Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 53 OF 2022
DR. N. KARTHIKEYAN AND ORS. ...PETITIONER(S)
VERSUS
THE STATE OF TAMIL NADU
AND ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 2066 OF 2022
[Arising out of SLP(C) No.2514 of 2022]
CIVIL APPEAL NO. 2065 OF 2022
[Arising out of SLP(C) No.13557 of 2020]
WRIT PETITION (CIVIL) NO. 1299 OF 2020
CIVIL APPEAL NO. 3840 OF 2020
CIVIL APPEAL NOS. 38413843 OF 2020
O R D E R
B.R. GAVAI, J.
1. Leave granted in all the Special Leave Petitions.
1
2. Rule granted in the Writ Petitions.
3. Writ Petition (Civil) No.53 of 2022 challenges the validity of
th
G.O. (Ms.) No. 462 dated 7 November, 2020, issued by the
Health and Family Welfare (MCA1) Department of the
Government of Tamil Nadu (hereinafter referred to as “the said
G.O.”). The basic contention of the writ petitioners is that the
reservation of 50% Super Specialty seats (DM/M.Ch.) for in
service candidates in Government Medical Colleges in the State
of Tamil Nadu is not permissible in law.
4. Civil Appeal arising out of Special Leave Petition (Civil) No.
2514 of 2022 challenges the judgment and order of the learned
Single Judge of the High Court of Judicature at Madras dated
th
12 January, 2022, vide which, the said High Court has issued
a direction to the Director of Medical Education, Kilpauk,
Chennai to implement the said G.O. for the academic year
20212022 itself, if there is no legal impediment to do the same.
2
th
5. This Court vide interim order dated 27 November, 2020,
1
passed in Civil Appeal No. 3840 of 2020 had directed that the
counselling for admission to Super Specialty Medical Courses
for the academic year 20202021 shall proceed without
providing for reservations to inservice doctors.
6. The writ petitioners as well as the appellants in the
present case have urged this Court to continue the aforesaid
th
interim order of this Court dated 27 November, 2020 (supra),
even for the academic year 20212022.
7. Per contra, this request made by the writ
petitioners/appellants is vehemently opposed by the learned
counsels appearing on behalf of the State as well as the in
service candidates.
8. We have, therefore, heard the learned counsels for the
parties on the limited question, as to whether the interim
protection, which was granted for the academic year 2020
1 [Dr. Prerit Sharma & Ors. Versus Dr. Bilu B.S. & Ors.]
3
th
2021, vide order dated 27 November, 2020 (supra), should
also be continued for the academic year 20212022 or not.
9. We have heard Shri Dushyant Dave, Shri Shyam Divan
and Shri Gopal Sankaranarayanan, learned Senior Counsel
appearing on behalf of the writ petitioners/appellants as well as
Ms. Aishwarya Bhati, learned Additional Solicitor General
(“ASG”) appearing for the Union of India.
10. Shri C.S. Vaidyanathan, learned Senior Counsel and Shri
Amit Anand Tiwari, learned Additional Advocate General
(“AAG”) have made submissions on behalf of the State of Tamil
Nadu and Shri P. Wilson, learned Senior Counsel has argued
on behalf of the inservice doctors.
11. The learned Senior Counsel appearing on behalf of the
writ petitioners/appellants submitted that the ninejudge
Constitution Bench of this Court in the case of Indra Sawhney
2
as well as Constitution
& Ors. vs. Union of India & Ors.
Bench of this Court in the case of Dr. Preeti Srivastava and
2 1992 Supp. (3) SCC 217
4
3
another vs. State of M.P. and others have specifically held
that there cannot be any reservation for admission in Super
Specialty courses. It is submitted that NEETSS 2021
Information Bulletin (hereinafter referred to as “NEET
Bulletin”), in clause 10.10, specifically states that, as per
judgment of the Constitution Bench of this Court in Writ
Petition (C) No.350 of 1998, there is no reservation of seats for
Super Specialty (DM/M.Ch.) courses. It is submitted that the
case of , which
Dr. Sweety Bhartiya vs. State of M.P. & Ors.
is referred to in the NEET Bulletin, is a case which was a part
of the batch of cases disposed of by this Court in the case of
Dr. Preeti Srivastava (supra).
