1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 196 OF 2018
Tamil Nadu Medical Officers Association & Ors. ..Petitioner(s)
Versus
Union of India & Others ..Respondent(s)
WITH
WRIT PETITION (CIVIL) No. 252 OF 2018
WRIT PETITION (CIVIL) No. 295 OF 2018
WRIT PETITION (CIVIL) No. 293 OF 2018
CIVIL APPEAL NO. 3025 OF 2020
(@ SLP (CIVIL) No. 26665 of 2019)
CIVIL APPEAL NOS. 302629 OF 2020
(@ SLP (CIVIL) Nos. 2548725490 of 2019)
CIVIL APPEAL NOS. 303031 OF 2020
(@ SLP (CIVIL) Nos. 2644826449 of 2019)
CIVIL APPEAL NOS. 303235 OF 2020
(@ SLP (CIVIL) Nos. 2650726510 of 2019)
CIVIL APPEAL NO. 3036 OF 2020
(@ SLP (CIVIL) No. 26648 of 2019)
CIVIL APPEAL NO. 3037 OF 2020
(@ SLP (CIVIL) No.10289/2020 @
Diary No. 42890 of 2019)
J U D G M E N T
PER M.R. SHAH, J.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2021.09.21
10:51:14 IST
Reason:
Leave & permission granted in the respective special leave
petitions.
2
2. After considering the judgment rendered by a three Judge
Bench of this Court in the case of State of U.P. v. Dinesh Singh
1
Chauhan , another three Judge Bench, pursuant to order dated
13.4.2018 in the case of T.N. Medical Officers Association v. Union
2
of India , has referred the present batch of cases to a larger
Bench.
2.1 In the case of Dinesh Singh Chauhan (supra) , a three Judge
Bench construed the provisions of Regulations 9(IV) and 9(VII) of
the MCI Postgraduate Medical Education Regulations, 2000, as
amended on 15.2.2012 (hereinafter referred to as the “MCI
Regulations 2000”). In the case of Dinesh Singh Chauhan (supra),
while considering the aforesaid Regulations, this Court held that
the aforesaid Regulations do not provide for any reservation for
inservice government doctors in PG degree courses, and
therefore, the State Government order providing the reservation
for PG degree courses for inservice government doctors is held to
be illegal.
2.2 The present batch of cases came up for hearing before
another Bench of three Judges. The Bench was of the opinion
1 (2016) 9 SCC 749
2 (2018) 17 SCC 478
3
that the present batch of cases require consideration by a larger
Bench and that is how the present batch of cases are referred to
a larger Bench. On the basis of the submissions made, the
following reasons were mentioned:
1
“( i ) The decision in Dinesh Singh Chauhan has not considered
the entries in the legislative lists of the Seventh Schedule, more
particularly Entry 66 of the Union List and Entry 25 of the
Concurrent List;
( ii ) The main contention of the petitioners is that while
coordination and determination of standards in institutions for
higher education falls within the exclusive domain of the Union
(Entry 66 List I), medical education is a subject in the
Concurrent List (Entry 25 List III). Though, Entry 25 of List III is
subject to Entry 66 of List I, the State is not denuded of its
power to legislate on the manner and method of making
admissions to postgraduate medical courses;
( iii ) The contentions which have been raised in the present
batch of petitions were not addressed before this Court in
1
Dinesh Singh Chauhan ;
1
( iv ) The judgment in Dinesh Singh Chauhan does not
consider three decisions of the Constitution Bench in R.
Chitralekha v. State of Mysore (1964) 6 SCR 368 :AIR 1964 SC
1823, Chitra Ghosh v. Union of India (1969) 2 SCC 228 and
Modern Dental College & Research Centre v. State of M.P. (2016)
8 SCC 353; and
( v ) There are decisions rendered by Benches of an equal
1
strength as in Dinesh Singh Chauhan .”
2.3 Now so far as Civil Appeals arising out of the Special Leave
Petitions(C) Nos.2644826449 of 2019 are concerned, they arise
out of the impugned judgment and order dated 01/10/2019 in
MAT Nos. 1245 and 1267 of 2019 passed by the High Court at
Calcutta, by which the Division Bench of the High Court has
4
dismissed the batch of appeals confirming the order passed by
the learned Single Judge holding that the State has no authority
to reserve 40% seats for the inservice doctors and 60% seats for
open category doctors.
2.4 In Writ Petition (Civil) No. 196 of 2018 filed under Article 32
of the Constitution of India, the petitioners – Tamil Nadu Medical
officers’ Association and others, for and on behalf of the inservice
doctors in the State of Tamil Nadu have prayed for the following
reliefs:
a) declare by issuance of a writ of mandamus or any
other suitable writ/order/direction that Regulation 9 of
the Post Graduate Medical Education Regulations, 2000
(more particularly, Regulation 9(IV) and 9(VII), does not
take away the power of the States under Entry 25, List III
to provide for a separate source of entry for inservice
candidates seeking admission to Degree courses;
b) Alternatively, if Regulation 9 of the Post Graduate
Medical Education Regulations, 2000 is understood to
now allow for States to provide for a separate source of
entry for inservice candidates seeking admission to
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Degree courses, declare, by issuance of a writ of
mandamus or any other suitable writ/order/direction,
Regulation 9 (more particularly, Regulation 9(IV) and
9(VII) as being arbitrary, discriminatory and violative of
Article 14 and 19(1)(g) of the Constitution and also ultra
vires the provisions of the Indian Medical Council Act,
1956.
Somewhat similar prayers are also sought for on behalf of
the inservice doctors in the State of Kerala (Writ Petition (Civil)
No. 252/2018); inservice doctors working in the State of
Maharashtra (Writ Petition (Civil) No. 295/2018); and for and on
behalf of the inservice doctors working in the State of Haryana
(Writ Petition (Civil) No. 293 of 2018).
2.5 IA Nos.61442, 61443 and 61445 of 2020 have been
preferred by the GMS Class II Medical Officers Association being
aggrieved by the Public Notice dated 28.02.2019 as amended by
the Corrigendum dated 10.03.2019, wherein, Medical Council of
India has permitted the conversion of Diploma seats into Degree
seats in the State of Gujarat. The said application is filed for and
6
on behalf of inservice Medical Officers working in the State of
Gujarat .
2.6 IA No.24759 of 2020 in Writ Petition (Civil) No. 258 of 2018
has been preferred by Kerala Government Insurance Medical
Association and others supporting the reservation for inservice
Medical Officers/Candidates in the Postgraduate Degree
Courses.
3. Learned counsel appearing on behalf of the respective
petitioners/parties, more particularly, Tamil Nadu Medical
Association, State of Tamil Nadu, State of West Bengal and
others in support of the reservation for inservice Medical
Officers/ Candidates/Doctors in Postgraduate Degree Courses
have made the following submissions:
3.1. The moot question is whether the State Government is
competent to provide for a reservation for candidates who are
already serving the Government. Such reservation is made for
Postgraduate seats in the different medical colleges in the State.
The competence of the State Government is traceable to Article
th
245 r/w Entry 25 List III of the 7 schedule to the Constitution.
It cannot be said that there has to be a legislature made law to
7
provide for such reservation. The Government can in exercise of
its power as an Executive under Article 154 provide for such
reservation and it has been so provided as well.
Once competence is found in favour of Government then
only question is one of a possible conflict with a Central Law and
the resolution of any question of repugnancy. It is submitted that
said question really does not arise in the present case;
3.2. The competence of the State Government to bring about a
law dealing with admissions of inservice candidates is upheld by
the Constitutional Bench of this Court in the case of Modern
Dental College and Research Centre and Others vs. State of
3
Madhya Pradesh and Others . The argument raised on behalf of
the Centre that Entry 25 of List III itself would be subject to
Entry 66 of List I has also been considered by this Court;
3.3. There is no question of any conflict of Entry 25 of List III
and Entry 66 of List I. The subject of admission to courses is
referable to Entry 25 of list III and not Entry 66 of List I. It is
submitted that conflict, if any, can only be between a State Law
3 (2016) 7 SCC 353
8
and a Central Law both sourced to Entry 25 of List III. That no
such conflict is present in the instant case;
3.4. There is no plenary law by the Centre provided for any
reservation for inservice candidates. In other words, there is no
Central Law governing the said aspect, therefore, it would be
competent for the State Government to provide for a reservation
for inservice candidates. In the absence of a Central Law, it is
obviously open to the State Government to provide for a legal
instrument, whether by way of a statute or by an executing order
providing a reservation for inservice candidates;
3.5. The MCI Regulations, 2000, which are made under the
Medical Council Act provide for a reservation in Postgraduate
Diploma Courses for inservice candidates serving with the
respective State Governments. There is no bar to such
reservation in Postgraduate Degree Courses. The bar, if any, has
to be express and cannot be implied. Clause 9(IV) of the MCI
Regulations, 2000 can be construed as provided for community
reservations and also a reservation for inservice candidates.
Even otherwise, it does not enable explicitly the State
Government to provide for a weightage in marks, amongst in
9
service candidates. Thus, the legislative instrument which could
be sourced to the MCI, which in turn is a body established by the
Central Government under the Medical Council Act itself
recognizes an empowerment of the State Government,
inter alia,
to lay down the modalities to regulate or provide for a reservation
for inservice candidates in Postgraduate seats. If that be so,
then the actual prescription of a reservation for inservice
candidates, in relation to Postgraduate Degree seats obviously
has not come into conflict with the MCI Regulations, 2000 so as
to attract Article 254 of the Constitution;
3.6. The MCI Regulations, 2000, not expressly providing for a
reservation in Postgraduate Degree seats, specifically
empowering the State Government to do so, but only touches
upon the reservation in Diploma seats, it does not follow that the
State Government is incompetent to provide for reservation for
inservice candidates in Degree seats as well. The competence of
the State Government to provide for reservation for inservice
candidates is not sourced to the MCI Regulations, 2000, but it is
sourced to Entry 25 of List III. Thus, the absence of any mention
of reservation for candidates in Postgraduate Degree seats in the
10
Regulations, 2000 cannot support a submission by the MCI that
consequently the State Government would be incompetent to
provide for any reservation for inservice candidates in Degree
seats;
3.7. The MCI Regulations, 2000 would become relevant only
when it provides for reservation in Postgraduate Degree seats
and the State Government brings about a policy of reservation in
Postgraduate Decree seats at variance from the protocol laid
down in the MCI Regulations. The MCI Regulations, 2000 are
silent in regard to the reservation in Postgraduate Degree seats
and therefore, possible repugnancy under Article 254 of the
Constitution of India really cannot arise between an instrument
by the State Government and an instrument by the Central
Government which does not cover the subject or touch upon the
subject provided for by the State Government;
3.8. Assuming without admitting that though MCI Regulations
do provide for a conversion of Diploma seats into Degree seats, by
the State Government with the approval of the MCI, the MCI
Regulations, 2000 do not specifically mention the consequences
of such conversion. When law provides for a particular event to
11
take place then all reasonable consequences that emanates
therefrom should also be inferred, should be applied to the
present situation as well;
3.9. Even MCI Regulations, 2000 themselves provide for
reservation for inservice candidates in Diploma and also
provides for service condition to be fulfilled thereunder. The
conversion of Diploma seats into Degree seats (now after 2018)
would obviously result in the same permissible reservation for in
service candidates to be provided for Degree seats as well. All that
would be required is the imposition of the same conditions as are
provided in the Diploma seats;
3.10.The decision of this Court in the case of Dinesh Singh
Chauhan (Supra) also requires relook in view of the subsequent
development viz. Notification dated 12.07.2018 by which, MCI
has permitted the Medical College/Medical Institution to “seek
equal number of Postgraduate Degree seats by surrendering
recognized diploma seats in corresponding course”. It is
submitted that pursuant to the said Notification the medical
colleges/institutions are/were given the option of converting the
available post graduate diploma seats into Postgraduate Degree
12
seats in a 1:1 ratio. It is submitted that pursuant to the said
notification most of the medical colleges/medical institutions in
the respective States have surrendered the Postgraduate
Diploma seats and have converted the same to Postgraduate
Degree seats. It is submitted that resultant effect is that now
there shall not be any Postgraduate Diploma seats available and
therefore, inservice candidates are left in a situation where even
the limited benefit conferred on them in form of 50% reservations
in Postgraduate Diploma Course can no longer be availed. As a
result, inservice candidates have been left in a complete lurch
since they would neither be able to qualify for Postgraduate
Degree course in adequate numbers nor be in a position to avail
the Postgraduate Diploma seats previously available in the
Government Colleges. In view of the above development, the
reasoning in the case of Dinesh Singh Chauhan (supra) as to the
difference in the Regulations between Postgraduate Diploma and
Degree courses no longer survives;
3.11. Right of the State Government to set apart a definite
percentage of educational seats at Postgraduate level consisting
of Degree and Diploma courses exclusively for a class of persons
13
as a separate source of entry has been repeatedly upheld by this
Court with the condition that source is properly classified –
whether on territorial, geographical or other reasonable basis and
has a rational nexus with the object of imparting a particular
education and effective selection for the purpose. Reliance is
placed upon the decision of this Court in the cases of (1) Kumari
4
Chitra Ghosh and Anr. vs. Union of India & Ors. ; (2) D.N.
5
Chanchala vs. The State of Mysore and Ors. ; (3) K Duraisamy &
6
Anr vs. State of Tamil Nadu and Ors ; (4) AIIMS Students Union
7
vs. AIIMS ; and (5) State of Madhya Pradesh & Ors vs. Gopal D
8
Tirthani and Ors ;
3.12. It has been consistently held by this Court that there
is a legitimate and rational basis in providing a separate
channel/source of entry for inservice candidates in order to
encourage them to offer their services and expertise to the State.
It is submitted that this Court has acknowledged that this has a
sufficient nexus with the larger goal of equalization of educational
opportunities and to sufficiently prefer the doctors serving in the
various hospitals run and maintained out of public funds, in the
4 (1969) 2 SCC 228
5 (1971) 2 SCC 293
6 (2001) 2 SCC 538
7 (2002) 1 SCC 428
8 (2003) 7 SCC 83
14
absence of which there would be serious dearth of qualified Post
graduate doctors to meet the requirements of the common public;
3.13. Unlike reservation envisaged for Scheduled Caste/
Schedule Tribes, this is a distinct and vitally important public
purpose in itself absolutely necessitated in the best of public
interest. In the case of Dinesh Singh Chauhan (supra) this Court
has held that no fault can be found with the method of providing
a separate channel of entry for inservice candidates for the
reason that the facilities for keeping up with the latest medical
literature might not be available to such inservice candidates
and the nature of the work makes it difficult for them to acquire
knowledge about very recent medical research, which the
candidates who has come after freshly passing their graduation
examination might have;
3.14.In the case of Modern Dental College and Research Centre
, the Constitution Bench of this Court has affirmed that
(supra)
even though Entry 25 List III is subject to Entry 66 List I, the
power of States to enact laws concerning admissions would not
stand extinguished so long as such laws did not have the effect of
wiping out the law enacted by the Union under Entry 66 List I;
15
3.15.When the States create a separate source of entry for in
service candidates, the standards of medical education are not
impinged inasmuch as;
(a). only eligible inservice candidates can qualify i.e.
those have obtained minimum eligibility marks;
(b). amongst eligible inservice candidates admission is
made based on intersemerit;
(c). The preferential weightage would merely alter the
order in which in –service candidates would rant in the
merit list prepared for inservice candidates. Thus, it
would not be a case of ‘double reservation’;
3.16.As held by this Court in the case of Yatinkumar Jasubhai
9
, which was in the
Patel & Ors vs. State of Gujarat and Ors
context of “institutional preference” for Postgraduate Medical
Admission, only obligation by virtue of introduction of NEET is
that the State cannot hold any separate test for admissions to
Postgraduate courses. As observed, even while giving the
admission in the State quota/institutional reservation quota, the
merit determined on the basis of NEET will still have to be
considered. It is submitted that therefore, provision of a separate
source of entry for inservice candidates shall not dilute the
standards of higher education in any manner since the
9 (2019) 10 SCC 1
16
candidates in question would still have to obtain the minimum
merit prescribed under NEET;
3.17. The reservation referred in the opening part of Regulation
9(IV) is only with respect to reservation as per the constitutional
scheme i.e. SC, ST and OBCs and not for inservice candidates or
Medical Officers in–service. This is also acknowledged by this
Court in the case of Dinesh Singh Chauhan (supra) in para 25.4.
It is submitted that therefore, there is no merit in the statement
of defence by the respondent that inservice candidates for Post
graduate Degree Course are already governed by the reservation
provided for in Regulation 9(IV);
3.18.It is submitted that so far as State of Tamil Nadu is
concerned, the Hon’ble Chief Minister of Tamil Nadu in his letter
dated 25.4.2017 to the Hon’ble Prime Minister, has highlighted
that providing only 30% weightage to inservice candidates
seeking admission to Postgraduate Degree Course is not enough
since if this procedure is followed, out of the 557 Postgraduate
government seats available under the State quota in Tamil Nadu,
only 20 seats would go to inservice quota candidates. It is
submitted that vide letter dated 6.2.2019, the State of Tamil
17
Nadu wrote to the Ministry of Health and Family Welfare and
highlighted the contribution of the policy to provide 50%
reservation for inservice candidates in Postgraduate degree
courses in attracting meritorious Doctors to Government service
and also enabling the State Government to provide uninterrupted
health care in rural, difficult and remote areas of the State. It is
submitted that it was further highlighted that this reservation
was critical for the maintenance of quality health care in the
government medical facilities;
3.19.Learned counsel appearing on behalf of the State of Tamil
Nadu has highlighted the benefits to be achieved by providing
50% reservation for inservice candidates in Postgraduate
Degree/ Diploma Courses. It is submitted that continuance of
given incentive marks and reserving 50% seats for inservice
candidates who performed duty in remote, rural area, hilly
terrain etc. in Postgraduate courses will sustain the achievement
made by the State Government in the health sector and provide
valuable medical care to the poor and vulnerable society. It is
submitted that therefore, it is in the larger public interest of the
State that there is a provision for 50% reservation in Post
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graduate Degree/Diploma Courses/seats for inservice
candidates;
3.20. So far as the State of West Bengal is concerned, learned
counsel appearing on behalf of the State of West Bengal as well
as Government Doctors serving in the Government Hospitals in
the State of West Bengal in support of the reservation of 40% of
the state quota Postgraduate Medical seats for inservice Doctors
have made in addition to the following submissions:
3.20.1. That the State of West Bengal has enacted the West
Bengal Health Services Act, 1990 for controlling the services of
the inservice doctors. Under Section 21 of the said Act, the State
has the Rule making power and in exercise of that power the
State has enacted the West Bengal Health Service and the West
Bengal Medical Education Service and the West Bengal Health
and Public Administrative Service (Placement on Trainee Reserve)
Rules, 2015. As per the note of Rule 3 of the said Rules, the State
is empowered to make reservation in the seats of the Medical
Courses of the State Universities for its officers under West
Bengal Health Service and the West Bengal Medical Education
Service and the West Bengal Health and Public Administrative
19
Service. It is submitted that such note was also there in the
Rules of 2008, which came to be repealed in view of enactment of
Rules 2015. That the Government vide order dated 18.4.2013
provides for the reservation of 40% of the State quota Post
graduate Medical seats for the inservice doctors in exercise of
such power;
3.20.2. That the action of the State to provide inservice quota
is in the discharge of its positive constitutional obligations to
promote and provide better health care facilities for its citizens by
upgrading the qualifications of the existing inservice doctors so
that the citizens may get more specialized health care facility.
