provides for
"education including technical education, medical education
in universities subject to provisions of entries 63, 64, 65
and 66 of List I; vocational and technical training of
labour", is broad enough to include all matters relating to
education subject to the provisions of entries 63, 64, 65
and 66 of List I and empowers the State to frame rules
relating to selection of candidates for admission. Mr.
Phadke has submitted that the Council must have been aware
of the limitations of its power in the matter of selection
of candidates for admission; and, the Council has,
therefore, made only a recommendation in this regard and has
not made any mandatory provision about it. In this
connection Mr. Phadke has referred to the language used in
Regulation II and has contrasted the same with the language
used in Regulation I of the Regulations. Mr. Phadke submits
that as Regulation II is only in the nature of a
recommendation and directory, any rules framed by the State
Government regarding selection of candidates in
contravention of the said recommendation cannot be held to
be invalid and illegal and cannot be struck down on that
ground. Mr. Phadke has also argued that there is no question
of violation of Art. 15(1) and (2) of the Constitution. It
is his argument that in view of the provisions in Art. 15(4)
of Constitution, the State Government is competent to make
special provisions for the advancement of socially and
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educationally backward classes or for the Scheduled Castes
and Scheduled Tribes. Mr. Phadke in this connection has
771
referred to the case of Jagdish Saran and Ors. v. Union of
India and Ors.(1). Mr. Phadke has commented that the view
expressed by the High Court that the order which violates
the statutory regulation of the Council must be held to be
violative of Art. 15(1) and (2) and not protected by Art.
15(4) must necessarily be held to be erroneous, as
Regulation II is not mandatory and has no binding effect.
Regarding violation of ordinance 54 of Jabalpur
University, Mr. Phadke submits that no such ground has been
taken in the - l petition and further the affidavit filed on
behalf of the university shows that the ordinance has not
become effective.
Mr. Kacker, Learned Counsel appearing on behalf of the
Respondent Nivedita Jain, the petitioner in the writ
petition, his argued that Regulation II of the Medical
Council is mandatory with statutory force. He has submitted
that the Indian Medical Council bas been established by the
Parliament, inter alia, for the maintenance of Medical
Register for India and the matters relating therewith. He
further submits that under s. 33 of the Act the Council with
the previous sanction of the Central Government has been
authorised to make regulations generally to carry out the
purposes of the Act, and without prejudice to the generality
of this power, the regulation made by the council may
provide for matters specifically mentioned in the said
section including any matter for which under the Act
provision may be made by regulations, as provided in sub-
section (u) of Section 33. It is the argument of Mr. Kacker
that Regulation II of the Council which relates to selection
of candidates has been made for carrying out the purposes of
the Act and selection of the right type of students for
maintaining proper standard of medical education comes
clearly within the purview and jurisdiction of the Council.
Mr. Kacker has placed us various sections of the Act in
support of his submission that regulating selection of
students for admission to medical colleges justly comes
within the jurisdiction and function of the Council. In this
connection, Mr. Kacker has also referred to the decision of
this Court in the case of State of Kerala v. Kumari T.P.
Roshana and Anr. (1) and he has relied on the following
observations at p. 984:-
"The Indian Medical Council Act, 1956 has
constituted the Medical Council of India as an expert
body to control
772
the minimum standards of medical education and to
regulate their observance. Obviously, this high-powered
Council has power to prescribe the minimum standards of
medical education. It has implicit power to supervise
the qualifications or eligibility standards for
admission into medical institutions. Thus there is an
overall invigilation by the Medical Council to prevent
sub-standard entrance qualifications for medical
courses".