12. The learned Senior Counsel further submitted that since
the matters regarding coordination and determination of
standards in institutions for higher education or research and
scientific and technical institutions are squarely covered by
Item 66 in ListI of the Seventh Schedule to the Constitution of
India, it is the Regulation issued by the Medical Council of
3 (1999) 7 SCC 120
5
India, which would prevail over the said G.O. It is submitted
that the State will have no power to provide reservation of seats
in Super Specialty courses, in view of the stipulation contained
in clause 10.10 of the NEET Bulletin.
Shri Dave and Shri Divan further submitted that the
13.
finding of the Constitution Bench of this Court in the case of
Tamil Nadu Medical Officers Association and others vs.
4
to the effect that the States have
Union of India and others
legislative competence and authority to provide reservation for
inservice candidates does not lay down a correct proposition of
law. It is submitted that, in view of the judgments of this Court
in the cases of (supra),
Indra Sawhney Dr. Preeti Srivastava
(supra) and other cases, it is not at all permissible to provide
reservation for Super Specialty courses. It is submitted that it
is only merit and merit alone which shall weigh while giving
admissions in the Super Specialty courses.
4 (2021) 6 SCC 568
6
14. It is also submitted by Shri Dave and Shri Divan that the
judgment of this Court in the case of
Tamil Nadu Medical
Officers Association (supra) is restricted only to postgraduate
degree/diploma courses and cannot be made applicable to
Super Specialty courses. It is, therefore, urged that the interim
th
order dated 27 November, 2020 (supra), which was passed by
this Court for the academic year 20202021, should also be
continued for the academic year 20212022.
15. Ms. Aishwarya Bhati, learned ASG appearing for the
Union of India supported the request made by the writ
petitioners/appellants and submitted that the stand of the
Union of India was also to continue the interim protection,
th
which was granted by this Court, vide order dated 27
November, 2020 (supra), for the academic year 20202021.
16. Shri C.S. Vaidyanathan, learned Senior Counsel
appearing on behalf of the State of Tamil Nadu, submitted that
this Bench, consisting of two Judges, is bound by the law laid
down by the Constitution Bench in the case of Tamil Nadu
7
Medical Officers Association (supra). It is submitted that the
Constitution Bench in the case of
Tamil Nadu Medical
Officers Association (supra) has specifically held that the
State is within its competence to provide reservation for in
service candidates. It is submitted that the Constitution Bench
has specifically held that the State is empowered to provide for
a separate source of entry or reservation for inservice
candidates seeking admission to postgraduate degree/diploma
courses, in view of Schedule VII List III Entry 25 of the
Constitution of India. It is submitted that, it has been held by
this Court that the policy for such a reservation must provide
that, subsequent to obtaining the postgraduate degree by the
inservice doctors concerned through such separate channel,
they must serve the State in the rural, tribal and hilly areas for
a certain amount of years and execute bonds for such sum as
the respective State may consider fit and proper.
17. Shri Vaidyanathan further submitted that on account of
nonavailability of the candidates having degree in super
8
specialization, as many as 49 vacancies for the posts of
Professors/Associate Professors and 58 vacancies for the posts
of Assistant Professors could not be filled. It is submitted that
the channel for admission for inservice candidates/categories
is provided so that inservice candidates would serve the State
Government and that they could be appointed on the vacant
posts of Assistant/Associate Professors and Professors. It is
submitted that if this is not done, there is a danger of a large
number of Super Specialty seats being reduced on account of
nonavailability of the requisite number of faculty.
It is further submitted that all the candidates selected
18.
through inservice channels for the Super Specialty courses at
the time of joining are required to execute a bond that they will
serve the Government till their superannuation. It is, therefore,
submitted that, inservice reservation is provided with an
avowed object of getting services of such candidates till their
superannuation. It is submitted that, per contra, if all the
seats are filled in through open channel, prior experience would
9
show that all such candidates would leave after a bond period
of two years or even prior to that by paying the bond money. It
is, therefore, submitted that this will lead to a very dangerous
situation wherein the faculty members would not be available
for Super Specialty seats and the number of such seats would
drastically reduce.
19. Shri Amit Anand Tiwari, learned AAG, submitted that the
stand taken by the Union of India is inconsistent, inasmuch as
the Government of India was already providing separate
entrance examination for postgraduate and Super Specialty
seats and was providing for separate entry for inservice
candidates in the name of ‘sponsored candidates’ (service
candidates of various Government Institutions). He, therefore,
submitted that the Union of India cannot be permitted to take a
contrary view and oppose the separate channel provided for in
service candidates by the State of Tamil Nadu.