Such action is in discharge of its constitutional obligations as
provided in Article 47 of the Constitution of India which is the
corresponding fundamental right of the citizens protected under
Article 21 of the Constitution of India;
3.20.3. The State can fix a separate source of admission as the
inservice doctors are distinct class. The classification has
sufficient nexus with the laudable object of meeting the
requirement of qualified Postgraduate doctors for the public
20
health service. Reliance is placed upon decision of this Court in
10
the case of Sudhir N vs. State of Kerala and Ors . ;
3.20.4. By way of providing separate source of entry to the in
service doctors, the State has not impinged upon the minimum
standards prescribed by the Medical Council of India as in
service candidates are selected on the basis of their merit
assessed on the basis of their marks obtained in the NEET
examination;
3.20.5. The action of providing separate quota for the in
service doctors is not violative of the Regulation 9(IV) of the MCI
Regulations, 2000 as the same categorically states in an
unambiguous manner, inter alia, that the reservation of seats
shall be as per applicable laws prevailing in the State. By giving
restrictive meaning to the term ‘reservation’ as only constitutional
reservation, it would be putting words to the legislation which is
otherwise unambiguous and includes all kinds of reservation
including that of inservice;
3.20.6. Inservice Doctors come with vast practical experience
of serving several years in the Government Health Services and
10 (2015) 6 SCC 685 (paras 22 to 24)
21
treating countless patients. Whereas the fresh MBBS graduates,
even though may score higher because of their recent connection
with the textbooks, do not have any such experience. Their
marks are only reflective of their theoretical knowledge and
ability to memorize and answer examination questions. It is
submitted that thus, inservice Doctors having vast experience
and fresh graduates having no such experience, form two
different classes and cannot be equated. It is submitted that
forcing inservice Doctors to compete with the fresh graduates in
their theoretical knowledge will be extremely, unfair, illogical and
irrational;
3.21.In addition, learned counsel appearing on behalf of the
private appellants in the Civil Appeals arising out of impugned
judgment and order passed by the High Court of Calcutta and in
service candidates have further submitted that the reservation
notification was issued on 18.4.2013 and the writ petition has
been filed after first counselling was over for 2019 admission. All
admissions were completed in May 2019 and 285 doctors out of
the State quota of 699 have almost completed the first semester.
It is submitted that therefore, alternatively it is prayed to observe
22
that the impugned judgment and order passed by the High Court
may not affect the admission already granted and may not affect
those inservice candidates who are already admitted prior to
filing of the petition / impugned judgment and order passed by
the High Court;
4. The applicant of IA No.61442 of 2020 – GMS Class II
Medical Officer’s Association and Association of inservice
Government Medical Officers in the State of Gujarat are as such
aggrieved by the Public Notice dated 28.02.2019, as amended by
a Corrigendum dated 10.03.2019, wherein Medical Council of
India has permitted the conversion of Diploma seats into Degree
seats on the ground of doctrine of Legitimate Expectation and on
the ground that the same is in teeth of and to bypass the order
passed by this Court dated 19.5.2017 in the matter of Special
Leave Petition (Civil) No.31395 of 2017. It is submitted that in the
aforesaid case this Court directed the State of Gujarat to conduct
the counselling keeping in view the regulation which provides for
50% of seats to be reserved in the Postgraduate Diploma Courses
for Medical Officers in the government service who have served for
at least three years in remote and/or difficult areas. It is the case
23
on behalf of those inservice Medical Officers working in the
Government Colleges in the State of Gujarat that by the aforesaid
vested rights in favour of those inservice candidates and to avail
50% reservation in Postgraduate Diploma Courses have been
taken away. It is their case that what cannot be done directly,
shall not be permitted to be done obliquely. It is also their case
that so far as the State of Gujarat is concerned, there is no
provision for giving 30% incentive for Postgraduate Degree
Courses displaced in Clause 9(IV) of the MCI Regulations, 2000. It
is submitted that therefore, on one hand Diploma seats are being
decreased and on the other hand there is no provision for
providing incentive marks in the Degree Courses to the inservice
Medical Officers, who have worked in rural areas. It is submitted
that the applicant has already filed writ petition before the
Gujarat High Court being Special Civil Application No.5773 of
2019 challenging the vires of Rule 6 of the Gujarat Professional
Postgraduate Medical Educational Courses (Regulation of
Admission) Rules, 2018 as well as conversion of Diploma seats
into Degree seats and the same is pending;
24
4.1. Learned counsel appearing on behalf of the respective
writ petitioners – inservice doctors have made the following
submissions in respect of their alternative prayer/prayers to
declare Regulation 9, more particularly, Regulation 9(IV) and
9(VII) of the MCI Regulations, 2000, as arbitrary, discriminatory
and violative of Article 14 and 19(1)(g) of the Constitution of India
and also ultra vires the provisions of the Indian Medical Council
Act, 1956;
4.2 That so far as the State of Tamil Nadu is concerned, it is
submitted that since the year 1989, the State of Tamil Nadu has
had a policy of providing a separate source of entry to inservice
candidates to the extent of 50% of the State seats in degree
courses. Further, since the year 2007, by way of a Government
Order, the State of Tamil Nadu has also provided for preferential
weightage to those inservice candidates who have served in
rural, hilly and difficult areas. Therefore, the policy of the State
Government has been adopted with a view to ensure adequate
healthcare in the public sector and to further ensure filling of
vacancies in government hospitals, particularly in rural, hilly and
difficult areas. That the aforesaid policy following by the State of
25
Tamil Nadu has resulted in drastic improvement in the overall
public healthcare with adequate staffing across the State and
improvement in health indicators, particularly when compared to
other States in the country;
4.3 Learned counsel appearing on behalf of the inservice
candidates working with the State of Kerala has submitted that
the State of Kerala had a policy of reserving 40% of the seats
available in postgraduate medical admission for inservice
candidates serving in the Health Service Department, Medical
College Lecturers and doctors serving in the ESI Department of
the State. That MCI Regulations, 2000, however, made it
mandatory for all candidates seeking admission to postgraduate
medical courses to appear for a common entrance examination.
The MCI Regulations, 2000, inter alia, provide that candidates
who appear in the common entrance examination and secure
50% in the case of general category candidates and 40% in the
case of SC/ST candidates alone shall be qualified for such
admission. Consequently, even inservice candidates had to
appear and qualify in the common entrance examination.
Considering the hardship faced by the inservice candidates who
26
were working round the clock for the benefit of the public could
hardly find time to update their knowledge and compete with the
general merit candidates, the Government of Kerala brought the
Kerala Medical officers Admission to Post Graduate Courses
under Service Quota Act, 2008 to overcome the difficulties faced
by inservice candidates in the matter of getting admission to
postgraduate courses;
4.4 Learned counsel appearing on behalf of the inservice
candidates working with the State of Maharashtra has submitted
that so far as the State of Maharashtra is concerned, the State of
Maharashtra by a resolution dated 06.01.1990, decided to reserve
15% of postgraduate seats in Government Medical Colleges for
the inservice candidates to meet the acute shortage of doctors in
rural areas. The said resolution was issued to serve as an
incentive for graduate doctors to take up government service at
primary health centres which were suffering due to the acute
shortage of doctors in rural areas. However, since the
requirement of doctors was not met with, the State of
Maharashtra by another Government Resolution dated
22.02.1996 increased the reservation of seats for inservice
27
candidates from 15% to 25%. However, in view of the Regulations
framed by the Medical Council of India, the inservice candidates
are suffering and ultimately the public health in the rural, hilly
and remote areas is being suffered and ultimate sufferer is the
public at large in those areas;
4.5 So far as the State of Haryana is concerned, it is the case on
behalf of the inservice candidates working with the State of
Haryana that the State of Haryana had the policy of reserving
27% of the seats in the postgraduate medical courses in the
Government Colleges for inservice candidates. However, the
percentage of seats reserved for the inservice candidates was
increased in 2001 from 27% to 40% until 2016 for admission to
postgraduate medical courses for inservice doctors in Haryana
out of the 50% State quota;
4.6 In respect of their alternative prayers referred to
hereinabove, learned counsel appearing on behalf of the
respective petitioners – inservice doctors have made the following
further submissions:
i) In catena of judgments starting from Kumari Chitra Ghosh
(supra); K. Duraisamy (supra); AIIMS Students’ Union (supra); and
28
Gopal D. Tirthani (supra) , this Court has repeatedly upheld the
right of the State Governments to set apart a definite percentage
of educational seats at postgraduate level consisting of degree and
diploma courses exclusively for a class of persons as a separate
source of entry, with the condition that the source is properly
classified whether on territorial, geographical or other reasonable
basis and has a rational nexus with the object of imparting a
particular education and effective selection for the purpose;
It is submitted that in the aforesaid decisions, this Court
has upheld providing inservice candidates a separate source of
entry by accepting that the classification of candidates between
inservice doctors and nonservice doctors has a reasonable
nexus with the objective sought to be achieved, i.e., of providing
adequate and affordable healthcare in the public sector;
ii) The power of the State to provide for a separate source of
entry in matters of admission in medical education flows from
Entry 25, List III of the Constitution, whereas the power of the
Union in matters of “coordination and determination of
standards” in matters of admission in medical education is
derived from Entry 66 of List I and Entry 25 of List III;
29
iii) This Court in the case of Modern Dental College (supra) has
specifically held after considering the earlier decisions that Entry
66 of List I was a specific entry having a very specific and limited
scope, i.e., dealing with “coordination and determination of
standards” in institutions of higher education or research as well
as scientific and technical institutions. It has been further held
that the words “coordination and determination of standards”
would mean laying down the said standard and thus, when it
comes to prescribing the standards for such institutions of higher
learning, exclusive domain is given to the Union. Insofar as
medical education is concerned, the same is achieved by
parliamentary legislation in the form of Medical Council of India
Act, 1956 and by creating a statutory body like Medical Council of
India, the functions of which take, within its sweep,
determination and coordination of standards in a medical
institution and that of educational institutions. It is further
observed that when it comes to regulating education as such
which includes medical education as well as universities
(imparting higher education), that is prescribed in Entry 25 of List
III, thereby giving concurrent powers to both Union as well as
States. It is further held that the power of the States to enact
30
laws under Entry 25, List III would not stand extinguished so
long as such laws did not have the effect of wiping out the law
enacted by the Union under Entry 66 of List I;
4.7 It is further submitted that the observations of this Court in
the case of Dinesh Singh Chauhan (supra) as regards Regulation 9
prohibiting the States to provide a separate source of entry for in
service candidates require reconsideration inasmuch as:
a) there is no express or implied bar contained in Regulation
9 which prohibits the States from exercising their power under
Entry 25, List III and providing a separate channel of entry to in
service candidates. On the contrary, the fact that preference is
given to inservice candidates is perceived to be a laudable
objective by the Union also, is evident from the proviso to
Regulation 9(IV) and Regulation 9(VII). However, Regulation 9
has not (rightly so) prescribed a uniform policy for a separate
source of entry since only the State, which is fully aware of the
unique and peculiar facts of that State, can, if necessary, provide
for a separate source of entry for that State;
b) that this Court relied upon the findings in
Sudhir N
(supra) , to the effect that Regulation 9 is a complete code in itself,
31
to arrive at the conclusion that the State Governments could not
provide a separate channel of entry to inservice candidates.
However, this Court failed to consider that even in Sudhir N
(supra) , the case of Gopal D. Tirthani (supra) had been approved
and the impugned law framed by the State of Kerala had been
struck down on account of the State of Kerala giving the inter se
merits of inservice candidates a gobye by fixing the criteria for
admission as inter se seniority. Thus, even in Sudhir N (supra) ,
the power of the State Governments to provide a separate channel
of entry to inservice candidates was affirmed;
c) that this Court did not take into account the fact that by
providing a separate source of entry for inservice candidates,
there would be no lowering of standards prescribed by the
Medical Council of India since eligible candidates would have met
the minimum qualification marks set out in NEET and moreover
the admission would take place based on the inter se merits of
the inservice candidates;
d) that this Court did not take into account the relevant
findings in the case of Modern Dental College (supra) , more
particularly, paragraphs 29 and 30;
32
e) that this Court also did not consider that its
interpretation of Regulation 9 in such a manner as to render the
States powerless in the matter of creating a separate source of
entry would be contrary to various decisions of this Court which
have affirmed the right of the State Government to determine the
admission process keeping in view their peculiar conditions with
the caveat that there is no laying down of uniform standard
prescribed by the Union;
f) that mere incentives as mentioned in Clauses (IV) and
(VII) of Regulation 9 of the Regulations, 2000 with respect to in
service government doctors will result in less number of people
opting Government services thus affecting the underprivileged
and underserved population across the State. That there is an
absolute dearth of doctors entering Government services since
very few MBBS doctors join government service after their
graduation. This situation affects the underprivileged, under
served and poorest of poor people across the country who prefer
public sector/government run hospitals or primary health centres
for their treatment as they are not in a financial position to afford
the private hospitals. Hence, in order to retain the doctors in
33
government services and continue with them for a longer
duration, it is vitally important and absolutely necessitated in the
best of public interest for the States to carve out a separate
channel of entry for the inservice candidates in admission to
postgraduate medical courses. Heavy reliance is placed upon the
decision of this Court in the case of PrePG Medical Sangharsh
11
Committee v. Dr. Bajrang Soni ;
g) that Regulation 9 of the Post Graduate Medical
Education Regulations, 2000 cannot expressly or impliedly take
away the power of the State Government under Entry 25, List III
to provide either reservation or weightage in marks for all the in
service candidates and in no way providing such reservation for
all inservice candidates, would be lowering the standard
prescribed by MCI since eligible candidates would have met the
minimum qualification marks set out in the NEET entrance test
and moreover the admission would take place based on inter se
merits of the inservice candidates;
h) that the power of the State Government to provide for
reservation or separate channel of entry for inservice candidates
at the postgraduate level so long as the minimum standards of
11 (2001) 8 SCC 694
34
qualification is maintained has been held to be constitutionally
valid by this Court in catena of decisions;
i) that even otherwise providing reservation for inservice
candidates in postgraduate diploma courses (as per Regulation
9(VII)) only and not providing any specific provision for
reservation for inservice candidates in postgraduate degree
courses is absolutely arbitrary and colourable exercise of power.
It is submitted that there is no logic and reason to provide for
reservation only in postgraduate diploma courses and not in
postgraduate degree courses. It is submitted that not providing
for any reservation for inservice candidates in postgraduate
degree courses is discriminatory and violative of Article 14 of the
Constitution of India;
j) that any interpretation of Regulation 9, which allows
for reservation for inservice candidates in diploma courses but
prohibits a separate source of entry for inservice candidates in
degree courses therefore is wholly arbitrary and without any
application of mind inasmuch as it completely fails to consider
that the need to adequately staff rural healthcare is not only at a
35
basic level but more so at a specialised level since the shortage of
staff in specialised healthcare is even more acute and serious;
k) that in case Regulation 9 is understood to not provide a
separate channel of entry for inservice candidates seeking
admission to degree courses, then the same would be ultra vires
Section 20 of the Indian Medical Council Act, 956 inasmuch as
Section 20 only mandates that MCI prescribes the standards of
postgraduate medical education, i.e., prescribes the minimum
qualification marks but does not in any way empower MCI to
impede the wellrecognised right of the States to create a separate
channel for persons it may deem fit;
4.8 If it is understood that MCI Regulations, 2000 provide for
any reservation for inservice candidates in postgraduate degree
courses and do not provide a separate channel of entry for in
service candidates, then the same would be ultra vires to Section
33 of the Indian Medical Council Act, 1956 inasmuch as it would
be beyond the scope and ambit of the MCI to make any provision
for separate channel of entry for inservice candidates;
4.9 The MCI Regulations, 2000 do not and cannot take away the
powers of the respective States to make special provision for in
36
service candidates, looking to the need and requirement of the
particular State in exercise of the power under Entry 25 of List III
of the Constitution. It is submitted that “institutional preference”
for postgraduate medical admissions is held to be permissible by
this Court in catena of decisions. It is submitted that therefore
once the “institutional preference” for postgraduate medical
admissions within the State quota is held to be permissible,
similarly providing a separate channel for inservice candidates in
the form of certain percentage by way of reservation, looking to
the specific need and requirement of the State and that too within
the State quota is certainly permissible and the MCI Regulations,
2000 cannot take away the powers/authority of the concerned
States to make special provision for inservice candidates for
postgraduate medical admissions within the State quota and
without compromising the merits, namely, following the minimum
eligibility criteria framed by the MCI;
4.10 Learned counsel appearing on behalf of some of the in
service candidates working with the State of West Bengal, in
addition, has made the following submissions:
37
a) that the Indian Medical Council Act, 1956 has been
enacted for the sole purpose of coordination and determination of
standards in exercise of the power of the Union Legislature under
Entry 66 of List I of Schedule VII. The power of regulating
“Education” as such is prescribed in Entry 25 of List III giving
concurrent power to both States and the Union. The entire
gamut of admission is not covered under Entry 66 of List I of
Schedule VII excluding Entry 25 of List III, though Entry 25 of
List III is subjected to Entry 66 of List I;
b) that there is no conflict between the power of the Union
and the States. The occupied field of Union Legislation is only
related to minimum standards of medical education and the State
has provided for inservice quota without impinging the
prescribed minimum standards;
c) that the power of the State in providing reservation has
to be tested within the Constitutional framework and the State
has not travelled beyond its powers in providing quota for the in
service doctors in postgraduate medical admission and the same
has been provided within the framework of the Constitution of
India;
38
d) that the power of the State under Entry 6 of List II of
Schedule VII to legislate in the subject matter of public health
and hospital is exclusive. The State of West Bengal has enacted
the West Bengal Health Services Act, 1990 under such exclusive
legislative power. Under Section 21 of the said Act, the State has
the Rule making power and in exercise of that power the State
has enacted the West Bengal Health Service and the West Bengal
Medical Education Service and the West Bengal Health and
Public Administrative Service Rules, 2015. That as per Note of
the Rule 3 of the said Rules, the State is empowered to make
reservation in the seats of the medical courses of the State
Universities for its officers under West Bengal Health Service.