Mr. Kacker submits that in the instant case there is no
dispute that the order of the Government dated 9th September
1980 in question clearly contravenes Regulation II of the
Council. Mr. Kacker has also drawn our attention to entry 66
of the Union List which has been set out earlier Mr. Kacker
has contended that the State Government by an executive
order cannot over-ride Regulation II of the Council which
has statutory force of a Parliamentary Legislation,
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particularly, when the said provisions are in a field
occupied by the Union List. Mr. Kacker has next contended
that complete relaxation of the conditions in relation to
qualifying marks for admission into Medical Colleges in case
of Scheduled Castes and Scheduled Tribes candidates
purported to have been made by the State Government by the
impugned order dated 9th September, 1980 must also be held
to be unconstitutional as the said order is clearly
violative of Art. 15 (1) and (2) of the Constitution and
cannot be said to be protected by Art. 15 (4). In support of
this submission Mr. Kacker has relied on the decision of the
Full Bench of the Patna High Court in the case of Amalendu
Kumar v. State of Bihar. (1) In this case the Patna High
Court held that where the State Government reduces the
percentage of marks, marks prescribed for the Scheduled
Castes and Scheduled Tribes for passing competitive
examination held for the purpose of admission to medical
college, by executive fiat, first from 45% to 40% and
subsequenty to 35% on the ground that seats reserved for the
Scheduled Castes and Tribes would remain unfilled, both
reductions were invalid as violative of guarantee given
under Art. 15 (1).
Mr. Kacker has finally submitted that the order in
question is also liable to be struck down as the order is
violative of ordinance 54 of University of Jabalpur.
773
In concluding Mr. Kacker has appealed to this Court
that irrespective of the result of this appeal, the
respondent Nivedita Jain who has already been admitted into
a College on the basis of interim order passed by this Court
in this appeal for prosecuting her studies in the Medical
College, should be allowed to continue her studies and the
fate of this appeal should not interfere with her studies
and with her career.
As we have earlier noticed, the order in question has
been struck down by the High Court essentially on the ground
that the order which is an executive order violates
Regulation II of the Council which has the force of a
Statute. It is not in dispute and it cannot be disputed that
the order m question is in conflict with the provisions
contained in Regulation II of the Council. The main question
that falls for determination is whether the order in
question which contravenes Regulation II is liable to be
struck down on the ground that the State Government by an
executive order is purporting to override Regulation II of
the Council. For a proper determination of the question it
is necessary to understand the true nature of the said
Regulation II and to consider whether the said Regulation is
of mandatory character with statutory force. The contention
of the appellants, as we have earlier noticed, is that
Regulation II is only in the nature of a recommendation and
is directory and has no statutory force; and the contention
of the Respondent Nivedita Jain, on the other hand, has been
that the said Regulation is mandatory in character with
statutory force. For a proper appreciation of these rival
contentions, it becomes necessary to analyze and understand
the scheme of the Act and the Regulations framed thereunder.
The Act was enacted "to provide for reconstitution of the
Medical Council of India and the maintenance of Medical
Register for India and for matters connected therewith". S.
2 deals with definitions and defines "Regulation" in sub-
sec. (i) to mean "a Regulation under s. 33". Ss. 3 to 10 of
the Act are not of any material consequence and these
sections deal with composition of the Council and its
functions. S. 11, 12, 13 and 14 which deal with the question
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of recognition of medical qualifications by the Council are
also not very relevant for our present purpose. S. 15 which
deals with question of a person possessing qualifications
for enrollment on any State Medical Register, is also not
very material. S. 16 provides that every University or
Medical Institution in India which grants a recognised
medical qualification shall furnish such information as the
Council may from time to
774
time require, as to the courses of study and examination to
be undergone in order to obtain such qualification, as to
the ages at which courses of study and examination are
required to be undergone and such qualification is conferred
and generally as to the requisites for obtaining such
qualifications granted by the University or Medical
Institution. S. 17 confers a right of inspection of Medical
Institution, College, Hospital or other institutions where
medical education is given and also to attend any
examination held by any University or Medical Institution
for the purpose of recommending to the Central Government
recognition of medical qualifications granted by that
University or medical institution. S. 18 confers a further
right of appointing visitors for inspection of any medical
institution, College, Hospital or other institutions where
medical education is given and for attending any examination
held by any University or Medical Institution for the
purpose of granting recognised medical qualifications. S. 19
empowers the committee to make a representation to the
Central Government for withdrawal of the recognition, if it
appears to the Council on a report by the Committee or the
Visitor that the Courses of study and examination to be
undergone in, or the proficiency required from candidates at
any examination held by any University or medical
institution do not conform to the standards prescribed by
the Council or that the staff, equipment, accommodation,
training and other facilities for instructions and training
provided in such University or Medical Institution or in any
College or other institution affiliated to that University
do not conform to the standards prescribed by the Council.