20. We clarify that we are passing the present order for the
limited purpose of considering, as to whether the interim order
10
th
dated 27 November, 2020 (supra), which was granted for the
academic year 20202021, should also be continued for the
academic year 20212022 or not. We further clarify that the
present order is being passed only on
prima facie
considerations.
21. No doubt that this Court has passed the interim order
th
dated 27 November, 2020 (supra), thereby directing that
counselling for admission to Super Specialty medical courses
for the academic year 20202021 shall proceed without
providing for reservation to inservice candidates/doctors. It is
th
relevant to note that this Court in the interim order dated 27
November, 2020 (supra), has specifically observed that the
process for admissions to Super Specialty medical courses
rd
started on 3 August, 2020, and it was made clear to all the
competing candidates that there shall be no reservation to
Super Specialty medical courses. This Court further notes that
th
the said G.O. was issued on 7 November, 2020, i.e., after the
admission process had begun. It could thus be seen that what
11
weighed with this Court while passing the interim order dated
th
27 November, 2020 (supra) was that the rules of the game
were changed after the admission process had begun.
However, in the penultimate para, this Court has specifically
clarified that it had not expressed any opinion on the validity of
said G.O. This Court also reiterated that the said direction
would be operative only for the academic year 20202021.
22. Insofar as academic year 20212022 is concerned,
undisputedly, the said G.O. was notified prior to the
commencement of the admission process for the said academic
year.
23. The Constitution Bench in the case of Tamil Nadu
Medical Officers Association (supra) has specifically held that
the State is empowered to provide a separate channel/source of
entry or reservation for admission to postgraduate
degree/diploma medical courses insofar as inservice
candidates are concerned.
12
24. It will not be out of place to mention that this Bench is
sitting in a combination of two Judges. Strong reliance has
been placed on behalf of the writ petitioners/appellants on the
Constitution Bench judgment in the case of Dr. Preeti
Srivastava (supra). With equal vehemence, reliance is placed
by the State of Tamil Nadu and the inservice
candidates/doctors on the Constitution Bench judgment in the
case of Tamil Nadu Medical Officers Association (supra). As
such, we are faced with a challenge as to which of these two
Constitution Bench judgments should guide us while
considering the question, as to whether the interim protection
as was granted for the academic year 20202021 also needs to
be continued or not for the academic year 20212022.
25. In the case of Dr. Preeti Srivastava (supra), the question
that fell for consideration before the Constitution Bench was, as
to whether any type of relaxation would be permissible at the
Super Specialty level. In the said case, the minimum qualifying
marks for the general category candidates were 45%. However,
13
the minimum qualifying marks for the reserved category
candidates were lowered down to 20%. In this situation, this
Court found that this would make it difficult for the reserved
category candidates to bring their performance on par with the
general category candidates in the course of postgraduate
studies. This Court, therefore, found that lowering the
qualifying criteria for reserved category candidates, thereby
resulting in great disparity of qualifying marks between a
general category candidate on one hand and a reserved
category candidate on the other hand, was not permissible.
However, in the case of
26. Tamil Nadu Medical Officers
Association (supra), the question, as to whether the States
have legislative competence to provide for a separate source of
entry or reservation for inservice candidates seeking admission
to postgraduate degree/diploma medical courses, directly fell
for consideration before the Constitution Bench. The
conclusions in the judgment of M.R. Shah, J. in the said case
are as under:
14
“ Conclusions
23. The sum and substance of the above
discussion and conjoint reading of the
decisions referred to and discussed
hereinabove, our conclusions are as under:
That List I Entry 66 is a specific entry
23.1.
having a very limited scope.
23.2. It deals with “coordination and
determination of standards” in higher
education.
23.3. The words “coordination and
determination of standards would mean
laying down the said standards.
The Medical Council of India which
23.4.
has been constituted under the provisions
of the Indian Medical Council Act, 1956 is
the creature of the statute in exercise of
powers under List I Entry 66 and has no
power to make any provision for reservation,
more particularly, for inservice candidates
by the States concerned, in exercise of
powers under List III Entry 25.
23.5. That Regulation 9 of the MCI
Regulations, 2000 does not deal with
and/or make provisions for reservation
and/or affect the legislative competence and
authority of the States concerned to make
reservation and/or make special provision
15
like the provision providing for a separate
source of entry for inservice candidates
seeking admission to postgraduate degree
courses and therefore the States concerned
to be within their authority and/or
legislative competence to provide for a
separate source of entry for inservice
candidates seeking admission to
postgraduate degree courses in exercise of
powers under List III Entry 25.