The Government Order dated 18.04.2013 provides reservation of
40% of the State quota in the postgraduate medical seats for the
inservice doctors. Such Note is a part of the Statute;
e) that the action of the State to provide for the inservice
quota is in the discharge of its positive constitutional obligations
to promote and provide better health care facilities for its citizens
by upgrading the qualifications of the existing inservice doctors
so that the citizens may get more specialized health care facility.
39
Such action of the State is indeed in discharge of its
constitutional obligations as provided in Article 47 of the
Constitution of India which is the corresponding fundamental
right of the citizens protected under Article 21 of the Constitution
of India;
f) that the power of the State under Entry 6 of List II of
Schedule VII is exclusive and the same is not subject to any other
entry of the List I. The Court cannot give an interpretation which
may make such independent entry subject to any entry of List I
which was not the intention of the framers of the Constitution of
India;
g) that the State can fix a separate source of admission as
the inservice doctors are distinct class. The classification has
sufficient nexus with the laudable object of meeting the
requirement of qualified postgraduate doctors for the public
health service;
h) that the observations made by this Court in the case of
Sudhir N (supra) that Regulation 9 is a complete code by itself is
required to be considered with reference to the context and the
controversy in the said case. It is submitted that the
40
observations in the case of Sudhir N (supra) that Regulation 9 is a
complete code in itself may not be construed with respect to
providing reservation and/or making special provision like
providing separate source of entry for inservice candidates within
the State quota and subject to fulfilling all other eligibility criteria
fixed and provided by the MCI. It is submitted that in that sense
the observations made by this Court in Dinesh Singh Chauhan
(supra) that as held by this Court in Sudhir N (supra) that
Regulation 9 is a complete code in itself including the reservation
may not be accepted and is not a good law;
i) it is further submitted that even as provided under
Regulation 9(IV) of the MCI Regulations, 2000, the reservation of
seats shall be fixed as per the prevailing laws in the State.
Therefore, by giving restrictive meaning to the term “reservation”
as only constitutional reservation, it would be putting words to
the legislation which is otherwise unambiguous and includes all
kinds of reservation including that of inservice;
4.11 It is submitted by the learned counsel appearing on behalf of
the State of West Bengal that if Regulation 9(IV) is considered to
be limited only to reservations in favour of SC/ST/OBC, then the
41
proviso is not in the form of an exception as it is independently
dealing with inservice doctors. The proviso then becomes
substantive provision and is more concerned with the marks to be
allocated which is the concern of Regulation 9(III). This proviso
confers a discretion on the State to provide for weightage in
marks for services rendered in remote or difficult areas. The
proviso was required because Regulation 9(III) prescribes for the
obtaining of minimum marks in the NEET exam. The States
could not have relaxed or tinkered with the marking system.
Therefore, proviso enables the State by conferring a discretion to
provide for weightage. The proviso has nothing to do with the
reservation in the postgraduate degree courses and it will not
negate the States power to make reservation;
4.11.1 Regulation 9(VII) provides that 50% of the seats in
postgraduate diploma courses shall be reserved for medical
officers in the government service. Firstly, this Regulation merely
deals with diploma courses and has no relevance to postgraduate
degree courses. Secondly, this provision makes it an obligation on
the part of the State to reserve 50% seats for inservice doctors.
The State, is therefore, left with no discretion and is bound to
42
make such reservations in diploma courses. This provision would
not negate the discretionary power of the State Government to
make reservation for inservice doctors.
4.11.2 Regulation 9 contains no specific clause or expression
which would indicate that the field of making reservations for in
service doctors in the postgraduate degree courses has been
covered. Hence, Regulation 9 is not a complete and exhaustive
code;
4.11.3 That by making Regulation 9(IV) and 9(VII), the
intention is not to exclude reservation for inservice candidates in
postgraduate degree courses. If the language in the provision was
instead of ‘may be given’, ‘shall be given’, the proviso could have
become mandatory. Consciously such mandatory language is not
used in the proviso. However, if the mandatory language in the
nature of ‘shall be given’ was used, then the only way the States
could have recognised the inservice candidates entitlement to
postgraduate courses would have been by way of granting
incentive as provided therein. Since the language does not
indicate that such course is mandatory and is only an enabling
provision, the State Rules/Act or directions issued by the
43
respective State Governments providing for reservation for in
service candidates in postgraduate degree courses is not
incompatible with the proviso to clause IV of Regulation 9. It is
submitted that unless there is express or implied prohibition of
reservation of seats, contained in the MCI Regulations, for in
service candidates in admission to postgraduate degree courses,
no incompatibility between the two arises.
5. Learned counsel appearing on behalf of the Medical Council
of India has made the following submissions against the power of
the States to make reservation of seats for inservice candidates
in Postgraduate Degree Courses and also in favour of validity of
the Regulation 9 of the MCI Regulations, 2000:
5.1. MCI has framed a comprehensive scheme for admission to
Postgraduate Medicine (Degree and Diploma) Courses in the
form of Regulation 9 of the MCI Regulations, 2000. The scheme
envisaged under Regulation 9 for admission to Postgraduate
Medicine (Degree and Diploma) is to be read as a whole. The
Regulation 9 when read as a whole show that it is inservice
doctors, i.e. doctors who have served in remote and difficult or
rural areas notified by the State Government, are given the
44
maximum benefit under the said scheme as compared to other
candidates. The benefit given to the inservice doctors is in the
form of; (1) reservation in Postgraduate diploma courses; and (2)
grant of incentive marks in terms of Regulation 9(IV) of MCI
Regulations, 2000. The option of availing incentive marks for
Postgraduate degree courses or seeking reservation in post
graduate degree courses is only available to inservice candidates
and the said option is not available to a nonservice candidate;
5.2. Indian Medical Council Act, 1956 and the Regulation
framed thereunder are traceable to Entry 66 of List I of Schedule
VII of the Constitution of India and Entry 66 of List 1 provides for
“Coordination and Determination of Standards” in the field of
higher and technical education or research. The standard,
criteria, manner and basis of granting admission in medicine
courses fall within the exclusive domain of the Medical Council of
India. Regulation 9(IV) prescribes the criteria for determination of
merit on the basis of which admissions to be granted to students
in postgraduate degree courses;
5.3. The power of the State under Entry 25 of List III to make
laws is subject to Entry 66 of List I of Schedule VII of the
45
Constitution. The primacy will have to be given to Legislation
framed by the Parliament or delegated legislation made in
exercise of powers conferred under such Legislation on matters
under Entry 25 of List III, over the Legislation/delegated
legislation framed by the State Legislature or authority
designated by the State Legislature;
5.4. As held by this Court in the case of Preeti Srivastava v.
12
State of M.P . under the Indian Medical Council Act, 1956, the
Medical Council of India is empowered to prescribe, inter alia,
standards of postgraduate medication education. It is further
observed that in exercise of its powers under Section 20 r/w
Section 33 of the Indian Medical Council Act, the MCI has framed
the Regulations which govern postgraduate medical education.
These Regulations therefore, are binding and the States cannot in
the exercise of power under Entry 25 of the List III, make rules
and regulations which are in conflict with or adversely impinge
upon the Regulations framed by the Medical Council of India for
postgraduate medical education. Heavy reliance is placed upon
para 52 and 53 of the said decision;
12 (1999) 7 SCC 120
46
5.5. That in the case of Modern Dental College and Research
Centre (Supra) this Court has also further observed that exercise
of powers by the State Legislature on any matter under Entry 25
of List III is circumscribed by the power under Entry 66 of List I
and the latter shall have primacy over the former. Reliance is
placed upon paras 102 and 104 of the said decision.
6.0. Now, so far as submission on behalf of the respective
petitioners on conversion of seats of Postgraduate Diploma
Course into seats of Postgraduate Degree pursuant to the
Notification dated 12.07.2018, it is vehemently submitted that as
such when the reference was made to a Larger Bench and even in
the original writ petition conversion of seats was not the issue
much less any basis for the said reference. It is submitted that
therefore, the issue of conversion of seats is a separate and
distinct issue and a separate cause of action, which is sought to
be clubbed with the present petition.
It is submitted that however as submissions have been
made on this aspect, it is submitted as under:
47
A. Conversion of seats from postgraduate diploma to degree is
optional and not mandatory. No College/Institution was
compelled or forced to opt for such conversion;
B. The provisions for conversion was introduced as over the
past years the students, medical colleges, State Government
and other stake holders have complained about the scarcity
of seats in the postgraduate degree courses which is the
most preferred choice of students;
C. To give an option to the States where the requirement of
doctors postgraduate degrees is more to avail the benefit of
conversion;
D. This provision was not meant to take away or do away with
the inservice reservation in postgraduate diploma courses.
If any State/Government Medical College wants more
diploma holders then it can retain those seats.
6.1. Now so far as submission on behalf of the respective
petitioners and the respective States that on conversion of post
graduate diploma seats into degree seats inservice candidates
are deprived of reservation in diploma courses, it is submitted
that as such Government Medical Colleges and other Medical
Institutions in the State of Tamil Nadu and other States have
consciously and unconditionally chosen to opt for conversion of
seats. In fact, this conversion of seats helps the inservice doctors
48
also as there are a greater number of seats in postgraduate
degree courses for which they can compete;
6.2. It is submitted that any reservation for inservice candidates
in postgraduate degree course at this stage will give unfair
advantage to inservice candidates over other candidates by
increasing their seat share in the said degree courses;
6.3. That the Government Medical Colleges/Private Medical
Colleges/ Deemed Universities are keen to secure permission
from Government of India for post graduate degree courses only,
since post graduate diploma courses is not the preferred choice of
the students. In any case, the data in the table given below
indicates that not all post graduate diploma seats across the
Country have not been converted to postgraduate degree course.
Many States have not opted for conversion of seats in their
medical colleges;
6.4. It is important to take into consideration that if 30%
reservation of seats in postgraduate degree courses is reserved
for inservice candidates in State quota, then a major chunk of
these seats, particularly seats in clinical subjects will be reserved
for inservice candidates only;
49
6.5. Now so far as submission on behalf of inservice candidates
that diploma seats for which reservation of inservice candidates
is permitted under Regulation 9(VIII) of MCI Regulations, upon
conversion into postgraduate degree seats, will continue to be
reserved for inservice candidates, it is submitted that the said
contention is devoid of merit and liable to be rejected since once
the seats in postgraduate diploma courses are converted to post
graduate degree courses then the nature and colour of the said
seat itself changes and it will be governed by Regulation 9 (IV)
and not Regulation 9(VIII) of the MCI Regulations. It is submitted
that grievance of the petitioners, if any, as a result of conversion
is because of the action of their State Governments in applying
for conversion of seats;
6.6. There is clear cut distinction in postgraduate diploma seats
and postgraduate degree courses and both serve different
purposes. The conversion of postgraduate diploma seats into
postgraduate degree courses is only an enabling provision which
gives discretion to the State Government/Medical Institutes to
opt for such conversion. It is not in any manner intended to do
50
away with the reservation in postgraduate diploma courses
under Regulation 9(VIII) of the MCI Regulations, 2000;
6.7. Regulation 9(IV) of the MCI Regulations, 2000 serve a large
public interest and it is an objective way of determining merit.
Regulation 9(IV) of the Regulations based on the objective
consideration, rational, reasonableness and balances the
competing interest of inservice candidates and nonservice
(direct) candidates as well as the interest of State to have doctors
serving in remote and difficult or rural areas of the State and at
the same time also ensuring that there is no compromise of
merit;
6.8. It is submitted that therefore, as there is already provision
for inservice candidates in Regulation 9 framed by the MCI
framed in exercise of powers under Section 20 r/w 33 of the India
Medical Council Act 1956 and the MCI Act has been enacted by
the Central Government under Entry 66 of list I and even
otherwise Entry 25 of List III empowers the Union also to enact
the law and therefore, also in view of MCI Regulations, 2000
which were found place before the Parliament and ascent of the
President, State cannot have the power on the same subject
51
under Entry 25 of List III and any law by the State shall be
repugnant to Central Act.
7.0. Shri Aman Lekhi, learned ASG appearing on behalf of the
Union of India has made the following submissions:
7.1. That the decision of this Court in the case of Dinesh Singh
Chauhan (supra) is a correct law. That the said decision is
consistent with the Article 246 r/w Entry No. 66 of List I and
th
Entry 25 of List III of 7 schedule of the Constitution; it would
not be correct to say, as mentioned in the Referral Order, that the
Legislative Entries were not considered in judgment of Dinesh
Singh Chauhan (supra) . As such in para 24, this Court has
specifically approved the judgment in the case of Preeti Srivastav
(supra) and has specifically referred Entry 66 of List I and has
clearly held that Central Legislation and Regulations must
prevail; that the judgment in the case of Dinesh Singh
does not digress from the law laid down by the
Chauhan( supra)
Constitution Benches.
Apart from the fact that the judgment in the case of R.
13
Chitralekha vs. State of Mysore , specifically negative the
13 (1964) 6 SCR 368
52
contentions raised by the petitioner, it is to be noted that the said
decision was prior to deletion of entry 11 List II and insertion of
th
Entry 25 List III in the 7 Schedule of the Constitution;
7.2. It is submitted that at the time when the judgment in the
case of R. Chitralekha (supra) was passed there was no Entry 25
nd
in List III (which came after the 42 Amendment) and the two
Entries which were relevant for controversy in the said case were
Entry 66 of List I which has not been amended till now, and
Entry 11 of List II. The State therefore, had the power under
Article 246(3) read with Entry 11 to legislate in respect of
‘education’ subject to Entry 66 of List I. The expression
‘education’ was held in Gujarat University v. Krishna Ranganath
14
Mudholkar (para 23) to be wide important and include all
matters related to imparting and regulating education.
Admittedly, there was no Central Enactment or regulation framed
under Entry 66 of List I which was to be considered by this
Hon’ble Court in the case of R. Chitralekha (supra) ;
7.3. That prior to the deletion of entry 11 of List II and insertion
of Entry 25 of List III, the Union Parliament could not deal with
the issue of imparting and regulating of the education which
14 AIR 1963 SC 703 = 1963 Supp (1) SCR 112
53
vested exclusively in the State Legislature. The power of State
Legislature relating to ‘education’ was taken away only to the
extent Entry 11 of List II was made subject to relevant entries in
the List I including Entry 66 and Entry 25 of List III at the
relevant time dealt only with ‘vocational and technical training of
labour;
7.4. In facts of R. Chitralekha (supra) the Court found that the
exercise of power impugned in the said case of admitting
students on the basis of higher or different qualification than
those prescribed by the University was not illegal as the
procedure adopted only contained a criteria to limit the
admission of students into colleges from amongst those who
secured the minimum qualifying marks prescribed. In other
words, the State Government did not transgress into any
forbidden are in the said case;
7.5. The instant case however deals with the situation where
Entry 11 is shifted from List II to List III as Entry 25, which Entry
enlarges the field (now concurrently vested with the State
Legislature and Union Parliament) beyond ‘Universities’ to
54
‘technical education’ and ‘medical education’ also while retaining
‘vocational and technical training of labour’ in the original Entry;
7.6. The consequence of this change is that the State Legislature
does not have exclusive power over imparting and regulating of
education. And where the Centre has legislated on this subject,
the State Legislature would be denuded of its power subject of
course to Article 254 of the Constitution (which has not been
invoked). In the absence of such legislative power even executive
power would not be available to the State Government;
7.7. Section 10 D has been inserted into Medical Council of
India Act (on 24.5.2016) prescribing a uniform entrance
examination ‘in such manner as may be prescribed.’ Section 10 D
has to be read with Section 33 (mb) of the Act empowering the
MCI to make regulation concerning the manner of conducting
uniform entrance examination both at the undergraduate and
postgraduate level. In exercise of the power so conferred Post
graduate Regulations were amended in 2018;
7.8. Regulation 9(IV) deals with “All India merit list as well as
Statewise merit list” on the basis of marks obtained in NEET for
admission to “postgraduate courses (both degree and diploma).
55
The proviso to Regulation 9(IV) stipulates that “in determining
the merit of the candidates” weightage in marks would be given
as provided. This is not a substantive provision as argued and is
clearly a proviso to Regulation 9 (IV);
7.9. Unlike Regulation 9(IV) which deals with both postgraduate
degree and diploma courses, Regulation 9(VIII) deals only with
“Postgraduate Diploma Courses” and provides for reservation in
the manner stipulated therein. Regulation 9(VIII) is therefore, a
special provision which will apply only to the subject within its
scope clearly indicating that the reservation is limited to diploma
courses only. Regulation 9 dealing both with ‘determination and
coordination of standards’ and ‘regulation’ of education has
correctly been described as a complete code. Not only can there
be no interference with the standard prescribed but there also
being regulation of the manner in which standards are to apply
by the MCI under a Central enactment, the State Government
cannot interfere with or modify the same;
7.10. In view of the specific provision for inservice candidates in
the MCI Regulations, 2000 framed by the Medical Council of
India, more particularly, Regulation 9(IV) r/w 9(VII)/(VIII) and as
56
Regulation 9 is held to be a complete code and even considering
Entry 25 of List III, the State would not have any power to
legislate anything contrary to MCI Regulations, 2000, more
particularly Regulation 9 and cannot have any power to make
provision for reservation for inservice candidates in post
graduate degree course. Any law framed and/or to be framed,
therefore, would be repugnant to MCI Regulations, 2000 framed
by the Medical Council of India, framed in exercise of powers
under Section 20 r/w Section 33 of the MCI Act, 1956.