The said Section 19 further provides that in the event of
any representation being made to the Central Government by
the Council, the Central Government will forward the same to
the Government of the State in which the University or
medical institution is situated and the State Government
shall forward it along with such remarks as it may make to
the University or Medical Institution, with an intimation of
the period within which, the University or medical
institution may submit its explanation to the State
Government; and on receipt of the explanation, if any within
the stipulated period the State Government on the expiry of
the period shall make its recommendations to the Central
Government and the Central Government after making such
further enquiries, if any, as it may think fit, proceed to
act in the manner laid down in sub-sec. (4) of S. 19 of the
Act. S. 19A of the Act which is important for our purposes
in this appeal reads as follows :
775
"(1) The Council may prescribe the minimum standards A
of medical education required for granting
recognised medical qualifications (other than
post-graduate medical qualifications) by
Universities or medical institutions in India.
(2) Copies of the draft regulations and of all
subsequent amendments thereof shall be furnished
by the Council to all State Governments and the
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Council shall, before submitting the regulations
or any amendment thereof, as the case may be, to
the Central Government for sanction, take into
consideration the comments of any State Government
received within three months from the furnishing
of the copies as aforesaid.
(3) The Committee shall from time to time report to
the Council on the efficacy of the regulations and
may recommend to the Council such amendments
thereof as n it may think fit".
S. 20 deals with post-graduate medical studies and S. 20A
deals with professional conduct. Ss. 21 to 28 make provision
for the maintenance of Indian Medical Register, supply of
copies of the State Medical Registers to the Council by the
State Medical Council, registration in the Indian Medical
Council Register, removal of any name from the Indian
Medical Register, provisional registration, registration of
additional qualifications, privileges of persons who are
enrolled on the Indian Medical Register and the requirement
of notification of change of address by every person
registered in Indian Medical Register. S. 29 casts an
obligation on the Council to furnish reports, copies of
minutes, abstracts of its accounts and other information
that the Central Government will require, to the Central
Government. S. 30 empowers the Central Government to
institute a commission of enquiry whenever it is made to
appear to the Central Government that the Council is not
complying with any provisions of the Act. S. 31 is intended
to offer protection in respect of acts done in good faith
under the Act, These sections do not have any material
bearing on the question involved in the present proceeding.
S. 32 authorizes the Central Government to make rules to
carry out the purposes of this Act, and sub-section (2) of
S. 32 makes it obligatory that such rules shall be laid
before the Parliament. S. 33 of the Act provides:
776
"The Council may, with the previous sanction of
the Central Government, make regulations generally to
carry out the purposes of this Act, and without
prejudice to the generality of this power, such
regulations may provide for:
(a) ... ... ... ...
... ... ... ...
... ... ... ...
(j) the courses and period of study and of practical
training to be undertaken, the subjects of
examination and the standards of proficiency
therein to be obtained in Universities or medical
institutions for grant of recognised medical
qualifications;
(k) the standards of staff, equipment, accommodation,
training and other facilities for medical
education;
(I) the conduct of professional examinations,
qualifications of examiners, and the conditions of
admission to such examinations;
(m) the standard of professional conduct and etiquette
and code of ethics to be observed by medical
practitioners; and
(n) any matter for which under this Act provision may
be made by regulations.
S. 34 of the Act which happens to be the last section
repeals the earlier Indian Medical Council Act of 1933,
providing for the usual saving clause.
An analysis of the various sections of the Act indicate
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that the main purpose of the Act is to establish Medical
Council of India, to provide for its constitution,
composition and its functions; and the main function of the
Council is to maintain the medical register of India and to
maintain a proper standard of medical education and medical
ethics and professional conduct for medical practitioners.