23.6. If it is held that Regulation 9, more
particularly, Regulation 9(IV) deals with
reservation for inservice candidates, in that
case, it will be ultra vires of the Indian
Medical Council Act, 1956 and it will be
beyond the legislative competence under
List I Entry 66.
Regulation 9 of the MCI Regulations,
23.7.
2000 to the extent tinkering with
reservation provided by the State for in
service candidates is ultra vires on the
ground that it is arbitrary, discriminatory
and violative of Articles 14 and 21 of the
Constitution of India.
23.8. That the State has the legislative
competence and/or authority to provide for
a separate source of entry for inservice
candidates seeking admission to
postgraduate degree/diploma courses, in
exercise of powers under List III Entry 25.
However, it is observed that the policy must
16
provide that subsequent to obtaining the
postgraduate degree by the inservice
doctors concerned obtaining entry in degree
courses through such separate channel
serve the State in the rural, tribal and hilly
areas at least for five years after obtaining
the degree/diploma and for that they will
execute bonds for such sum the respective
States may consider fit and proper.
23.9. It is specifically observed and clarified
that the present decision shall operate
prospectively and any admissions given
earlier taking a contrary view shall not be
affected by this judgment.”
27. The conclusions in the judgment of Aniruddha Bose, J. in
the said case read thus:
“ Because of these reasons, we hold that
95.
there is no bar in Regulation 9 of the MCI
Postgraduate Medical Education
Regulations, 2000 as it prevailed on 152
2012 and subsequently amended on 54
2018 on individual States in providing for
reservation of inservice doctors for
admission into postgraduate medical degree
courses. But to take benefit of such
separate entry channel, the aspiring in
service doctors must clear NEET
examination with the minimum prescribed
17
marks as stipulated in the 2000
Regulations.
96. We respectfully differ from the views
expressed by the Bench of three Hon'ble
Judges of this Court in State of
U.P. v. Dinesh Singh Chauhan [ State of
U.P. v. Dinesh Singh Chauhan , (2016) 9 SCC
749 : 8 SCEC 219] to the extent it has been
held in the said decision that reservation for
the said category of inservice doctors by the
State would be contrary to the provisions of
the 2000 Regulations. In our opinion, that is
not the correct view under the Constitution.
The reference is answered accordingly.
We also expect that the statutory
97.
instruments of the respective State
Governments providing for such separate
channel of entry should make a minimum
service in rural or remote or difficult areas
for a specified period mandatory before a
candidate could seek admission through
such separate channel and also subsequent
to obtaining the degree. On completion of
the course, to ensure the successful
candidates serve in such areas, the State
shall formulate a policy of making the in
service doctors who obtain entry in
postgraduate medical degree courses
through independent inservice channel
execute bonds for such sum the respective
States may consider fit and proper.”
18
28. The question that is required to be decided in the present
batch of cases is, as to whether the said G.O. which provided
for 50% reservation for admission in Super Specialty
courses/seats is permissible in law or not.
29. The Constitution Bench in the case of Tamil Nadu
Medical Officers Association (supra) clearly holds that it is
within the competence of the State Legislature to provide
separate channel/source of entry or reservation for inservice
candidates seeking admission to postgraduate degree/diploma
medical courses. Though, it is sought to be urged on behalf of
the writ petitioners/appellants that the judgment of the
Constitution Bench in the case of
Tamil Nadu Medical
Officers Association (supra) deals only with the postgraduate
degree/diploma medical courses and cannot be made
applicable to Super Specialty courses, and that the present
cases would be governed by the Constitution Bench judgment
in the case of Dr. Preeti Srivastava (supra); we find it, at least
19
prima facie , difficult to accept the said proposition made on
behalf of the writ petitioners/appellants.
30. As to what is ratio decidendi has been succinctly explained
by this Court in the case of
Regional Manager and Another
5
vs. Pawan Kumar Dubey as under:
“7..........Indeed, we do not think that
the principles of law declared and
applied so often have really changed.
But, the application of the same law to
the differing circumstances and facts
of various cases which have come up
to this Court could create the
impression sometimes that there is
some conflict between different
decisions of this Court. Even where
there appears to be some conflict, it
would, we think, vanish when the
ratio decidendi of each case is correctly
understood. It is the rule deducible
from the application of law to the facts
and circumstances of a case which
constitutes its ratio decidendi and not
some conclusion based upon facts
which may appear to be similar. One
additional or different fact can make a
world of difference between
conclusions in two cases even when
the same principles are applied in each
case to similar facts.”