8.0. Learned counsel appearing on behalf of the private
respondents in the case of State of West Bengal opposing the
reservation for inservice candidates has made the following
submissions:
8.1. There is no legislation in the State of West Bengal providing
for reservation for inservice candidates. The office memorandum
dated 18.4.2013, is only an executive instruction, which has
been relied upon by the State Government did not find any
mention in the original records of the Government when perused
by the Division Bench of the High Court while examining the
57
reasons recorded by the State Government for grant of such
reservation;
8.2. Further, merit has become casualty by such reservation in
the State of West Bengal. The country definitely wants more
doctors but moreover it needs qualified specialists. Reservation at
higher level of professional courses such as medicine should be
minimal. Learned counsel has taken us to submission with
respect to allotment of PG seats and corresponding rank of open
category and inservice candidates from the written submissions.
It is submitted that therefore, merit has become casualty by such
reservation in the State; that the NEETPG Notification for
admission to PG Medical Courses throughout the country was
published on 07.09.2018. NEETPG 2019 result was published
on 31.1.2019. As per the MCI Regulations, State quota
counselling to commence from 25.3.2019. Before that open
category candidates made a representation to the State as well as
WBUHS (University) on 5.3.2019 citing Regulation 9(IV) of the
MCI Regulations, 2000 as well as judgment of this Court in the
case of Dinesh Singh Chauhan (supra) and the order of the
Constitution Bench of this Court in the case of Tamil Nadu
58
15
Medical Officers Association v. Union of India requesting
Government not to reserve any seats for inservice candidates.
That the said representation has neither been annexed nor referred
to in the special leave petition by the State . That the counselling
notice by the university was dated 12.03.2019, in which, there was no
mention of any reservation for inservice candidates. There was
specific mention for SC/ST/OBC/PH reservation. Result of round
1 counselling was published on 3.4.2019. Again, a legal notice
and the representation was made on 18.4.2019 to make
admissions in accordance with MCI Regulations and decision of
this Court in the case of Dinesh Singh Chauhan (supra).
nd
Provisional List for 2 round was published on 20.4.2019
without considering the representation. Immediately on
23.4.2019 writ petition was filed. On 26.4.2019 learned Single
Judge granted stay on further counselling. On 1.5.2019 the
learned Single Judge modified the interim order that counselling
may take place but no admission. That thereafter, the interim
order passed by the learned Single Judge was modified by the
Division Bench and direction was issued to complete admission
in view of cutoff date of 30.05.2019 but directed that all
15 (2018) 17 SCC 426
59
admissions shall be subject to final outcome of writ petition; all
admitted students to file an undertaking; no equities to be
claimed. SLP was preferred against the interim order passed by
the Division Bench dated 30.05.2019 before this Court. In that
MCI supported and submitted that there cannot be any
reservation of seats for inservice candidates. This Court disposed
of the SLP with a request to the learned Single Judge to hear the
case on day to day basis and decide it expeditiously. That by
judgment and order dated 19.08.2019 the learned Single Judge
allowed the writ petitions and quashed the reservation of seats in
PGDegree Courses for inservice candidates. Consequently, the
admission of inservice candidates made against 40% reserved
seats came to be cancelled and directed preparation of fresh
combined list. That thereafter, impugned judgment and order
came to be passed by the Division Bench. It is submitted that
therefore, the general category candidates made their grievance
against the reservation for inservice candidates from the very
beginning and well in advance and therefore, there is no delay on
their part and therefore, the direction issued by the Division
Bench be directed to be complied with. As directed by the learned
60
Single Judge and thereafter confirmed by the Division Bench, in
service candidates now cannot be permitted to claim equity;
8.3. That inservice candidates are not meritorious and by such
reservation the meritorious general category candidates and non
service candidates who have secured more marks in NEET and
competitive examination will have to suffer; (a) Medical Council of
India has been constituted as an expert body to control the
minimum standards of medical education and to regular their
observance; (b) Compliance with regulations framed by MCI are
mandatory inasmuch as enforcement of these regulations are
directly relatable to quality of medical professionals; (c)
Regulations framed by the MCI are with prior approval of the
Central Government in terms of Section 33 of the Indian Medical
Council Act, 1956 and are binding in nature; (d) Aforesaid
binding nature is apparent from a perusal of constitutional
scheme for enactment of the Indian Medical Council Act, 1956.
Entry 66 of List I of the seventh schedule provides for ‘co
ordination and determination of standards in institutions for
higher education or research and scientific and technical
institution’. Entry 25 of List III in the seventh schedule of the
61
Constitution provides for ‘Education including technical
education, medical education and universities, subject to the
provisions of entries 63,64,65 and 66 of List I’; It emerges from a
conjoint reading of Entry 66 of List I and Entry 25 of List III that
because the Parliament occupies the field earmarked for it under
Entry 66 of List I or its concurrent powers as per Entry 25 in the
concurrent list, the question of admission of students to any
medical course would mandatorily have to be in compliance of
the said law framed with reference to Entry 66 of List I which is
the MCI Act, 1956;
8.4. As per catena of decisions, norms of admission including
reservation directly affect the standards of education and
therefore, the State cannot frame a law breaching the standards
laid down by the MCI. Hence reliance is placed on the following
decisions:
(1) Preeti Srivastava (supra);
16
(2)
Narayan Sharma (Dr) vs. Pankaj Kr. Lekhar (Dr) ;
(3). ;
Modern Dental College and Research Centre (supra)
(4). Dinesh Singh Chauhan (supra); and
16 (2000) 1 SCC 44
62
(5). Tamil Nadu Medical Officers Association vs. Union of
India reported in (2018) 17 SCC 426.
8.5. That selection to Postgraduate Courses stands completely
covered by Regulation 9 of the MCI Regulations, 2000. In support
of the above, followings submissions are made:
I. MCI Regulations, 2000 were notified after prior approval
from Central Government under Section 33 of the MCI Act.
The objective of the regulations is to produce competent
specialists and/ or Medical teachers;
II. Regulation 9 prescribes for manner and mode of selection of
Postgraduate students which affirms the primacy of merit
in selection of candidates to Postgraduate Courses by way
of common entrance examination, i.e. NEET;
III. Regulation 9 further makes a distinction in manner and
mode of selection for candidates to ‘Postgraduate Diploma’
courses and ‘Postgraduate Degree’ courses;
IV. Manner of determination of academic merit is prescribed
under Regulation 9(4);
V. Proviso to Regulation 9(4) provides as under:
“Provided that that in determining the merit of candidates
who are in service of Government/ Public Authority,
63
weightage in the marks may be given by the Government /
Competent Authority, as an incentive up to 10% of the marks
obtained for each year of service in remote and / or difficult
areas or rural areas up to maximum of 30% of the marks
obtained in National EligibilitycumEntrance Test. The
remote and / or difficult areas or rural areas shall be as
notified by State Government /Competent Authority from
time to time.”
VI. It emerges from a perusal of the above regulation that (i) PG
Degree is distinct and different from a PG diploma which is clear
from perusal of Regulation 9(VIII) wherein 50% seats are reserved
for aforesaid Government medical officers who fulfil the
requirements of service in notified areas (ii) In matters of
selection to PG Courses, interse merit is the determinative
factor, (iii) In determination of merit, the State Government may,
with a view to incentivize such service, give weightage in the
marks for service in ‘remote’ or ‘difficult’ areas and (iv), the
remote and difficult areas shall be notified by State Government
from time to time;
VII. There is no provision for ‘reservation’ of seats for such
candidates who may have rendered service in remote or difficult
areas. At best, and strictly as a policy measure, the State
Government may provide weightage as incentive and nothing
more;
64
VIII. Therefore, Regulation 9 as per its letter and purport clearly
provides only for weightage, and not reservation. The same has
been so done, in order to incentivize the candidates to render
service in ‘remote’ and ‘difficult’ areas and at the same time,
ensure that requirement of ‘interse merit’ is not diluted by
introduction of a scheme of reservation;
8.6. That Regulation 9 is a ‘complete code’ governing selection to
PG Courses. In support of the above, following submissions are
made:
A. There is no provision in the Indian Medical Council Act,
1956 and MCI Regulations, 2000 stipulating reservation for
inservice candidates against the 30% seats in “Post
graduate Degree Course’;
B. However, the provision is only to give weightage of marks to
inservice candidates who had worked for specified period in
notified remote, difficult or backward areas of the State;
C. The State Governments in view of the fact that MCI
Regulations have statutory primacy in matters of medical
education, could not have framed any statutory Rules or
notify a contrary provision by an executive fiat;
65
D. After having examined the entire Regulation 9 as a whole, in
the case of Sudhir N (supra), it is held that Regulation 9 is a
complete code in relation to selection to Postgraduate
course.
8.7. That when Regulations prescribe for selection in a certain
manner, it must be done in that manner alone and not otherwise.
The MCI Regulations governed the field of admission to PG
Courses and Regulation 9 of the MCI Regulations, 2000 is a self
contained code and Regulation 9 does not provide for anything
other than weightage, and that too, upon identification of remote
& difficult areas by the State Government, the State could not
have provided for any reservation for inservice candidates
contrary to the Central Act and the MCI Regulations, 2000;
8.8. Thus, the State is not competent to separately reserve a
specific number of seats for candidates who have served in
notified areas. Such candidates who had rendered services in
notified rural and difficult areas are entitled to weightage in
terms of proviso to Regulation 9(IV);
8.9. Regulations have been framed with a conscious decision to
not provide any reservation, as the same shall invariably have an
66
adverse effect on the interse merit and many candidates merely
by virtue of being in–service candidates may steal a march over
candidates higher in merit;
8.10.That the provisions regarding giving weightage to the in
service candidates by way of incentive marks has been
introduced in larger public interest and the same is just, rational
and proper and there was no occasion to enlarge the scope and
provide for reservation, when the regulation itself does not
contemplate any such reservation;
8.11.The State is obliged to adopt a procedure as stipulated by
the Central Act and Regulation framed thereunder;
8.12.That when there is categorical expression of weightage, it
would automatically exclude reservation in cases of admission to
PG Degree courses;
8.13.Regulation 9 even if read liberally does not provide for
reservation for inservice candidates, but only for giving a
weightage in the form of incentive marks as specified to the class
of inservice candidates (who have served in notified remote and
difficult areas in the State);
67
8.14.Any reservation at the stage of Postgraduate Medical
education will necessarily result in dilution of minimum
standards and merit and will therefore, be contrary to the
objective of the regulation itself;
8.15.Providing any reservation despite the same not being
provided for in the Regulations would be akin to redrafting the
Regulations itself. After due deliberations and keeping in mind
the past experience, Medical Council of India has framed
Regulations inter alia providing for giving incentive marks to in
service candidates who have worked in notified remote and
difficult areas in the State to determine their merit. The
Regulation, as has been brought into force, after successive
amendments, and providing any reservation contrary to the
regulation would undo the regulation itself.
9. In the case of Dinesh Singh Chauhan (supra) , the very
Regulation 9(IV) and 9(VII) fell for consideration. In the case of
Dinesh Singh Chauhan (supra), after considering the decision of
this Court in the case of Preeti Srivastava (supra) , in para 24, it is
held as under:
“24. By now, it is well established that Regulation 9 is a
selfcontained code regarding the procedure to be followed
68
for admissions to medical courses. It is also well established
that the State has no authority to enact any law much less
by executive instructions that may undermine the procedure
for admission to postgraduate medical courses enunciated by
the Central legislation and regulations framed thereunder,
being a subject falling within Schedule VII List I Entry 66 of
the Constitution (see Preeti Srivastava v. State of M.P. [1999)
7 SCC 120]). The procedure for selection of candidates for
the postgraduate degree courses is one such area on which
the Central legislation and regulations must prevail.”
(emphasis supplied)
9.1 Thereafter Regulation 9 has been considered in detail, the
relevant paras are paras 26, 27, 29, 30, 31, 32, 33, 35, 39, 47,
which read as under:
“26. From the plain language of this proviso, it is amply
clear that it does not envisage reservation for inservice
candidates in respect of postgraduate “degree” courses with
which we are presently concerned. This proviso postulates
giving weightage of marks to “specified inservice candidates”
who have worked in notified remote and/or difficult areas in
the State—both for postgraduate “degree” courses as also for
postgraduate “diploma” courses. Further, the weightage of
marks so allotted is required to be reckoned while preparing
the merit list of candidates.
27. Thus understood, the Central enactment and the
regulations framed thereunder do not provide for reservation
for inservice candidates in postgraduate “degree” courses.
As there is no express provision prohibiting reservation to in
service candidates in respect of admission to postgraduate
“degree” courses, it was contended that providing for such
reservation by the State Government is not impermissible in
law. Further, there are precedents of this Court to suggest
that such arrangement is permissible as a separate channel
of admission for inservice candidates. This argument does
not commend to us. In the first place, the decisions pressed
into service have considered the provisions regarding
admission process governed by the regulations in force at the
relevant time. The admission process in the present case is
governed by the regulations which have come into force from
69
the academic year 20132014. This Regulation is a self
contained code. There is nothing in this Regulation to even
remotely indicate that a separate channel for admission to
inservice candidates must be provided, at least in respect of
postgraduate “degree” courses. In contradistinction, however,
50% seats are earmarked for the postgraduate “diploma”
courses for inservice candidates, as is discernible from
clause (VII). If the regulation intended a similar separate
channel for inservice candidates even in respect of
postgraduate “degree” courses, that position would have
been made clear in Regulation 9 itself. In absence thereof, it
must be presumed that a separate channel for inservice
candidates is not permissible for admission to postgraduate
“degree” courses. Thus, the State Government, in law, had
no authority to issue a Government Order such as dated 28
22014, to provide to the contrary. Hence, the High Court
was fully justified in setting aside the said government order
being contrary to the mandate of Regulation 9 of the 2000
Regulations, as applicable from the academic year 2013
2014.
29. In the present case, we have held that providing 30%
reservation to inservice candidates in postgraduate “degree”
courses is not permissible. It does not, however, follow that
giving weightage or incentive marks to inservice candidates
for postgraduate “degree” courses entails in excessive or
substantial departure from the rule of merit and equality.
For, Regulation 9 recognises the principle of giving weightage
to inservice candidates while determining their merit. In
that sense, incentive marks given to inservice candidates is
in recognition of their service reckoned in remote and
difficult areas of the State, which marks are to be added to
the marks obtained by them in NEET. Weightage or incentive
marks specified in Regulation 9 are thus linked to the marks
obtained by the inservice candidate in NEET and reckon the
commensurate experience and services rendered by them in
notified remote/difficult areas of the State. That is a
legitimate and rational basis to encourage the medical
graduates/doctors to offer their services and expertise in
remote or difficult areas of the State for some time.
Indisputably, there is a wide gap between the demand for
basic health care and commensurate medical facilities,
because of the inertia amongst the young doctors to go to
such areas. Thus, giving specified incentive marks (to eligible
inservice candidates) is permissible differentiation whilst
determining their merit. It is an objective method of
determining their merit.
70
Coming to the next decision pressed into service in
30.
State of M.P. v. Gopal D. Tirthani (2003) 7 SCC 83, it was a
case of conducting separate entrance test for inservice
candidates. That was frowned upon by this Court. The
Court, however, suggested modality of preparing two
separate merit list for the two categories and merit inter se of
the successful candidates to be assessed separately in the
two respective categories. The Court had examined the
question as to whether weightage can be given to doctors for
having rendered specified number of years of service in
rural/tribal areas to determine the inter se merit. The Court
analysed four earlier decisions of this Court; to wit, Dinesh
Kumar v. Motilal Nehru Medical College (1986) 3 SCC 727,
Snehelata Patnaik v. State of Orissa (1992) 2 SCC 26,
Narayan Sharma v. Pankaj Kr. Lehkar (2000) 1 SCC 44 and
State of U.P. v. Pradip Tandon (1975) 1 SCC 267. The Court
in para 33 observed thus: ( Tirthani case (2003) 7 SCC 83,
SCC p. 106)
“ 33. … The case at hand presents an entirely different
scenario. Firstly, it is a case of postgraduation within the
State and not an allIndia quota. Secondly, it is not a case
of reservation, but one of only assigning weightage for
service rendered in rural/tribal areas. Thirdly, on the view
of the law we have taken hereinabove, the assigning of
weightage for service rendered in rural/tribal areas does
not at all affect in any manner the candidates in open
category. The weightage would have the effect of altering
the order of merit only as amongst the candidates
entering through the exclusive channel of admissions
meant for inservice candidates within the overall service
quota. The statistics set out in the earlier part of the
judgment provide ample justification for such weightage
being assigned. We find merit and much substance in the
submission of the learned Advocate General for the State of
Madhya Pradesh that Assistant Surgeons (i.e. medical
graduates entering the State services) are not
temperamentally inclined to go to and live in villages so as
to make available their services to the rural population;
they have a temptation for staying in cities on account of
better conditions, better facilities and better quality of life
available not only to them but also to their family members
as also better educational facilities in elite schools which
are to be found only in cities. Inservice doctors being told
in advance and knowing that by rendering service in
rural/tribal areas they can capture better prospects of
earning higher professional qualifications, and
71
consequently eligibility
for promotion, acts as a
motivating factor and provides incentive to young inservice
doctors to opt for service in rural/tribal areas. In the setup
of health services in the State of Madhya Pradesh and the
geographical distribution of population, no fault can be
found with the principle of assigning weightage to the
service rendered in rural/tribal areas while finalising the
merit list of successful inservice candidates for admission
to PG courses of studies . Had it been a reservation,
considerations would have differed. There is no specific
challenge to the quantum of weightage and in the absence
of any material being available on record we cannot find
fault with the rule of weightage as framed. We hasten to
add that while recasting and reframing the rules, the
State Government shall take care to see that the
weightage assigned is reasonable and is worked out on a
rational basis.”
31. However, in the present case, the Medical Council of
India itself has framed a regulation predicating one merit list
by adding the weightage of marks assigned to inservice
candidates for determining their merit in NEET.
The imperative of giving some incentive marks to
32.
doctors working in the State and more particularly serving in
notified remote or difficult areas over a period of time need
not be underscored. For, the concentration of doctors is in
urban areas and the rural areas are neglected. Large number
of posts in public healthcare units in the State are lying
vacant and unfilled in spite of sincere effort of the State
Government. This problem is faced by all States across India.