The scheme of the Act appears to be that the Medical Council
of India is to be set up in the manner provided
777
in the Act and the Medical Council will maintain a proper
medical register, will prescribe minimum standards of
medical education required for granting recognised medical
qualifications, will also prescribe standards of post-
graduate medical education and will further regulate the
standards of professional conduct and etiquette and code of
ethics for medical practitioners. The Act further envisages
that if it appears to the Council that the courses of study
and examination to be undergone in, or the proficiency
required from candidates at any examination held by any
University or Medical Institution do not conform to the
standard prescribed the Council or that the staff,
equipment, accommodation, training and other facilities for
instructions and training provided in such University or
medical institution or in any college or other institution
affiliates to the University do not conform to the standards
prescribed by the Council, the Council will make a
representation to that effect to the Central Government and
on consideration of the reorientation made by the Council,
the Central Government may take action in terms of the
provisions contained in S. 19 of the Act. The Act also
empowers the Council to take various measures to enable the
Council to judge whether proper medical standard is being
maintained in any particular institution or not.
Now coming to the consideration of the question
involved in this appeal, it appears from the provisions of
the Act that the . authority of the Council extends to the
sphere of maintaining proper medical standards in medical
colleges or institutions necessary for obtaining recognised
medical qualifications. By virtue of this authority it may
be open to the Council to lay down the minimum educational
qualifications required of a student who may seek admission
into a medical college. In other words, the eligibility of a
candidate who may seek to get admitted into a medical
college for obtaining recognised medical qualifications may
be prescribed by the Council. All the candidates who are
eligible for admission into Medical Colleges or Institution
for getting themselves qualified as medical practitioners
are entitled to seek admission into a Medical College or
Institution. As to how the selection has to be made out of
the eligible candidates for admission into the Medical
College is a matter which has necessarily to depend on
circumstances and conditions prevailing in particular
States. Though the question of eligibility for admission
into the medical curriculum may come within the power and
jurisdiction of the Council, the question of selection of
candidates out of the candidates eligible to undergo
778
the medical course does not appear to come within the
purview of the Council. The observations of the Supreme
Court in the case of State of Kerala v. Kumari T.P. Roshana
and Ors. (supra) quoted earlier relate to the question of
qualification or eligibility of students for admission into
a medical college and the said observations are not intended
to apply to a case of selection of students for admission
into a Medical College out of the eligible candidates. As
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the number of candidates seeking admission to Medical
Colleges largely exceed the number of vacancies available to
such candidates for admission, some kind of procedure has to
be evolved for such selection. The process of selection of
candidates for admission to a medical college out of the
candidates eligible for admission for filling up the limited
vacancies has no real bearing on the question of eligibility
or qualification for admission or on the standard of medical
education. The standard of medical education really comes
into the picture in the course of studies in the medical
colleges or institutions after the selection and admission
of candidates into medical colleges and institutions.
Students who satisfy the requirements of Regulation I become
qualified or eligible to seek admission into the Medical
Course. Regulation I prescribes requisites which have to be
satisfied to enable every student to become eligible or
qualified to seek admission and the process of selection
comes thereafter.
Undoubtedly, under S. 33 of the Act, the Council is em
powered to make regulations with the previous sanction of
the Central Government generally to carry out the purposes
of the Act and such regulations may also provide for any of
the matters mentioned in S. 33 of the Act. We have earlier
indicated what are the purposes of this Act. Sub-ss. (j),
(k), (l) and (m) of the Act which we have earlier set out
clearly indicate that they have no application to the
process of selection of a student out of the eligible
candidates for admission into the medical course. Sub-s. (j
), (k), and (I) relate to post admission stages and the
period of study after admission in medical colleges. Sub-s
(m) of S. 33 relates to a post-degree stage Sub-s. (n) of S.
33 which has also been quoted earlier is also of no
assistance as the Act is not concerned with the question of
selection of students out of the eligible candidates for
admission into medical colleges. It appears to us that the
observations of this Court in the case of Arti Sapru v.
State of Jammu and Kashmir and Ors. (supra) which we have
earlier quoted and which were relied on by Mr. Phadke, were
made on such consideration, though the question was not very
properly finally decided in the absence of the Council.