5 (1976) 3 SCC 334
20
It would also be relevant to refer to the following
31.
observations of this Court in the case of Union of India and
6
:
Others vs. Dhanwanti Devi and Others
“9 ........... It is not everything said by a
judge while giving judgment that
constitutes a p r e c e d e n t . T he on l y
t hin g i n a J u d g e ' s decision
binding a party is the principle upon
which the case is decided and for this
reason it is important to analyse a
decision and isolate from it the ratio
decidendi. According to the wellsettled
theory of precedents, every decision
contains three basic postulates (i)
findings of material facts, direct and
inferential. An inferential finding of facts
is the inference which the Judge draws
from the direct, or perceptible facts; (ii)
statements of the principles of law
applicable to the legal problems
disclosed by the facts; and
(iii) judgment based on the combined
effect of the above. A decision is only an
authority for what it actually decides.
What is of the essence in a decision is
its ratio and not every observation
found therein nor what logically follows
from the various observations made in
the judgment. Every judgment must be
read as applicable to the particular facts
proved, or assumed to be proved, since
6 (1996) 6 SCC 44
21
the generality of the expressions which
may be found there is not intended to
be exposition of the whole law, but
governed and qualified by the particular
facts of the case in which such
expressions are to be found. It would,
therefore, be not profitable to extract a
sentence here and there from the
judgment and to build upon it
because the essence of the decision is its
ratio and not every observation found
therein. The enunciation of the reason
or principle on which a question before
a court has been decided is alone
binding as a precedent. The concrete
decision alone is binding between the
parties to it, but it is the abstract
ratio
decidendi, ascertained on a
consideration of the judgment in
relation to the subject matter of the
decision, which alone has the force of
law and which, when it is clear what it
was, is binding. It is only the principle
laid down in the judgment that is
binding law under Article 141 of the
Constitution. A deliberate judicial
decision arrived at after hearing an
argument on a question which arises in
the case or is put in issue may
constitute a precedent, no matter for
what reason, and the precedent by long
recognition may mature into rule of
stare decisis. It is the rule deductible
from the application of law to the facts
and circumstances of the case which
constitutes its ratio decidendi.”
22
32. At the cost of repetition, we may state that the issue
involved in the case of (supra) was, as to
Dr. Preeti Srivastava
whether a relaxation can be provided insofar as minimum
qualifying marks are concerned to the reserved category
candidates, resulting in a huge disparity of qualifying marks for
the reserved category candidates as against the general
category candidates. The question, as to whether a reservation
or a separate channel for admission can be provided to the in
service candidates did not fall for consideration in the case of
Dr. Preeti Srivastava (supra).
As against this, in the case of
33. Tamil Nadu Medical
Officers Association (supra), a direct question, as to whether
the State was competent to provide reservation by a separate
channel for inservice candidates seeking admission to
postgraduate degree/diploma medical courses was permissible
or not, fell for consideration before the Constitution Bench.
The Constitution Bench in the case of Tamil Nadu Medical
(supra) has held that insofar as
Officers Association
23
admission to postgraduate courses are concerned, it is within
the competence of the State Legislature to do so.
34. As such, we find that the facts in the present case are
much nearer to the facts that fell for consideration in the case
of Tamil Nadu Medical Officers Association (supra). We are
also of the prima facie view that the facts that fell for
consideration in the case of Dr. Preeti Srivastava (supra) were
distinct from the facts that fall for consideration in the present
case. We are, therefore, of the considered view that taking into
consideration the principles of judicial discipline and judicial
propriety, we should be guided by the judgment of the
Constitution Bench in the case of Tamil Nadu Medical
(supra) rather than the judgment of the
Officers Association
Constitution Bench in the case of Dr. Preeti Srivastava
(supra).
We are, therefore, of the view that no case is made out for
35.
continuing the interim protection which was granted for the
th
academic year 20202021 vide interim order dated 27
24
November, 2020 (supra) and thus, we reject the prayer in that
regard. Needless to say that the State of Tamil Nadu would be
at liberty to continue the counselling for academic year 2021
2022 by taking into consideration the reservation provided by it
as per the said G.O.
36. List the matters for hearing after vacations.
…..….......................J.
[L. NAGESWARA RAO ]
…….........................J.
[B.R. GAVAI]
NEW DELHI;
MARCH 16, 2022
25