This Court in Snehelata case (1992) 2 SCC 26 had left it to
the authorities to evolve norms regarding giving incentive
marks to the inservice candidates. The Medical Council of
India is an expert body. Its assessment about the method of
determining merit of the competing candidates must be
accepted as final [ State of Kerala v. T.P. Roshana (1979) 1
SCC 572 (SCC para 16); also see Medical Council of India v.
State of Karnataka (1998) 6 SCC 131]. After due
deliberations and keeping in mind the past experience,
Medical Council of India has framed regulations, inter alia,
providing for giving incentive marks to inservice candidates
who have worked in notified remote and difficult areas in the
State to determine their merit. The Regulation, as has been
brought into force, after successive amendments, is an
attempt to undo the mischief.
72
As aforesaid, the real effect of Regulation 9 is to
33.
assign specified marks commensurate with the length of
service rendered by the candidate in notified remote and
difficult areas in the State linked to the marks obtained in
NEET. That is a procedure prescribed in the Regulation for
determining merit of the candidates for admission to the
postgraduate “degree” courses for a single State. This serves
a dual purpose. Firstly, the fresh qualified doctors will be
attracted to opt for rural service, as later they would stand a
good chance to get admission to postgraduate “degree”
courses of their choice. Secondly, the rural healthcare units
run by the public authority would be benefited by doctors
willing to work in notified rural or difficult areas in the State.
In our view, a Regulation such as this subserves larger
public interest. Our view is reinforced from the dictum in
Snehelata Patnaik case (1992) 2 SCC 26. The threeJudge
Bench by a speaking order opined that giving incentive
marks to inservice candidates is inexorable. It is apposite to
refer to the dictum in the said decision which reads thus:
(SCC pp. 2627, paras 12)
“ 1. We have already dismissed the writ petition and
special leave petitions by our order dated 5121991. We
would, however, like to make a suggestion to the
authorities for their consideration that some preference
might be given to inservice candidates who have done
five years of rural service. In the first place, it is possible
that the facilities for keeping up with the latest medical
literature might not be available to such inservice
candidates and the nature of their work makes it difficult
for them to acquire knowledge about very recent medical
research which the candidates who have come after
freshly passing their graduation examination might have.
Moreover, it might act as an incentive to doctors who had
done their graduation to do rural service for some time.
Keeping in mind the fact that the rural areas had suffered
grievously for nonavailability of qualified doctors giving
such incentive would be quite in order . The learned
counsel for the respondents has, however, drawn our
attention to the decision of a Division Bench of two
learned Judges of this Court in Dinesh Kumar v. Motilal
Nehru Medical College (1986) 3 SCC 727. It has been
observed there that merely by offering a weightage of 15%
to a doctor for three years’ rural service would not bring
about a migration of doctors from the urban to rural
areas. They observed that if you want to produce doctors
73
who are MD or MS, particularly surgeons, who are going
to operate upon human beings, it is of utmost importance
that the selection should be based on merit. The learned
Judges have gone on to observe that no weightage should
be given to a candidate for rural service rendered by him
so far as admissions to postgraduate courses are
concerned (see Dinesh Kumar case (1986) 3 SCC 727,
SCC para 12 at p. 741).
2. In our opinion, this observation certainly does not
constitute the ratio of the decision . The decision is in no
way dependent upon these observations. Moreover, those
observations are in connection with allIndia selection
and do not have equal force when applied to selection from
a single State. These observations, however, suggest that
the weightage to be given must be the bare minimum
required to meet the situation. In these circumstances, we
are of the view that the authorities might well consider
giving weightage up to a maximum of 5% of marks in
favour of inservice candidates who have done rural
service for five years or more. The actual percentage would
certainly have to be left to the authorities . We also clarify
that these suggestions do not in any way confer any legal
right on inservice students who have done rural service
nor do the suggestions have any application to the
selection of the students up to the end of this year.”
As aforesaid, the Regulations have been framed by an
35.
expert body based on past experience and including the
necessity to reckon the services and experience gained by the
inservice candidates in notified remote and difficult areas in
the State. The proviso prescribes the measure for giving
incentive marks to inservice candidates who have worked in
notified remote and difficult areas in the State. That can be
termed as a qualitative factor for determining their merit.
Even the quantitative factor to reckon merit of the eligible in
service candidates is spelt out in the proviso. It envisages
giving of incentive marks @ 10% of the marks obtained for
each year of service in remote and/or difficult areas up to
30% of the marks obtained in NEET. It is an objective
method of linking the incentive marks to the marks obtained
in NEET by the candidate. To illustrate, if an inservice
candidate who has worked in a notified remote and/or
difficult area in the State for at least one year and has
obtained 150 marks out of 200 marks in NEET, he or she
would get 15 additional marks; and if the candidate has
worked for two years, the candidate would get another 15
74
marks. Similarly, if the candidate has worked for three years
and more, the candidate would get a further 15 marks in
addition to the marks secured in NEET. 15 marks out of 200
marks in that sense would work out to a weightage of 7.5%
only, for having served in notified remote and/or difficult
areas in the State for one year. Had it been a case of giving
10% marks en bloc of the total marks irrespective of the
marks obtained by the eligible inservice candidates in
NEET, it would have been a different matter. Accordingly,
some weightage marks given to eligible inservice candidate
linked to performance in NEET and also the length of service
in remote and/or difficult areas in the State by no standard
can be said to be excessive, unreasonable or irrational. This
provision has been brought into force in larger public
interest and not merely to provide institutional preference or
for that matter to create separate channel for the inservice
candidate, much less reservation. It is unfathomable as to
how such a provision can be said to be unreasonable or
irrational.
39. Reverting to the recent decision of this Court in
Sudhir N. (2015) 6 SCC 685, the twoJudge Bench was
dealing with the question of selection of inservice medical
officers for postgraduate medical education under Section
5(4) of the Kerala Medical Officers Admission to Postgraduate
Courses under the Service Quota Act, 2008. The said
provision has been extracted in para 5 of the reported
decision. It deals with the finalisation of select list by the
Postgraduate Course Select Committee strictly on the basis
of seniority in service of the medical officers and following
such other criteria as may be prescribed. Dealing with that
challenge the Court noticed that Regulation 9 is a complete
code by itself and then proceeded to answer the question
whether the State was competent to enact law on the matter
of admission on the basis of inter se seniority of candidates.
In that context, the Court noted that the basis of selection
must be strictly as per norms specified in the MCI
Regulations. Any law with regard to that will be beyond
legislative competence of the State Legislature. The Court
noted that weightage for inservice candidates is made
permissible by Regulation 9. That is the limited departure
from the merit list criteria permitted by the Regulation itself.
Neither in Sudhir N. (2015) 6 SCC 685 nor Tirtha (2003) 7
SCC 83 the Court had the occasion to deal with the question
regarding challenge to the proviso to clause (IV) of Regulation
9.
75
47. We must hold that the High Court was justified in
quashing the stated government order providing for
reservation to inservice candidates, being violative of
Regulation 9 as in force. However, we modify the operative
direction given by the High Court and instead direct that
admission process for academic year 20162017 onwards to
the postgraduate degree course in the State should proceed
as per Regulation 9 including by giving incentive marks to
eligible inservice candidates in terms of proviso to clause
(IV) of Regulation 9 [equivalent to third proviso to Regulation
9(2) of the old Regulations reproduced in the interim order
dated 1252016]. We, accordingly, mould the operative
order of the High Court to bring it in conformity with the
direction contained in the interim order dated 1252016 but
to be made applicable to academic year 20162017 onwards
on the basis of Regulation 9 as in force. We are conscious of
the fact that this arrangement is likely to affect some of the
direct candidates, if not a large number of candidates whose
applications were already processed by the competent
authority for postgraduate degree course concerned for
academic year 20162017. However, their admissions cannot
be validated in breach of or disregarding the mandate of
Regulation 9, as in force. The appeals against the judgment
of the High Court of Judicature at Allahabad dated 742016
are disposed of accordingly.”
(emphasis supplied)
9.2. The present batch of cases came up for hearing before
another Bench of three Judges. The Bench was of the opinion
that the present batch of cases require consideration by a larger
Bench and that is how the present batch of cases are referred to
a larger Bench. On the basis of the submissions made, the
following reasons were mentioned:
(i). The decision in Dinesh Singh Chauhan (supra) has
not considered the entries in the legislative lists of the
76
Seventh Schedule, more particularly, Entry 66 of the
Union List and Entry 25 of the Concurrent List;
(ii). The main contention of the petitioners is that while
coordination and determination of standards in
institutions for higher education falls within the
exclusive domain of the Union (Entry 66 List I), medical
education is a subject in the Concurrent List (Entry 25
List III). Though, Entry 25 of List III is subject to Entry
66 of List I, the State is not denuded of its power to
legislate on the manner and method of making
admission to postgraduate medical courses.
(iii). The contentions which have been raised in the
present batch of petitions were not addressed before
this Court in Dinesh Singh Chauhan (supra).
(iv). The judgment in Dinesh Singh Chauhan (supra)
does not consider three decisions of the Constitution
Bench in R. Chitralekha (supra), Chitra Ghosh (supra)
and Modern Dental College & Research Center (supra);
and
(v) There are decisions rendered by Benches of an
equal strength as in Dinesh Singh Chauhan (supra).
9.3 Therefore, the following issues arise for consideration
and determination of this Court in the present batch of writ
petitions/appeals:
1. What is the scope and ambit of Entry 66 of List I?
77
2. What will be the impact/effect of MCI Regulations,
2000 framed by the Medical Council of India in exercise of its
powers under Section 33 of the Indian Medical Council Act,
1956?
3. Whether in view of Entry 66 of List I, the State is
denuded of its power to legislate on the manner and method
of the postgraduate medical courses, more particularly,
making special provisions for inservice candidates in the
postgraduate degree/diploma courses?
4. Whether Regulation 9 of MCI Regulations, 2000, more
particularly, Regulation 9(IV) and 9(VII) takes away the power
of the States under Entry 25 of List III to provide for a
separate source of entry for inservice candidates seeking
admission to postgraduate medical courses?
5. Whether Regulation 9 of MCI Regulations, 2000 is
understood to not allow for the States to provide for a
separate source of entry for inservice candidates seeking
admission to postgraduate degree courses, the same is
arbitrary, discriminatory and violative of Articles 14 and 19(1)
(g) of the Constitution of India, and also ultra vires of the
provisions of the Indian Medical Council Act, 1956?
6. Whether Regulation 9 is a complete code in itself, as
observed by this Court in the case of Dinesh Singh Chauhan
(supra) affecting the rights/authority of the States to provide
for reservation and/or separate source of entry for inservice
candidates seeking admission to postgraduate degree
courses?
10. While considering the aforesaid issues, let us first consider
the scope and ambit of Entry 66 of List I – legislative competence
of the Union in exercise of powers under Entry 66, List I of
Schedule VII of the Constitution of India.
78
10.1 In the case of Modern Dental College & Research Centre
(supra) , a Constitution Bench of this Court again had an occasion
to deal with and consider Entry 66 List I and Entry 25 List III.
After considering catena of decisions of this Court, more
particularly, the decisions of this Court in the cases of Gujarat
University (supra); R. Chitralekha (supra); Preeti Srivastava
17
(supra); and Bharati Vidyapeeth v. State of Maharashtra , it is
held by this Court that Entry 66 in List I is a specific entry having
a very specific and limited scope. It is further observed by this
Court that it deals with “coordination and determination of
standards” in institution of higher education or research as well
as scientific and technical institutions. The words “coordination
and determination of standards” would mean laying down the
said standards. It is observed that thus, when it comes to
prescribing the standards for such institutions of higher learning,
exclusive domain is given to the Union. The relevant observations
are in paragraphs 101 to 105, which read as under:
“101. To our mind, Entry 66 in List I is a specific entry having a
very specific and limited scope. It deals with coordination and
determination of standards in institution of higher education or
research as well as scientific and technical institutions. The
words “ coordination and determination of standards ” would
17 (2004) 11 SCC 755
79
mean laying down the said standards. Thus, when it comes to
prescribing the standards for such institutions of higher
learning, exclusive domain is given to the Union. However, that
would not include conducting of examination, etc. and
admission of students to such institutions or prescribing the fee
in these institutions of higher education, etc. In fact, such
coordination and determination of standards, insofar as medical
education is concerned, is achieved by parliamentary legislation
in the form of the Indian Medical Council Act, 1956 and by
creating the statutory body like Medical Council of India (for
short “MCI”) therein. The functions that are assigned to MCI
include within its sweep determination of standards in a
medical institution as well as coordination of standards and
that of educational institutions. When it comes to regulating
“ education ” as such, which includes even medical education as
well as universities (which are imparting higher education), that
is prescribed in List III Entry 25, thereby giving concurrent
powers to both Union as well as States. It is significant to note
that earlier education, including universities, was the subject
matter of List II Entry 11 [“ 11. “ Education ” including
universities, subject to the provisions of Entries 63, 64, 65 and
66 of List I and Entry 25 of List III”]. Thus, power to this extent
was given to the State Legislatures. However, this entry was
omitted by the Constitution (Fortysecond Amendment) Act,
1976 with effect from 371977 and at the same time List II
Entry 25 was amended [Unamended Entry 25 in List III read as:
“Vocational and technical training of labour”]. Education,
including university education, was thus transferred to the
Concurrent List and in the process technical and medical
education was also added. Thus, if the argument of the
appellants is accepted, it may render Entry 25 completely
otiose. When two entries relating to education, one in the Union
List and the other in the Concurrent List, coexist, they have to
be read harmoniously. Reading in this manner, it would become
manifest that when it comes to coordination and laying down of
standards in the higher education or research and scientific and
technical institutions, power rests with the Union/Parliament to
the exclusion of the State Legislatures. However, other facets of
80
education, including technical and medical education, as well as
governance of universities is concerned, even State Legislatures
are given power by virtue of Entry 25. The field covered by List
III Entry 25 is wide enough and as circumscribed to the limited
extent of it being subject to List I Entries 63, 64, 65 and 66.
102. Most educational activities, including admissions,
have two aspects: the first deals with the adoption and setting
up the minimum standards of education. The objective in
prescribing minimum standards is to provide a benchmark of
the calibre and quality of education being imparted by various
educational institutions in the entire country. Additionally, the
coordination of the standards of education determined
nationwide is ancillary to the very determination of standards.
Realising the vast diversity of the nation wherein levels of
education fluctuated from lack of even basic primary education,
to institutions of high excellence, it was thought desirable to
determine and prescribe basic minimum standards of education
at various levels, particularly at the level of research
institutions, higher education and technical education
institutions. As such, while balancing the needs of States to
impart education as per the needs and requirements of local
and regional levels, it was essential to lay down a uniform
minimum standard for the nation. Consequently, the
Constitutionmakers provided for List I Entry 66 with the
objective of maintaining uniform standards of education in
fields of research, higher education and technical education.
103. The second/other aspect of education is with regard
to the implementation of the standards of education determined
by Parliament, and the regulation of the complete activity of
education. This activity necessarily entails the application of the
standards determined by Parliament in all educational
institutions in accordance with the local and regional needs.
Thus, while List I Entry 66 dealt with determination and
coordination of standards, on the other hand, the original List II
Entry 11 granted the States the exclusive power to legislate with
respect to all other aspects of education, except the
81
determination of minimum standards and coordination which
was in national interest. Subsequently, vide the Constitution
(Fortysecond Amendment) Act, 1976, the exclusive legislative
field of the State Legislature with regard to education was
removed and deleted, and the same was replaced by amending
List III Entry 25 granting concurrent powers to both Parliament
and State Legislature the power to legislate with respect to all
other aspects of education, except that which was specifically
covered by List I Entries 63 to 66.
104. No doubt, in Bharati Vidyapeeth [ Bharati
Vidyapeeth v. State of Maharashtra , (2004) 11 SCC 755 : 2
SCEC 535] it has been observed that the entire gamut of
admission falls under List I Entry 66. The said judgment by a
Bench of two Judges is, however, contrary to law laid down in
earlier larger Bench decisions. In Gujarat University [ Gujarat
University v. Krishna Ranganath Mudholkar , AIR 1963 SC 703 :
1963 Supp (1) SCR 112] , a Bench of five Judges examined the
scope of List II Entry 11 (which is now List III Entry 25) with
reference to List I Entry 66. It was held that the power of the
State to legislate in respect of education to the extent it is
entrusted to Parliament, is deemed to be restricted.
Coordination and determination of standards was in the
purview of List I and power of the State was subject to power of
the Union on the said subject. It was held that the two entries
overlapped to some extent and to the extent of overlapping the
power conferred by List I Entry 66 must prevail over power of
the State. Validity of a State legislation depends upon whether it
prejudicially affects “ coordination or determination of standards ”,
even in absence of a Union legislation. In R. Chitralekha v. State
of Mysore [ R. Chitralekha v. State of Mysore , AIR 1964 SC 1823 :
(1964) 6 SCR 368] , the same issue was again considered. It was
observed that if the impact of the State law is heavy or
devastating as to wipe out or abridge the Central field, it may be
struck down. In State of T.N. v. Adhiyaman Educational &
Research Institute [ State of T.N. v. Adhiyaman Educational &
Research Institute , (1995) 4 SCC 104 : 1 SCEC 682] , it was
observed that to the extent that State legislation is in conflict
82
with the Central legislation under Entry 25, it would be void
and inoperative. To the same effect is the view taken in Preeti
Srivastava [ Preeti Srivastava v. State of M.P. , (1999) 7 SCC 120 :
1 SCEC 742] and State of Maharashtra v. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya [ State of Maharashtra v. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya , (2006) 9 SCC 1
: 5 SCEC 637] . Though the view taken in State of
M.P. v. Nivedita Jain [ State of M.P. v. Nivedita Jain , (1981) 4 SCC
296] and Ajay Kumar Singh v. State of Bihar [ Ajay Kumar
Singh v. State of Bihar , (1994) 4 SCC 401] to the effect that
admission standards covered by List I Entry 66 could apply only
post admissions was overruled in Preeti Srivastava [ Preeti
Srivastava v. State of M.P. , (1999) 7 SCC 120 : 1 SCEC 742] , it
was not held that the entire gamut of admissions was covered
by List I as wrongly assumed in Bharati Vidyapeeth [ Bharati
Vidyapeeth v. State of Maharashtra , (2004) 11 SCC 755 : 2
SCEC 535] .