779
We shall now consider the two relevant Regulations of
the A Council and they are Regulations I and II. The said
Regulations read:-
I. Admission to the Medical Course
No candidate shall be allowed to be admitted to
the Medical Curriculum proper until:
(i) he has completed the age of 17 years at the
time of admission or will complete the age on
or before 31st December of the year of his
admission to the Ist M.B.B.S. Courses.
Provided that the candidates who are admitted
directly to the 5-1/2 years integrated
M.B.B.S. course should have completed the age
of 16 years at the time of admission or will
complete this age on 31st December of the
year of admission to the pre-medical course.
(ii) he has passed:
(a) the Intermediate examination in Science
of an Indian University/Board or other
recognised examining body with Physics,
Chemistry and Biology, which shall
include a practical test in these
subjects;
OR
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(b) the pre-professional/pre-medical
examination with physics, chemistry and
biology, after passing either the higher
secondary school examination, or the
pre-university or an equivalent
examination. The pre-professional pre-
medical examination shall include a
practical test in these subjects:
OR
(c) the first year of the three years degree
course of a recognised university, with
physics, chemistry and biology,
including a practical test in
780
these subjects provided the examination
is "University Examination.’.
OR
(d) "B. Sc. examination of an Indian
University. Provided that he has passed
the B. Sc examination with not less than
two of the following subjects-Physics,
Chemistry, Biology (Botany, Zoology; and
further that he has passed the earlier
qualifying examination with the
following subjects, Physics, Chemistry,
Biology and English.
Note : A student who has passed the B. Sc..
examination with one or more of the
subjects mentioned earlier would be
admitted to the Medical Course if he had
passed the remaining subjects of the
Medical group (Physics, Chemistry and
Biology) in the pre-professional
intermediate examination.
(e) The Higher Secondary Examination or the
Indian School Certificate Examination
which is equivalent to 10+2 Higher
Secondary Examination after a period of
12 years study, the last two years of
study comprising of Physics. Chemistry,
Biology and mathematics or any other
elective subject with English at a level
not less than the Core Course for
English as prescribed by the National
Council for Education Research and
Training, after the introduction of
10+2+3 years educational structure as
recommended by the National Committee on
Education.
Note : Where the course content is not as
prescribed for 10+2 education structure
of the National Committee, the
candidates will have to undergo a period
of one year pre-professional training
before admission to the medical college
781
(f) any other examination which, in scope and
standard is found to be equivalent to the
intermediate science examination of an Indian
University-Board, taking physics, chemistry
and biology, including a practical test in
each - of these subjects and English.
Note: (a) The pre-medical course may be conducted
either at Medical College or a Science
College.
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(b) After the 10+2 course is introduced, the
integrated course should be abolished.
II. Selection of Students.
The selection of students to a medical college
should be based solely on merit of the candidate and
for determination of merit, the following criteria be
adopted uniformly throughout the country:-
(a) In States, having only one Medical College and one
University/Board/Examining body conducting the
qualifying examination, the marks obtained at such
qualifying examination be taken into
consideration.
(b) In States having more than one University/Board/
Examining Body conducting the qualifying
examination (or where there are more than one
medical college under the administrative control
of one authority), a competitive entrance
examination should be held so as to achieve a
uniform evaluation due to the variation of the
standard of qualifying examinations conducted by
different agencies.
(c) Where there are more than one university/board
con- ducting the qualifying examination then a
joint selection board be constituted for all the
colleges.
782
(d) A competitive entrance examination is absolutely
necessary in the case of institutions of All India
character.
(e) To be eligible for competitive entrance
examination, candidate must have passed any of the
qualifying examinations as enumerated under the
head-note "Admission to Medical Course."
Provided that a candidate who has appeared in a
qualifying examination the result of which has not been
a declared, may be provisionally allowed to take up the
competitive examination and in case of his selection
for admission to a medical college, he shall not be
admitted thereto unless in the meanwhile he has passed
the qualifying examination.
Provided also that a candidate for admission to
the medical course must have obtained not less than 50%
of the total marks in English and Science subjects
taken together (i) at the qualifying examination (or at
a higher examination) in the case of medical college
where the admissions are made on the basis of marks
obtained at these examinations or (ii) 50% of the total
marks in English and Science subjects taken together at
the competitive entrance examination where such
examinations are held for selection.
Provided further that in respect of candidates
belonging to Scheduled Castes/Scheduled Tribes the
minimum marks required for admission shall be 40% in
lieu of 50% for general candidates.
Where the seats reserved for Scheduled Castes and
Scheduled Tribes students in any State cannot be filled
for (1 want of requisite number of candidates
fulfilling the mini mum requirements prescribed from
that State then such vacant seats may be filled up on
all India basis with Scheduled Castes and Scheduled
Tribes candidates getting not less than the minimum
prescribed pass percentage or reverted to general
category.
783
The authorities (State Government and
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Universities) A should arrange special coaching classes
for Scheduled Castes/Seheduled Tribes candidates before
the qualifying/ competitive examination to enable them
to come up to the appropriate standard for admission to
the Medical Courses.
Regulation I prescribes the eligibility of a candidate for
admission to medical courses. For maintaining proper
standards in medical colleges and institutions it comes
within the competence of the Council to prescribe the
necessary qualification of the candidates who make seek
admission into the Medical Colleges. As this Regulation is
within the competence of the Council, the Council has framed
this Regulation in a manner which leaves no doubt that this
Regulation is mandatory. The language of this Regulation,
which starts with the words "no candidate shall be allowed
to be admitted to the medical curriculum until.. ", makes
this position absolutely clear. On the other hand the
language in Regulation II which relates to selection of
candidates clearly goes to indicate that the Council itself
appears to have been aware of the limitation on its powers
to frame any such regulation regarding the procedure or
process of selection of candidates for admission to the
Medical Course out of the candidates qualified or eligible
to seek such admission. As, however, the question of
selection of candidates for admission into medical colleges
out of the eligible candidates is a h problem more or less
common to all the States, the Council might have considered
it desirable to recommend certain guidelines which may be
followed in the matter of selection of students out of the
eligible candidates for admission into medical colleges. It
is well known that all over India candidates who aspire to
get admission into medical colleges and who are otherwise
eligible or qualified for admission to medical courses on
the basis of the provisions contained in Regulation I of the
Council, cannot all be admitted into the medical college or
institution for dearth of seats. By way of solution of this
problem, the Council appears to have thought it fit to
suggest the procedure which will have the effect of
selecting such candidates on the basis of merit only. The
procedure suggested is intended to do away with nepotism and
favouritism and any unfair practice in the matter of such
admission, as the procedure recommends merit to be the
criterion. The Council itself appears to have apprehended
that what is contained in Regulation II is merely in the
nature of a recommendation and this is evident from the
language used in Regulation II particularly when the same is
con-
784
trasted with the language used by the Council in Regulation
I. Regulation II begins with the words "seiection of
students in a medical college should be based solely on
merit". We are of the opinion that the use of the words
"should be" in Regulation II is deliberate and is intended
to indicate the intention of the Council that it is only in
the nature of a recommendation. Regulation I which lays down
the conditions or qualifications for admission into Medical
Course comes within the competence of the Council under S.
33 of the Act and is mandatory and the Council has used
language to manifest the mandatory character clearly,
whereas Regulation II which deals with the process or
procedure for selection from amongst eligible candidates for
admission is merely in the nature of a recommendation and
directly in nature, as laying down the process or procedure
for selection for admission of candidates out of the
candidates eligible or qualified for such admission under
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Regulation I. Regulation II recommending the process of
selection is outside the authority of the Council under S.
33 of the Act and the Council has advisedly and deliberately
used such language in Regulation II as makes the position
clear and places the matter beyond any doubt. ’There is
another aspect of the matter which also goes to suggest that
Regulation II is merely directory and does not have any
mandatory force. Apart from reservations of seats for
Scheduled Castes Scheduled Tribes categories and other
reservations, reservation of seats is commonly made for
being filled up by nomination. In the instant case before
us, it appears that the seats not exceeding three per cent
are reserved for the nominees of the Government of India
apart from the other reservations. These nominees of the
Central Government do not have to sit for any pre-medical
examination to qualify themselves for selection to the
medical colleges. They must of course be eligible for
admission in the sense that h ey must have the necessary
qualification for admission in accordance with Regulation I.