105. We do not find any ground for holding that Preeti
Srivastava [ Preeti Srivastava v. State of M.P. , (1999) 7 SCC 120 :
1 SCEC 742] excludes the role of States altogether from
admissions. Thus, observations in Bharati Vidyapeeth [ Bharati
Vidyapeeth v. State of Maharashtra , (2004) 11 SCC 755 : 2
SCEC 535] that entire gamut of admissions was covered by List
I Entry 66 cannot be upheld and overruled to that extent. No
doubt, List III Entry 25 is subject to List I Entry 66, it is not
possible to exclude the entire gamut of admissions from List III
Entry 25. However, exercise of any power under List III Entry 25
has to be subject to a Central law referable to Entry 25.”
(emphasis supplied)
In the concurring judgment, Bhanumati, J. in paragraphs
131 to 134 and 147 to 149, has held as under:
83
| “131. In order to answer the concern of other Constitution<br>Framers, Dr Ambedkar went on to clarify the limited scope of<br>List I Entry 66 (as in the present form), as proposed by him in<br>the following words: (CAD Vol. 9, p. 796) | |
|---|
| “Entry 57A merely deals with the maintenance of<br>certain standards in certain classes of institutions, namely,<br>institutions imparting higher education, scientific and<br>technical institutions, institutions for research, etc. You<br>may ask, “why this entry?” I shall show why it is necessary.<br>Take for instance, the BA Degree examination which is<br>conducted by the different universities in India. Now, most<br>provinces and the Centre, when advertising for candidates,<br>merely say that the candidate should be a graduate of a<br>university. Now, suppose the Madras University says that a<br>candidate at the BA Examination, if he obtained 15% of the<br>total marks shall be deemed to have passed that<br>examination; and suppose the Bihar University says that a<br>candidate who has obtained 20% of marks shall be deemed<br>to have passed the BA degree examination; and some other<br>university fixes some other standard, then it would be quite<br>a chaotic condition, and the expression that is usually<br>used, that the candidate should be a graduate, I think,<br>would be meaningless. Similarly, there are certain research<br>institutes, on the results of which so many activities of the<br>Central and Provincial Governments depend. Obviously,<br>you cannot permit the results of these technical and<br>scientific institutes to deteriorate from the normal standard<br>and yet allow them to be recognised either for the Central<br>purposes, for allIndia purposes or the purposes of the<br>State.” |
| |
| 132. The intent of our Constitution Framers while introducing<br>Entry 66 of the Union List was thus limited only to empowering<br>the Union to lay down a uniform standard of higher education<br>throughout the country and not to bereft the State Legislature<br>of its entire power to legislate in relation to “education” and<br>organising its own common entrance examination. | |
| |
84
133. If we consider the ambit of the present Entry 66 of the
Union List; no doubt the field of legislation is of very wide
import and determination of standards in institutions for higher
education. In the federal structure of India, as there are many
States, it is for the Union to coordinate between the States to
cause them to work in the field of higher education in their
respective States as per the standards determined by the Union.
Entry 25 in the Concurrent List is available both to the Centre
and the States. However, power of the State is subject to the
provisions of Entries 63, 64, 65, and 66 of the Union List; while
the State is competent to legislate on the education including
technical education, medical education and universities, it
should be as per the standards set by the Union.
134. The words “ coordination ” and “ determination of the
standards in higher education ” are the preserve of Parliament
and are exclusively covered by Entry 66 of the Union List. The
word “ coordination ” means harmonisation with a view to forge a
uniform pattern for concerted action. The term “fixing of
standards of institutions for higher education” is for the
purpose of harmonising coordination of the various institutions
for higher education across the country. Looking at the present
distribution of legislative powers between the Union and the
States with regard to the field of “ education ”, that State's power
to legislate in relation to “ education, including technical
education, medical education and universities ” is analogous to
that of the Union. However, such power is subject to Entries 63,
64, 65 and 66 of the Union List, as laid down in Entry 25 of the
Concurrent List. It is the responsibility of the Central
Government to determine the standards of higher education and
the same should not be lowered at the hands of any particular
State.
xxx xxx xxx xxx
147. Another argument that has been put forth is that the
power to enact laws laying down process of admission in
universities, etc. vests in both Central and State Governments
85
under Entry 25 of the Concurrent List only. Under Entry 25 of
the Concurrent List and erstwhile Entry 11 of the State List, the
State Government has enacted various legislations that inter
alia regulate admission process in various institutions. For
instance, Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam,
Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya
Vidhi Sansathan Vishwavidyalaya Adhiniyam, etc. were
established by the State Government in exercise of power under
Entry 25 of the Concurrent List. Similarly, the Central
Government has also enacted various legislations relating to
higher education under Entry 25 of the Concurrent List
pertaining to Centrally funded universities such as the
Babasaheb Bhimrao Ambedkar University Act, 1994, the
Maulana Azad National Urdu University Act, 1996, the Indira
Gandhi National Tribal University Act, 2007, etc. The Central
Government may have the power to regulate the admission
process for Centrally funded institutions like IITs, NIT, J IPMER ,
etc. but not in respect of other institutions running in the State.
148. In view of the above discussion, it can be clearly laid down
that power of the Union under Entry 66 of the Union List is
limited to prescribing standards of higher education to bring
about uniformity in the level of education imparted throughout
the country. Thus, the scope of Entry 66 must be construed
limited to its actual sense of “ determining the standards of
higher education ” and not of laying down admission process. In
no case is the State denuded of its power to legislate under List
III Entry 25. More so, pertaining to the admission process in
universities imparting higher education.
149. I have no hesitation in upholding the vires of the
impugned legislation which empowers the State Government to
regulate admission process in institutions imparting higher
education within the State. In fact, the State being responsible
for welfare and development of the people of the State, ought to
take necessary steps for welfare of its student community. The
field of “higher education” being one such field which directly
affects the growth and development of the State, it becomes
86
prerogative of the State to take such steps which further the
welfare of the people and in particular pursuing higher
education. In fact, the State Government should be the sole
entity to lay down the procedure for admission and fee, etc.
governing the institutions running in that particular State
except the Centrally funded institutions like IIT, NIT, etc.
because no one can be a better judge of the requirements and
inequalitiesinopportunity of the people of a particular State
than that State itself. Only the State legislation can create equal
level playing field for the students who are coming out from the
State Board and other streams.”
(emphasis supplied)
Thus, as held by the Constitution Bench of this Court in the
case of , in which this Court
Modern Dental College (supra)
considered catena of earlier decisions of this Court dealing with
the scope and ambit of Entry 66 List I, Entry 66 of List I is a
specific entry having a very specific and limited scope; it deals
with “Coordination and Determination of Standards” in
institutions of higher education or research as well as scientific
and technical institutions. It is further observed that the words
“Coordination and Determination of Standards” would mean
laying down the said standards and therefore when it comes to
prescribe the standards for such institutions of higher learning,
exclusive domain is given to the Union. It is specifically further
observed that that would not include conducting of examination
87
etc. and admission of students to such institutions or prescribing
the fee in these institutions of higher education, etc. Thus, in
exercise of powers under Entry 66 List I, the Union cannot
provide for anything with respect to reservation/percentage of
reservation and/or even mode of admission within the State
quota, which powers are conferred upon the States under Entry
25 of List III. In exercise of powers under Entry 25 List III, the
States have power to make provision for mode of admissions,
looking to the requirements and/or need in the concerned State.
10.2 We note that as per catena of decisions of this Court,
“institutional preference” in the postgraduate medical courses is
held to be permissible by the concerned States, (see D.N.
18
Chanchala (supra); Pradeep Jain v. Union of India ; Dr. Dinesh
19
Kumar v. Motilal Nehru Medical College, Allahabad ; Gujarat
20
University v. Rajiv Gopinath Bhatt ; AIIMS Students’ Union
21
(supra); Saurabh Chaudri v. Union of India ; and Yatinkumar
Jasubhai Patel (supra) ).
18 (1984) 3 SCC 654
19 (1986) 3 SCC 727
20 (1996) 4 SCC 60
21 (2003) 11 SCC 146
88
10.3 In a recent decision of this Court in the case of Yatinkumar
Jasubhai Patel (supra), the issue of “institutional preference”
within the State quota was considered in which the Gujarat
University framed the rules for the purpose of governing
admission to postgraduate courses. One of the rules provided
that 50% of the seats shall be filled in as per the All India 50%
quota and the remaining seats will be available for the candidates
passing from the Gujarat University. That was provided to the
candidates graduating from the Gujarat University. The aforesaid
rule of “institutional preference” was challenged before the High
Court. The vires of the aforestated rules providing “institutional
preference” giving preference to the candidates graduated from
the Gujarat University was challenged on the ground that in view
of introduction of the NEET and the admissions are given solely
on the basis of the merit and the marks obtained in NEET, the
rules providing “institutional preference” shall be violative of the
Indian Medical Council Act, 1956 and the MCI Regulations, 2000
framed under the Indian Medical Council Act, 1956. The High
Court dismissed the writ petition upholding the “institutional
preference”. The same was the subject matter before this Court.
It was submitted on behalf of the writ petitioners that even the
89
MCI Regulations for postgraduate admissions, MCI Regulations,
2000, do not permit the “institutional preference” and that the
MCI Regulations, 2000 held by this Court to be a complete code
and therefore no reservation is to be provided unless the same is
permitted under the MCI Regulations, 2000. The decision of this
Court in the case of D inesh Singh Chauhan (supra) was also
placed into service. However, considering the plethora of
decisions of this Court, referred to hereinabove, this Court has
again held that “institutional preference” is permissible and even
the introduction of NEET would not affect the “institutional
preference”. This Court has noted that “institutional preference”
up to 50% seats is permissible.
11. Now let us consider the scope and ambit of the MCI
Regulations, 2000, and whether MCI Regulations, 2000 take
away the power of the States under Entry 25 List III to provide for
separate source of entry for inservice candidates seeking
admission to postgraduate degree courses?
11.1 At this stage, Regulation 9 of MCI Regulations, 2000, as
amended on 15.2.2012, is required to be referred to, which reads
as under:
90
“9. Regulation 9, as amended on 1522012, reads as
follows:
“ 9. Procedure for selection of candidate for postgraduate
courses shall be as follows:
(I) There shall be a single eligibilitycumentrance
examination, namely, “National EligibilitycumEntrance
Test for admission to Postgraduate Medical Courses” in
each academic year. The superintendence, direction and
control of National EligibilitycumEntrance Test shall
vest with National Board of Examinations under overall
supervision of the Ministry of Health & Family Welfare,
Government of India.
(II) 3% seats of the annual sanctioned intake capacity
shall be filled up by candidates with locomotory disability
of lower limbs between 50% to 70%:
Provided that in case any seat in this 3% quota
remains unfilled on account of unavailability of
candidates with locomotory disability of lower limbs
between 50% to 70% then any such unfilled seat in this
3% quota shall be filled up by persons with locomotory
disability of lower limbs between 40% to 50% before they
are included in the annual sanctioned seats for general
category candidates:
Provided further that this entire exercise shall be
completed by each medical college/institution as per the
statutory time schedule for admissions.
(III) In order to be eligible for admission to any
postgraduate course in a particular academic year, it
shall be necessary for a candidate to obtain minimum of
marks at 50th percentile in “National Eligibilitycum
Entrance Test for Postgraduate courses” held for the said
academic year. However, in respect of candidates
belonging to the Scheduled Castes, the Scheduled Tribes,
the Other Backward Classes, the minimum marks shall
be at 40th percentile. In respect of candidates as provided
in clause (II) above with locomotory disability of lower
limbs, the minimum marks shall be at 45th percentile.
The percentile shall be determined on the basis of highest
marks secured in the allIndia common merit list in
“National EligibilitycumEntrance Test” for postgraduate
courses:
Provided when sufficient number of candidates in the
respective categories fail to secure minimum marks as
prescribed in National EligibilitycumEntrance Test held
for any academic year for admission to postgraduate
courses, the Central Government in consultation with the
MCI may at its discretion lower the minimum marks
91
required for admission to postgraduate course for
candidates belonging to respective categories and marks
so lowered by the Central Government shall be applicable
for the said academic year only.
(IV) The reservation of seats in medical
colleges/institutions for respective categories shall be as
per applicable laws prevailing in States/Union Territories.
An allIndia merit list as well as Statewise merit list of the
eligible candidates shall be prepared on the basis of the
marks obtained in National EligibilitycumEntrance Test
and candidates shall be admitted to postgraduate courses
from the said merit lists only :
Provided that in determining the merit of candidates
who are in service of government/public authority,
weightage in the marks may be given by the
government/competent authority as an incentive at the
rate of 10% of the marks obtained for each year of service
in remote and/or difficult areas up to the maximum of 30%
of the marks obtained in National EligibilitycumEntrance
Test, the remote and difficult areas shall be as defined by
the State Government/competent authority from time to
time .
(V) No candidate who has failed to obtain the
minimum eligibility marks as prescribed in clause (II)
above shall be admitted to any postgraduate courses in
the said academic year.
(VI) In nongovernmental medical colleges/institutions,
50% (fifty per cent) of the total seats shall be filled by the
State Government or the Authority appointed by them,
and the remaining 50% (fifty per cent) of the seats shall be
filled by the medical colleges/institutions concerned on
the basis of the merit list prepared as per the marks
obtained in National EligibilitycumEntrance Test.
(VII) 50% of the seats in postgraduate diploma courses
shall be reserved for medical officers in the government
service , who have served for at least three years in remote
and/or difficult areas. After acquiring the PG diploma, the
medical officers shall serve for two more years in remote
and/or difficult areas as defined by State
Government/competent authority from time to time.
(VIII) The Universities and other authorities concerned
shall organise admission process in such a way that
teaching in postgraduate courses starts by 2nd May and
by 1st August for super speciality courses each year. For
this purpose, they shall follow the time schedule indicated
in Appendix III.
92
(IX) There shall be no admission of students in respect
of any academic session beyond 31st May for
postgraduate courses and 30th September for super
speciality courses under any circumstances. The
universities shall not register any student admitted
beyond the said date.
(X) The MCI may direct, that any student identified as
having obtained admission after the last date for closure
of admission be discharged from the course of study, or
any medical qualification granted to such a student shall
not be a recognised qualification for the purpose of the
Indian Medical Council Act, 1956. The institution which
grants admission to any student after the last date
specified for the same shall also be liable to face such
action as may be prescribed by MCI including surrender
of seats equivalent to the extent of such admission made
from its sanctioned intake capacity for the succeeding
academic year.”
11.2 Regulations, 2000 are framed by the MCI in exercise of
its powers conferred under Section 33 of the Indian Medical
Council Act, 1956. The Indian Medical Council Act, 1956 has
been enacted/passed by the Union in exercise of powers
conferred under Entry 66, List I. Therefore, the main source of
power of the MCI would be from Entry 66 List I. As per Section
33 of the MCI Act, the Council may with the previous sanction of
the Central Government make regulations generally to carry out
the purpose of the said Act. Therefore, in exercise of powers
under Section 33 of the MCI Act, Regulations 2000 are made by
the MCI. As observed hereinabove, the MCI draws the power from
Entry 66 List I. As observed hereinabove, Entry 66 List I is a
93
specific entry having a very specific and limited scope which deals
with “Coordination and Determination of Standards” of higher
education for research as well as scientific and technical
institutions. In fact, such “Coordination and Determination of
Standards”, insofar as medical education is concerned, is
achieved by parliamentary legislation in the form of Indian
Medical Council Act, 1956 and by creating the statutory body like
MCI. The functions that are assigned to MCI include within its
sweep “Determination of Standards” in a medical institution as
well as “Coordination of Standards” and that of educational
institutions. As discussed hereinabove, when it comes to
regulating “education” as such, which includes even medical
education as well as universities, that is prescribed in List III,
Entry 25.
11.3 If one considers the Statement of Objects and Reasons of the
Indian Medical Council Act, 1956, it cannot be said that the
Medical Council of India would have any authority or jurisdiction
to frame any regulations with respect to reservation and/or
making special provision like providing for a separate source of
entry for inservice candidates seeking admission to postgraduate
94
degree courses. Regulations, 2000 have been made in exercise of
powers under Section 33 of the MCI Act. Section 33 of the MCI
Act reads as under:
“33. Power to make Regulations .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 ) the management of the property of the Council and the
maintenance and audit of its accounts;
( b ) the summoning and holding of meetings of the Council,
the times and places where such meetings are to be
held, the conduct of business thereat and the
number of members necessary to constitute a
quorum;
( c ) the resignation of members of the Council;
( d ) the powers and duties of the President and Vice
President;
( e ) the mode of appointment of the Executive Committee
and other Committees, the summoning and holding
of meetings, and the conduct of business of such
Committees;
( f ) the tenure of office, and the powers and duties of the
Registrar and other officers and servants of the
Council;
( fa ) the form of the scheme, the particulars to be given in
such scheme, the manner in which the scheme is to
be preferred and the fee payable with the scheme
under clause ( b ) of subsection (2) of Section 10A;
( fb ) any other factors under clause ( g ) of subsection (7) of
Section 10A;
( fc ) the criteria for identifying a student who has been
granted a medical qualification referred to in the
Explanation to subsection (3) of Section 10B;
( g ) the particulars to be stated, and the proof of
qualifications to be given in applications for
registration under this Act;
( h ) the fees to be paid on applications and appeals under
this Act;
( i ) the appointment, powers, duties and procedure of
medical inspectors and visitors;
95
( 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;
( ) the conduct of professional examinations, qualifications
l
of examiners and the conditions of admission to such
examinations;
( m ) the standards of professional conduct and etiquette and
code of ethics to be observed by medical
practitioners; and
( ma ) the modalities for conducting screening tests under
subsection (4A), and under the proviso to sub
section (4B), and for issuing eligibility certificate
under subsection (4B), of Section 13;
( ) the designated authority, other languages and the
mb
manner of conducting of uniform entrance
examination to all medical educational institutions at
the undergraduate level and postgraduate level;
( n ) any matter for which under this Act provision may be
made by regulations.”
On a fair reading of entire Section 33 of the MCI Act, it does
not confer any authority and/or power to the MCI to frame the
regulations with respect to reservation in the medical courses,
more particularly, to provide for a separate source of entry for in
service candidates seeking admission to postgraduate degree
courses, as sought to be contended on behalf of the MCI and
counsel opposing for providing for a separate source of entry for
inservice candidates.