The candidates eligible under Regulation I are selected by
virtue of nomination and there is no question of any pre-
medical test for such candidates nominated by the Central
Government. If Regulation II could be considered to be
mandatory, there could be no such nomination of candidates
by the Central Government.
Entry 66 in List I (Union List) of the 7th Schedule to
the Constitution relates to "co-ordination and determination
of standard in institutions for higher education or research
and scientific and technical institutions". This entry by
itself does not have any bearing on the question of
selection of candidates to the Medical
785
Colleges from amongst candidates who are eligible for such A
admission. On the other hand, entry 25 in List II
(Concurrent List) of the same Schedule speaks of-"education,
including technical education, medical education in
Universities, subject to entries 63, 64, 65 and 66 of List l
.. vocational and technical training of labour". This entry
is wide enough to include within its ambit the question of
selection of candidates to medical colleges and there is
nothing in the entries 63, 64 and 65 of List I to suggest to
the contrary. We are, therefore, of the opinion that
Regulation 11 of the Council which is merely directory and
in the nature of a recommendation has no such statutory
force as to render the order in question which contravenes
the said regulation illegal, invalid and unconstitutional. C
In the case of Slate Andhra Pradesh and Ors. v. Lavu
Narendranath and Ors., etc.(l) this Court held at page 709-
"the executive have. a power to make any regulation which
should have the effect of a law so long as it does not
contravene any legislation already covering the field .. ".
Under Art. 162 of the Constitution the executive power
of a State, therefore, extends to the matter with regard to
which the legislature of a State has power to make laws. As
there is no legislation covering the field of selection of
candidates for admission to medical colleges, the State
Government would, undoubtedly be competent to pass executive
orders in this regard.
We shall now proceed to consider whether the order in
question is violative of Art. 15 (l) and (2) of the
Constitution. The High Court has held that as the order is
violative of the Regulation of the Council, the order cannot
be supported under Art. 15 (4) of the Constitution. We have
earlier held that the contravention of Regulation II which
is merely directory and in the nature of a recommendation
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does not invalidate the order. As the order in question is
not liable to be struck down on the ground of contravention
of Regulation II of the Council, the order can clearly be
supported under Art. l5 (4) of the Constitution.
It cannot be disputed that the State must do everything
possible for the upliftment of the Scheduled Castes and
Scheduled Tribes and other backward communities and the
State is entitled to make reservations for them in the
matter of admission to medical
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and other technical institutions. In the absence of any law
to the contrary, it must also be open to the Government to
impose such conditions as would make the reservation
effective and would benefit the candidates belonging to
these categories for whose benefit and welfare the
reservations have been made. In any particular situation,
taking into consideration the realities and circumstances
prevailing in the State it will be open to the State to vary
and modify the conditions regarding selection for admission,
if such modification or variation becomes necessary for
achieving the purpose for which reservation has been made
and if there be no law to the contrary. Note (ii) of rule 20
of the Rules for admission framed by the State Government
specifically empower the Government to grant such relaxation
in the minimum qualifying marks to the extent considered
necessary. In the State of Kerala and Anr. v.N.M. Thomas (1)
this Court by a majority had held that relaxation of the
Rules which required a lower division clerk to pass a
departmental test within a period of two years in the
interest of the employees belonging to Scheduled Castes and
Scheduled Tribes was not unconstitutional or illegal. The
relaxation made by the State Government in the rule
regarding selection of candidates belonging to Scheduled
Castes and Scheduled Tribes for admission into medical
colleges cannot be said to be unreasonable and the said
relaxation constitutes no violation of Art. 15 (l) and (2)
of the Constitution. The said relaxation also does not
offend Art. 14 of the Constitution. It has to be noticed
that there is no relaxation of the condition regarding
eligibility for admission into medical colleges. The
relaxation is only in the rule regarding selection of
candidates belonging to Scheduled Castes and Scheduled
Tribes categories who were otherwise qualified and eligible
to seek admission into medical colleges only in relation to
seats reserved for them. The respondent Nivedita Jain and
other deserving candidates may feel that because of the
reservations they are being deprived of the opportunity of
getting their admission into medical colleges. It is.
however, to be noted that the validity of the reservations
of seats for candidates belonging to Scheduled Castes and
Scheduled Tribes categories has not been challenged in the
writ petition and very properly as in view of Art. IS (4) of
the Constitution. In the case of Jagdish Saran and Ors. v.