96
12. In light of the above observations, we shall consider the
relevant provisions of MCI Regulations, 2000, more particularly,
Regulation 9. The title of Regulation 9 is “Procedure for selection
of candidate for postgraduate courses”. Regulation 9(I) provides
that there shall be a single eligibilitycumentrance examination,
namely, NEET. Regulation 9(II) further provides that 3% seats of
the annual sanctioned intake capacity shall be filled up by
candidates with locomotory disability. Regulation 9(III) provides
for the eligibility criteria. It provides that in order to be eligible
for admission to any postgraduate course in a particular
academic year, it shall be necessary for a candidate to obtain
th
minimum of marks at 50 percentile in NEET for postgraduate
courses. However, in respect of candidates belonging to
th
SC/ST/OBC, the minimum marks shall be at 40 percentile.
Thus, it can be seen that Regulation 9(III) can be said to be
providing the standards which shall be within the domain and
legislative competence of the Union and the MCI, in exercise of
powers under Entry 66, List I. The first part of Regulation 9(IV)
speaks for the reservation of seats in medical
colleges/institutions. It provides that the reservation of seats in
medical colleges/institutions for respective categories shall be as
97
per applicable laws prevailing in States/Union Territories . It
further provides for preparing allIndia merit list as well as State
wise merit list of the eligible candidates on the basis of the marks
obtained in NEET and candidates shall be admitted to
postgraduate courses from the said merit lists only. To that
stage, it can be said that the same is within the legislative
competence of the Union/MCI, in exercise of powers under Entry
66 List I.
However, proviso to Regulation 9(IV) further provides that in
determining the merit of candidates who are in service of
Government/public authority, weightage in the marks may be
given by the Government/competent authority as an incentive at
the rate of 10% of the marks obtained for each year of service in
remote and/or difficult areas up to the maximum of 30% of the
marks obtained in NEET. It further provides that the remote and
difficult areas shall be as defined by the State
Government/competent authority from time to time. Thus, it can
be seen that even the proviso can be said to be with respect to
preparing the merit list only.
98
12.1 As held by this Court in earlier decisions, Regulation 9(IV) is
limited only to reservation in favour of SC/ST/OBC and as per
the prevailing laws in the States. If that be so, then the proviso
which as such is not dealing with the reservation cannot be said
to be in the form of an exception to first part of Regulation 9(IV)
and it can be seen that it is an independent provision dealing
with the inservice candidates and that too for the purpose of
preparing the merit list. Thus, the proviso becomes the
substantive provision and is more concerned with the marks to be
allocated which is the concern of Regulation 9(III). It is also
required to be noted that even this proviso confers a discretion on
the State to provide for weightage in marks for the services
rendered in remote or difficult areas. The proviso only enables
the States by conferring the discretion for weightage. The proviso
has nothing to do with the reservation in the postgraduate degree
courses and therefore it shall not negate the State’s power to
make reservation and/or make special provision to provide for a
separate source of entry for inservice candidates seeking
admission to postgraduate degree courses. Thus, Regulation
9(IV) as such cannot be said to be taking away the power of the
States under Entry 25, List III, to provide for a separate source of
99
entry for inservice candidates seeking admission to postgraduate
degree courses. Any contrary view would affect the right of the
States to make reservation and/or to make special provision for
admission in exercise of powers under Entry 25 List III. If it is
construed that Regulation 9 of the MCI Regulations, 2000, more
particularly Regulation 9(IV) provides for reservation and/or deals
with the reservation for inservice candidates, in that case, it will
be beyond the legislative competence of the Union as well as it
will be ultra vires to the Indian Medical Council Act, 1956. As
observed hereinabove, Section 33 of the Indian Medical Council
Act, 1956 does not confer any power on the MCI to make
regulations with respect to reservation. At the cost of repetition,
it is observed that “institutional preference”, despite MCI
Regulations, 2000, has been upheld and held to be permissible by
the concerned States.
13. The sum and substance of the above discussion would be
that,
1) that Entry 66 List I is a specific entry having a
very limited scope;
2) it deals with “coordination and determination
of standards” in higher education;
100
3) the words “coordination and determination of
standards would mean laying down the said
standards;
4) the Medical Council of India which has been
constituted under the provisions of the Indian
Medical Council Act, 1956 is the creature of the
statute in exercise of powers under Entry 66 List I
and has no power to make any provision for
reservation, more particularly, for inservice
candidates by the concerned States, in exercise of
powers under Entry 25 List III;
5) that Regulation 9 of MCI Regulations, 2000
does not deal with and/or make provisions for
reservation and/or affect the legislative competence
and authority of the concerned States to make
reservation and/or make special provision like the
provision providing for a separate source of entry for
inservice candidates seeking admission to
postgraduate degree courses and therefore the
concerned States 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 Entry 25 of List III; and
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
Entry 66 List I.
14. Now so far as the law for inservice candidates and the
object and purpose to provide reservation and/or to make special
101
provision for admission for inservice candidates is concerned,
few decisions of this Court are required to be considered.
14.1 In the case of K. Duraisamy (supra), the Court was
considering the following provisions of the Government Order
dated 9.2.1999 issued by the State of Tamil Nadu:
| “7. xxx xxx xxx | | | |
|---|
| | | | |
| “1. (iii)(a) The reservation will be confined to and kept<br>at 50% in favour of the inservice candidates on merit<br>basis.<br>(b) 50% of the seats available in each of the<br>specialities shall be allotted exclusively to the service<br>candidates.<br>(c) If a sufficient number of eligible service candidates<br>are not available for the seats reserved exclusively for<br>them, such vacancies shall be filled up by the non<br>service candidates from the merit list/waiting list in the<br>respective reserved compartments. If vacancies exist<br>even after this, such vacancies shall be filled up<br>applying the order of preference indicated in the<br>prospectus.<br>(d) The following categories of Medical Officers only<br>will be treated as service candidates and considered for<br>selection against 50% of seats allocated exclusively for<br>service candidates:<br>(1) All Medical Officers selected by the TNPSC<br>and appointed in the Tamil Nadu Medical Services<br>on regular basis, who have put in minimum of 2<br>years' continuous service as on 121999.<br>(2) Medical Officers (or) Health Officers in the<br>Public Health Department who have been selected<br>by the TNPSC and working under the control of | | “1. (iii)(a) The reservation will be confined to and kept<br>at 50% in favour of the inservice candidates on merit<br>basis. | | |
| | (b) 50% of the seats available in each of the<br>specialities shall be allotted exclusively to the service<br>candidates. | | |
| | (c) If a sufficient number of eligible service candidates<br>are not available for the seats reserved exclusively for<br>them, such vacancies shall be filled up by the non<br>service candidates from the merit list/waiting list in the<br>respective reserved compartments. If vacancies exist<br>even after this, such vacancies shall be filled up<br>applying the order of preference indicated in the<br>prospectus. | | |
| | (d) The following categories of Medical Officers only<br>will be treated as service candidates and considered for<br>selection against 50% of seats allocated exclusively for<br>service candidates: | | |
| | | (1) All Medical Officers selected by the TNPSC<br>and appointed in the Tamil Nadu Medical Services<br>on regular basis, who have put in minimum of 2<br>years' continuous service as on 121999. | |
| | | (2) Medical Officers (or) Health Officers in the<br>Public Health Department who have been selected<br>by the TNPSC and working under the control of | |
102
| DPH and PM and who apply for Public Health<br>course i.e. diploma in Public Health can be<br>considered as service candidates for DPH as the<br>above qualification namely diploma in Public Health<br>is essential for declaration of probation. However, to<br>consider under service quota for MD (SPM), the<br>candidates must have completed 2 years of service<br>like the other postgraduate courses. | | | | |
|---|
| (3) Medical Officers who have put in 2 years of<br>continuous service and who are working in: | | | | |
| (i) Local bodies/municipalities in Tamil Nadu.<br>(ii) Government of India institutions in Tamil<br>Nadu.<br>(iii) Public sector undertaking and organisation<br>under the control of the Government of India in<br>Tamil Nadu.<br>(iv) Undertakings and organisations of the<br>Government of Tamil Nadu. These Medical<br>Officers should produce bona fide certificates<br>from the authorities concerned with the<br>declaration to serve in the respective<br>institutions for a minimum period of 5 years<br>after completion of the course. | | | (i) Local bodies/municipalities in Tamil Nadu. | |
| (ii) Government of India institutions in Tamil<br>Nadu. | | | |
| (iii) Public sector undertaking and organisation<br>under the control of the Government of India in<br>Tamil Nadu. | | | |
| | (iv) Undertakings and organisations of the<br>Government of Tamil Nadu. These Medical<br>Officers should produce bona fide certificates<br>from the authorities concerned with the<br>declaration to serve in the respective<br>institutions for a minimum period of 5 years<br>after completion of the course. | | |
In that case, the Government of Tamil Nadu issued G.O
dated 9.2.1999 laying down the procedure for selection of
candidates for admission to postgraduate diploma, degree, MDS
and higher speciality courses. The Government Order envisaged
reservation confining up to 50% in favour of the inservice
candidates on merit basis and further stipulated that 50% of the
seats available in each of the speciality shall be allotted
103
exclusively to the service candidates. The Government Order also
enumerated various categories of Medical Officers, who alone will
be treated as inservice candidates and considered for selection
against the 50% of the seats allocated exclusively for service
candidates. The aforesaid Government Order was challenged
before the High Court. The learned Single Judge, while allowing
the writ petitions held that reservation of 50% of seats for non
service candidates have to be given effect to or worked out by
selecting candidates from inservice and nonservice, on the basis
of merit in the first instance and thereafter the 50% seats
reserved for inservice candidates shall be filled up by the in
service candidates who could not gain selection on the basis of
merit as against the other 50% earmarked as “open”. The learned
Single Judge was further of the view that there is no category as
“nonservice candidates”, and it is only the inservice candidates
who form a separate class. Aggrieved, some of the selected
candidates filed writ appeals, which came to be dismissed
summarily. The appeals filed by the State came up subsequently
before another Division Bench and finding themselves unable to
agree with the order of dismissal of the earlier appeals, the
matters were referred for consideration by a larger Bench.
104
Thereupon the matters were placed before the Full Bench, which,
in turn, reversed the judgment of the learned Single Judge and
dismissed the writ petitions. The judgment of the Full Bench was
the subject matter before this Court. While considering the
aforesaid provisions, this Court answered the question, namely,
“c ould the State Government have legitimately made a provision
allocating 50% of seats exclusively in favour of inservice
candidates and keep open the avenue for competition for them in
respect of the remaining 50% along with others”, in affirmative.
In paragraphs 8 to 12, it is held as under:
“8. That the Government possesses the right and authority to
decide from what sources the admissions in educational
institutions or to particular disciplines and courses therein have
to be made and that too in what proportion, is well established
and by now a proposition well settled, too. It has been the
consistent and authoritativelysettled view of this Court that at
the superspeciality level, in particular, and even at the
postgraduate level reservations of the kind known as “protective
discrimination” in favour of those considered to be backward
should be avoided as being not permissible. Reservation, even if
it be claimed to be so in this case, for and in favour of the in
service candidates, cannot be equated or treated on par with
communal reservations envisaged under Articles 15(4) or 16(4)
and extended the special mechanics of their implementation to
ensure such reservations to be the minimum by not counting
those selected in open competition on the basis of their own
merit as against the quota reserved on communal
considerations.
105
9. Properly speaking, in these cases, we are concerned
with the allocation of seats for admission in the form of a quota
amongst inservice candidates on the one hand, and nonservice
or private candidates on the other and the method or manner of
working out in practice the allocation of seats among the
members of the respective category. Could the State
Government have legitimately made a provision allocating 50%
of seats exclusively in favour of the inservice candidates and
keep open the avenue for competition for them in respect of the
remaining 50% along with others, denying a fair contest in
relation to a substantial or sizeable number of other candidates,
who are not in service and who fall under the category of non
service candidates, will itself be open to serious doubt. One
such attempt seems to have been put in issue before the
Madras High Court which held that reservation in favour of the
inservice candidates for the academic year 199293 should be
confined to 50% and awarding of two additional marks, instead
of one additional mark for each completed year of service in
primary health centres was unconstitutional and when the
matter was brought to this Court, in the decision reported
in State of T.N. v. T. Dhilipkumar [(1995) 5 Scale 208 (2)] the
decision of the High Court has been upheld. This Court also
further observed that the Government should appoint a highly
qualified committee to determine from year to year what, in fact,
should be the percentagewise reservation required for the in
service candidates, having regard to the then prevailing
situation and that the percentage of fifty per cent shall, if found
appropriate, be reduced.
10. The stipulations governing the selection for
admissions in these cases have got to be viewed and construed
in the above backdrop of events and legal position. The learned
Single Judge, in our view, was certainly not right in equating
the provisions made for allocation of seats in the form of fixation
of quota in this case with the usual form of communal
reservations and allowing himself to be carried away by the
peculiar method of working out such reservations in order to
ensure adequate representation to such candidates, and
106
applying those principles to construe a provision of the nature
involved in these cases. Yet another error in the reasoning of the
learned Single Judge lies in his assumption that “open quota”
seats have to be thrown open to all and are meant only to be
filled up purely on the basis of merit performance and no one
from even the class of candidates in whose favour a special
quota has already been provided can be excluded from
consideration as against the “open quota”. This reasoning of the
learned Single Judge not only ignores the object and scheme
underlying the allocation of seats for admissions for the
academic year 19992000, but has the consequence of rewriting
the prospectus and introducing altogether a different pattern of
admissions, overriding the policy of the Government aimed at
meeting out equal justice and affording equality of opportunity
to the different categories classified for the purpose. If the
Government can be said to possess the power to fix a quota for
the exclusive benefit of “inservice” candidates, it is beyond
comprehension or dictates of either reason or logic as to why the
Government cannot equally exclusively earmark the remaining
seats in favour of “nonservice” or private candidates, thereby
confining the claims of service candidates to the number of
seats earmarked and allocated to them. As there can be a
classified category of “service candidates”, it is open to the
Government to make classification of all those other than those
falling in the category of service candidates as nonservice
candidates and allocate the remaining seats after allotment to
the service candidates for exclusive benefit of the source of non
service or private candidates. There is nothing in law which
deprives the Government of any such powers and no such
impediment has either been brought to our notice at the time of
hearing or seems to have been brought to the notice of the
learned Single Judge to warrant any such construction, as has
been adopted by him. We are also of the view that it does not lie
in the mouth of the writ petitioners to raise a bogey of selection
based on merit alone, only in respect of a portion of the seats
available for admission to nonservice candidates, when they
belong to and are part of a category or class who have got in
their favour fifty per cent of the number of seats in each of the
107
disciplines allocated to their category of “inservice” candidates
to be filled up exclusively from such “inservice” candidates on
the basis of their own inter se merit and not on the overall merit
performance of all the candidates — both inservice and non
service put together. The writ petitioners are found to have
applied as inservice candidates and merely because they could
not be selected within the number of seats earmarked for their
category or class on the basis of the inter se merits among their
own class, they cannot be allowed to contend to the contrary in
retrospect and on hindsight experience of having obtained more
marks, than those who got selected as against the seats
earmarked and allocated to the nonservice candidates. The
justification, both in law and on facts for exclusive allocation
and stipulation of a definite quota or number of seats for non
service or private candidates, in our view, lies in the very
principle which warranted or enabled the fixation of a quota of
fifty per cent of seats and exclusively allotted to the inservice
candidates. Any countenance of such claims of the appellants is
likely to also endanger the very allocation of 50% of the seats
exclusively to the category of inservice candidates, too.
11. On a consideration of the reasoning of the Full Bench
as also the construction placed upon the Government Order and
the prospectus, we are of the view that the State Government, in
the undoubted exercise of its power, has rightly decided, as a
matter of policy, so far as the admissions to superspeciality
andpostgraduate diploma/degree/MDS courses for the
academic session 19992000 are concerned to have scheme or
pattern of two sources of candidates based upon a broad
classification into two categories, i.e., inservice candidates and
nonservice or private candidates with each one of them
allocated exclusively for their own respective category of
candidates fifty per cent of the seats, the ultimate selection for
admission depending upon the inter se merit performance
amongst their own category of candidates. As pointed out by the
Full Bench, the change in the nomenclature of the
categorisation from “open competition” in 19981999, to “open
quota” in 19992000 and the conspicuous omission in the
108
scheme and the prospectus for 19992000 of a specific
stipulation like the one contained in clause X (5) in the
prospectus for 19981999 that the 50% of the seats available for
open competition shall be made available for selection and
admission of both service and nonservice candidates, as also
the stipulation contained in the Government Order and the
prospectus for 19992000 under the caption “Criteria for
selection under 50% open quota”, which specifically reads that
all other eligible Medical Officers except those specified in clause
( iii )( d ) above (meaning thereby Medical Officers who will be
treated as service candidates and allowed to apply as such) are
eligible to apply under 50% of the open quota, supports the
stand of the State Government and the Selection Committee and
justifies the selections for admission already made by them. The
further stipulation that the reservation will be confined to and
kept at 50% in favour of the inservice candidates on merit
basis, coupled with the other provisions noticed above make it
abundantly clear that the selection of the inservice candidates
is confined to and has to be kept at 50% only of the total seats
and not against any of the other seats, exclusively earmarked
for the nonservice or private candidates.
12. The mere use of the word “reservation” per se does
not have the consequence of ipso facto applying the entire
mechanism underlying the constitutional concept of a protective
reservation specially designed for the advancement of any
sociallyandeducationallybackward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes, to enable them
to enter and adequately represent in various fields. The
meaning, content and purport of that expression will necessarily
depend upon the purpose and object with which it is used.