Union of India and Ors.,(l) relied on by Mr. Phadke, this
Court has held that the Indian Constitution is wedded to
equal protection and non-discrimination and Arts.14, 15 and
16 are inviolable
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and Art. 29 (2) strikes a similar note though it does not
refer to A regional restrictions or reservations; Art. IS
further saves State’s power to make special provisions for
women and children or for advancement of socially and
educationally backward classes and reservations under Art.
IS (4) exist and are applied. This Court further held at p.
855 as under :-
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"Coming to brasstacks, deviation from equal marks
will meet with approval only if the essential
conditions set out above are fulfilled. The class which
enjoys reservation must be educationally handicapped.
The reservation must be geared to getting ever the
handicap. The rationale of reservation must be in the
case of medical students, removal of regional or class
inadequacy or like disadvantage."
The view expressed by the Patna High Court in the case
of Amalendu Kumar v. State of Bihar (supra) that Art. 15 (l)
of the Constitution cannot be meaningful and will become
illusory until minimum standards of proficiency are laid
down and followed in the matter of admission to Medical
Colleges and if undeserving candidates are admitted into
medical colleges, the standard of medical education will go
down, undeserving candidates admitted to medical colleges
would not be able to pass out and qualify as doctors and
there may be many drop-outs and doctors not properly
qualified will prove a danger to society, appears to be
untenable. It fails to notice that there is no relaxation in
the standard of medical education or curriculum of studies
in medical colleges for those candidates after their
admission to the college and the standard of examination and
the curriculum remains the same for all. There may be drop-
outs and many of these candidates may not qualify. There may
also be such failures and drop-outs in the case of other
candidates than those belonging to these categories. It is
eminently desirable that some kind of minimum standard for
selection for admission to medical colleges apart from
eligibility should be there. It has been represented to us
by the Counsel for the State that the State has, in fact,
prescribed such a minimum standard for selection of even the
candidates belonging to Scheduled Castes and Scheduled
Tribes into medical colleges.
The only other ground that was urged in support of the
case of the writ petitioners that the order in question is
illegal and invalid, is that the order violates ordiance 54
of the University of
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Jabalpur. No such ground has been taken in the writ
petition. Though the High Court has considered this
argument, the High Court does not appear to have come to any
definite finding on this question. This question, in the
instant case, cannot be said to be a question of pure law.
In the affidavit which has been filed on behalf of the
University, it has been stated that the ordinance 54 has not
been adhered to. In the absence of any plea being taken in
the writ petition, we are of the opinion that the respondent
is not entitled to urge this point and rely on any alleged
contravention of ordinance 54 of Jabalpur University.
In the result the order in question is not, therefore,
liable to be struck down as being violative of Regulation Ir
or of Art. 15 of the Constitution. The appeal. therefore,
succeeds. The Judgment and order passed by the High Court
are hereby set aside and the writ petition is dismissed.
There will, however, be no order as to costs.
Though this appeal succeeds, yet in our opinion,
justice requires that the respondent Nivedita Jain who has
already been admitted to the Medical College on the basis of
interim order passed by the Court and has been prosecuting
her studies should be allowed to continue her studies and to
continue to be student of the Medical College where she is
already studying. She is otherwise a qualified candidate and
eligible for admission into the medical course which she is
now undergoing and the cause of justice does not require
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that her studies should be interrupted and her career should
not be put in jeopardy. We, therefore, direct the
authorities concerned to treat the student Nivedita Jain as
a regular student of the college where she has been admitted
and to allow her to continue her studies.
S.R. Appealls alllowed.
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