Since reservation has diverse natures and may be brought
about in diverse ways with varied purposes and manifold
objects, the peculiar principles of interpretation laid down by
the courts for implementing reservations envisaged under the
Constitution in order to ensure adequate and effective
representation to the backward classes as a whole cannot be
readily applied out of context and unmindful of the purpose of
109
| | reservations as the one made in this case, more to safeguard the<br>interest of candidates who were already in service to enable<br>such inservice candidates to acquire higher and advanced<br>education in specialised fields to improve their professional<br>talents for the benefit of the patients to be treated in such<br>medical institutions where the inservice candidates are<br>expected to serve. That apart, where the scheme envisaged is<br>not by way of a mere reservation but is one of classification of<br>the sources from which admissions have to be accorded,<br>fixation of respective quota for such classified groups, the<br>principles at times applied in construing provisions relating to<br>reservation simpliciter will have no relevance or application.<br>Though the prescription of a quota may involve in a general<br>sense reservation in favour of the particular class or category in<br>whose favour a quota is fixed, the concepts of reservation and<br>fixation of quota drastically differ in their purport and content<br>as well as the object. Fixation of a quota in a given case cannot<br>be said to be the same as a mere reservation and whenever a<br>quota is fixed or provided for one or more of the classified group<br>or category, the candidates falling in or answering the<br>description of different classified groups in whose favour a<br>respective quota is fixed have to confine their respective claims<br>against the quota fixed for each of such category, with no one in<br>one category having any right to stake a claim against the quota<br>earmarked for the other class or category. Since we are of the<br>view that the Full Bench has correctly come to the conclusion<br>that the scheme adopted for selection of candidates for<br>admissions in question provided for a definite and fixed quota<br>for the respective classified sources of admission and the<br>reasons assigned therefor do not suffer from any infirmity<br>whatsoever to call for any interference at our hands, these<br>appeals fail and are dismissed.” | |
|---|
| | (emphasis supplied) | |
| | | |
| 14.2 | | The question with respect to reservation for inservice | |
candidates in medical colleges – post graduate courses again fell
| for consideration before this Court in the case of | Gopal D. Tirthani |
|---|
110
| (supra). | In the aforesaid case, the State of Madhya Pradesh, while |
|---|
making the Madhya Pradesh Medical and Dental PG Entrance
Examination Rules, 2002, provided for reservation of 20% seats
in PG degree/diploma courses for employees of the Government of
Madhya Pradesh (inservice). The Rules further provided that
such inservice candidates are exempted from prePG Entrance
Examination and shall be nominated for doing postgraduation in
various degree/diploma courses as per selection criteria, terms
and conditions of employer Department. The Rules further
provided that selection will be done on the basis of the individual
cumulative performance at the first, second and third MBBS
examinations if such examinations have been passed from the
same university. The Rules which were under challenge before
the High Court further provided that only those candidates who
have completed five years of service under the Government of
Madhya Pradesh and who are not serving on contractual basis
will be eligible for selection as candidates who are inservice. The
Rules further provided that for the purpose of selection of
candidates who are inservice, 40% of the marks as weightage
| would be given. The High Court struck down as | ultra vires | the |
|---|
111
PG admission (Inservice) Rules, 2002 based on the following
findings arrived at by it:
xxx xxx xxx
“11.
“( a ) There can be reservation for inservice employees for
postgraduate medical courses and reservation made for the said
employees in the 2002 Rules does not suffer from any
constitutional invalidity.
( b ) There has to be a common entrance examination for
admission in postgraduate medical courses so as to test the
comparative merit.
( c ) The ‘InService Rules’ which provide for separate and
limited examination for inservice candidates contravene the
basic tenet and principle enunciated in the Regulations framed
by the Medical Council of India and, therefore, the same are
ultra vires.
( d ) Conferral of benefit by grant of weightage to some in
service candidates/employees on the basis of their rendering
services in rural areas is hit by Article 14 of the Constitution as
well as stands in oppugnation to the Regulations framed by the
Medical Council of India and hence, is invalid and is liable to be
struck down.
( e ) The distinction made between the inservice women
employees/women candidates who have served in rural areas
for three years and other women candidates who have rendered
service in other areas is discriminatory.
( f ) The stance put forth by some of the petitioners that
there has to be some reservation for the category of employees
who are Assistant Surgeons from amongst the quota meant for
‘inservice candidates’ is devoid of any substance and hence,
deserves rejection.
( g ) The limited and separate examination which has
already been held cannot be given the stamp of approval
because we have already held that InService Candidates Rules,
2002 are unconstitutional.”
112
| | | | | | | | |
|---|
| 12. In substance, the High Court upheld the validity of<br>reservation of 20% seats out of the total in favour of inservice<br>candidates. It held that the inservice candidates and open<br>category candidates had to be subjected to one common<br>entrance test for determining the comparative merit for entrance<br>into the postgraduate courses of study, and that the holding of<br>two separate tests — one for inservice candidates and one for<br>open category candidates — was unsustainable, being in<br>contravention of the Regulations framed by the Medical Council<br>of India….” | | | | | | | |
| | | | | | | | |
| | | | | | | (emphasis supplied) | |
| Having noted the laudable purpose sought to be achieved by |
|---|
making special provisions for inservice candidates and having
noted, inservice candidates on attaining higher academic
achievements would be available to be posted in rural areas by
the State Government, this Court upheld the Rules providing
reservation for inservice candidates in PG courses. The relevant
observations are in paragraphs 19 to 21, which read as under:
The controversy in the present litigation does not
“19.
concern the open category candidates; it is confined to the in
service candidates. We, therefore, propose to preface our
discussion by determining the nature of 20% seats allocated to
the inservice candidates — whether it is by way of reservation
or quota or is a channel of entry. Our task stands simplified by
the law laid down by a threeJudge Bench decision of this Court
recently in K. Duraisamy v. State of T.N. [(2001) 2 SCC 538] The
question arose for decision in almost a similar factual
background. The seats were at the State level and not allIndia
113
| quota seats. The State Government had allocated 50% of the<br>seats exclusively for inservice candidates and left the remaining<br>50% seats as open quota i.e. to be filled in from out of such<br>candidates as were not in State Government service. The<br>classification was made as “service quota” and “open quota”, for<br>inservice candidates and other candidates respectively,<br>confining the respective class/cadre candidates to the respective<br>percentages earmarked for the two of them exclusively. The<br>Court held: | |
|---|
| (i) the Government possesses the right and<br>authority to decide from what sources the admissions in<br>educational institutions or to particular disciplines and<br>courses therein have to be made and that too in what<br>proportion; |
| (ii) that such allocation of seats in the form of<br>fixation of quota is not to be equated with the usual<br>form of communal reservation and, therefore, the<br>constitutional and legal considerations relevant to<br>communal reservations are out of place while deciding<br>the case based on such allocation of seats; |
| (iii) that such exclusive allocation and stipulation<br>of a definite quota or number of seats between inservice<br>and nonservice or private candidates provided two<br>separate channels of entry and a candidate belonging to<br>one exclusive quota cannot claim to steal a march into<br>another exclusive quota by advancing a claim based on<br>merit. Inter se merit of the candidates in each quota<br>shall be determined based on the merit performance of<br>the candidates belonging to that quota; |
| (iv) that the mere use of the word “reservation” per<br>se is not decisive of the nature of allocation. Whether it<br>is a reservation or an allocation of seats for the purpose<br>of providing two separate and exclusive sources of entry<br>would depend on the purpose and object with which the<br>expression has been used and that would be<br>determinative of the meaning, content and purport of<br>the expression. Where the scheme envisages not a mere<br>reservation but is one for classification of the sources |
114
| | from which admissions are to be accorded, fixation of<br>respective quota for such classified groups does not<br>attract applicability of considerations relevant to<br>reservation simpliciter. |
|---|
| | |
| 20. K. Duraisamy case [(2001) 2 SCC 538] was considered<br>and explained by another threeJudge Bench of this Court<br>in AIIMS Students' Union v. AIIMS [(2002) 1 SCC 428] . The<br>following observation is appropriate and apposite for the<br>purpose of the case at hand and is, therefore, extracted and<br>reproduced hereunder. The Court was considering the question<br>of allocation of seats between inservice and open category<br>candidates, the candidates in both the categories being medical<br>graduates, and not a reservation in favour of the weaker<br>sections of society or those who deserve or need to be<br>affirmatively discriminated. The Court then said: (SCC pp. 447<br>48, para 31) | | |
| “Some of them had done graduation sometime in<br>the past and were either picked up in the government<br>service or had sought for joining government service<br>because, maybe, they could not get a seat in<br>postgraduation and thereby continue their studies<br>because of shortage of seats in higher level of studies. On<br>account of their having remained occupied with their<br>service obligations, they became detached or distanced<br>from theoretical studies and therefore could not have<br>done so well as to effectively compete with fresh medical<br>graduates at the PG entrance examination. Permitting in<br>service candidates to do postgraduation by opening a<br>separate channel for admittance would enable their<br>continuance in government service after postgraduation<br>which would enrich health services of the nation.<br>Candidates in open category having qualified in<br>postgraduation may not necessarily feel attracted to<br>public services. Providing two sources of entry at the<br>postgraduation level in a certain proportion between in<br>service candidates and other candidates thus achieves the<br>laudable object of making available better doctors both in | |
115
| public sector and as private practitioners. The object<br>sought to be achieved is to benefit two segments of the<br>same society by enriching both at the end and not so<br>much as to provide protection and encouragement to one<br>at the entry level.” |
|---|
| |
| 21. To withstand the test of reasonable classification<br>within the meaning of Article 14 of the Constitution, it is well<br>settled that the classification must satisfy the twin tests: (i) it<br>must be founded on an intelligible differentia which<br>distinguishes persons or things placed in a group from those left<br>out or placed not in the group, and (ii) the differentia must have<br>a rational relation with the object sought to be achieved. It is<br>permissible to use territories or the nature of the objects or<br>occupations or the like as the basis for classification. So long as<br>there is a nexus between the basis of classification and the<br>object sought to be achieved, the classification is valid. We have,<br>in the earlier part of the judgment, noted the relevant statistics<br>as made available to us by the learned AdvocateGeneral under<br>instructions from Dr Ashok Sharma, Director (Medical Services),<br>Madhya Pradesh, present in the Court. The rural health services<br>(if it is an appropriate expression) need to be strengthened. 229<br>community health centres (CHCs) and 169 firstreferral units<br>(FRUs) need to be manned by specialists and block medical<br>officers who must be postgraduates. There is nothing wrong in<br>the State Government setting apart a definite percentage of<br>educational seats at postgraduation level consisting of degree<br>and diploma courses exclusively for the inservice candidates.<br>To the extent of the seats so set apart, there is a separate and<br>exclusive source of entry or channel for admission. It is not<br>reservation. Inservice candidates, and the candidates not in the<br>service of the State Government, are two classes based on an<br>intelligible differentia. There is a laudable purpose sought to be<br>achieved. Inservice candidates, on attaining higher academic<br>achievements, would be available to be posted in rural areas by<br>the State Government. It is not that an inservice candidate<br>would leave the service merely on account of having secured a<br>postgraduate degree or diploma though secured by virtue of | |
116
| being in the service of the State Government. If there is any<br>misapprehension, the same is allayed by the State Government<br>obtaining a bond from such candidates as a condition precedent<br>to their taking admission that after completing PG<br>degree/diploma course they would serve the State Government<br>for another five years. Additionally, a bank guarantee of rupees<br>three lakhs is required to be submitted along with the bond.<br>There is, thus, clearly a perceptible reasonable nexus between<br>the classification and the object sought to be achieved.” | | | | | | | | |
|---|
| | | | | | | | (emphasis supplied) | |
| However, this Court has further held that there shall be only |
|---|
one common entrance test. In paragraphs 25 to 28, it is held as
under:
“25. The eligibility test, called the entrance test or the
prePG test, is conducted with dual purposes. Firstly, it is held
with the object of assessing the knowledge and intelligence
quotient of a candidate whether he would be able to prosecute
postgraduate studies if allowed an opportunity of doing so;
secondly, it is for the purpose of assessing the merit inter se of
the candidates which is of vital significance at the counselling
when it comes to allotting the successful candidates to different
disciplines wherein the seats are limited and some disciplines
are considered to be more creamy and are more coveted than
the others. The concept of a minimum qualifying percentage
cannot, therefore, be given a complete goby. If at all there can
be departure, that has to be minimal and that too only by
approval of experts in the field of medical education, which for
the present are available as a body in the Medical Council of
India.
26. The Medical Council of India, for the present, insists,
through its Regulations, on a common entrance test being
conducted whereat the minimum qualifying marks would be
50%. The State of Madhya Pradesh must comply with the
117
requirements of the Regulations framed by the Medical Council
of India and hold a common entrance test even if there are two
separate channels of entry and allow clearance only to such
candidates who secure the minimum qualifying marks as
prescribed by the MCI Regulations. If the State has a case for
making a departure from such rule or for carving out an
exception in favour of any classification then it is for the State
to represent to the Central Government and/or the Medical
Council of India and make out a case of justification
consistently with the aforequoted observation of this Court
in Dayanand Medical College and Hospital case [(2001) 8 SCC
664] .
27. The inservice candidates may have been away from
academics and theories because of being in service. Still they
need to be assessed as eligible for entrance in PG. For taking up
such examination, they must either keep updating themselves
regularly or concentrate on preparatory studies to entrance
examinations but without sacrificing or compromising with their
obligations to the people whom they are meant to serve on
account of being in State services.
28. Clearly, the State of Madhya Pradesh was not justified
in holding and conducting a separate entrance test for in
service candidates. Nor could it have devised a formula by
combining clauses ( i ) and ( iii ) of Regulation 9(1) by resorting to
clause ( iv ). Recourse can be had to clause ( iii ) when there is only
one university . When there is only one university in one State ,
the standard of assessment can reasonably be assumed to have
been the same for assessing the academic merit of the students
passing from that university. When there are more universities
than one in a State, the standards of different universities and
their assessment methods cannot obviously be uniform and
may differ. Then it would be futile to assess the comparative
merit of individual performances by reference to clause ( iii ). The
High Court is, therefore, right in forming an opinion that in the
State of Madhya Pradesh, where five universities exist, the
method of evaluation contemplated by clause ( iii ) is not available
118
either in substitution of or in addition to clause ( i ). The
candidates qualified at the prePG or PG entrance test held in
common for inservice and open category candidates, would
then be divided into two separate merit lists to be prepared for
the two categories and merit inter se of the successful
candidates shall be available to be assessed separately in the
two respective categories.”
(emphasis supplied)
Ultimately, in paragraph 36, this Court concluded as under:
| “36. We sum up our conclusions as under: | |
|---|
| 1. In the State of Madhya Pradesh allocation of 20%<br>seats in postgraduation in the universities of Madhya<br>Pradesh for inservice candidates is not a reservation; it is<br>a separate and exclusive channel of entry or source of<br>admission, the validity whereof cannot be determined on<br>the constitutional principles applicable to communal<br>reservations. Such two channels of entry or two sources of<br>admission is a valid provision. |
| 2. There can be only one common entrance test for<br>determining eligibility for postgraduation for inservice<br>candidates and those not in service. The requirement of<br>minimum qualifying marks cannot be lowered or relaxed<br>contrary to the Medical Council of India Regulations<br>framed in this behalf. |
| 3. In the State of Madhya Pradesh there are five<br>universities i.e. there are universities more than one.<br>Regulation 9(2)(iii) cannot be made use of in the State of<br>Madhya Pradesh either singly or in combination with<br>clause (i) for determining the eligibility for entrance into<br>PG courses. |
| 4. It is permissible to assign a reasonable weightage<br>to services rendered in rural/tribal areas by the inservice<br>candidates for the purpose of determining inter se merit<br>within the class of inservice candidates who have |
119
| | qualified in the prePG test by securing the minimum<br>qualifying marks as prescribed by the Medical Council of<br>India. | | | | | | | |
|---|
| | | | | | | | | |
| | | | | | | | (emphasis supplied) | |
| 14.3 | | The question with respect to reservation and/or special |
|---|
provisions for admission to PG courses with respect to inservice
candidates again fell for consideration before this Court in the
| case of | Sudhir N (supra) | . In the said decision, this Court also |
|---|
considered Regulation 9 of the MCI Regulations, 2000, which
provided that general category candidates must secure 50%
marks in the common entrance examination. In the aforesaid
| case of | Sudhir N (supra) | , 40% of the seats available in the State of |
|---|
Kerala for postgraduate medical admission were reserved for in
service doctors serving in the Health Service Department, Medical
College Lecturers and doctors serving in the ESI department of
the State. However, it was further provided that the admission
shall be made strictly on the basis of inter se seniority of the in
service candidates who have appeared in the common entrance
examination for the postgraduate medical admission and have
obtained the minimum eligibility benchmark in the test in terms
of the Regulations framed by the MCI. Writ petitions were filed
120
before the High Court on the ground that the State legislature
could not enact a law that would make selection for admission to
the PG courses dependent solely on the seniority of the inservice
candidates without prescribing the minimum conditions of
eligibility for the candidates concerned. The High Court in
principle agreed that the admission to PG courses should be
made only on the basis of inter se seniority provided the
candidates appear in the common entrance examination and
qualify.
| After considering various decisions of this Court, ultimately, |
|---|
this Court upheld the decision of the High Court that inasmuch
as the provision of Section 5(4) of the 2008 Act which provides for
selection of candidates to be from the one stipulated by the MCI
Regulations, was beyond the legislative competence of the State
Legislature. However, upheld the reservation for inservice
candidates after considering the decision of this Court in the case
| of | Gopal D. Tirthani (supra) | holding that inservice candidates to |
|---|
be treated as a separate channel for admission to postgraduate
courses within that category. Also, admission can be granted
only on the basis of merit. It is to be noted that in the said
121
decision, this Court observed that Regulation 9 of the Regulations
2000 is a complete code by itself. However, the said observation
can be said to be confined to the controversy before the Court and
the reference which was made shall be considered and dealt with
hereinbelow at an appropriate stage.
| Thus, making special provision for inservice candidates and |
|---|
the provisions for providing reservation for inservice candidates
in postgraduate medical courses have been upheld and approved
by this Court in the aforesaid decisions.
14.4 Even in the case of Dinesh Singh Chauhan (supra) also, while
upholding Regulation 9(IV) which provides weightage to the extent
of 10% of the marks obtained by the candidates in the
competition test and to the extent of maximum 30% marks, this
Court has in paragraph 44 has observed as under:
| “44. Dealing with this contention, we find that the setting<br>in which the proviso to clause (IV) has been inserted is of some<br>relevance. The State Governments across the country are not in<br>a position to provide healthcare facilities in remote and difficult<br>areas in the State for want of doctors. [Rural Health Statistics<br>for 20142015 published by the Government of India, Ministry<br>of Health & Family Welfare depicting the shortage of doctors in<br>rural areas particularly State of Uttar Pradesh, which reads<br>thus: | | | | | | |
|---|
| | | | | | | |
| Qualification<br>s | | Required | Sanctioned | In<br>position | Vacant | Short<br>fall | |
| MBBS | | 3497 | 4509 | 2209 | 2300 | 1288 | |
122
| Doctors at<br>Primary<br>Health<br>Centres<br>(PHCs) | | | | | | | |
|---|
| Specialists<br>at<br>Community<br>Health<br>Centres<br>(CHCs) | | 3092 | 2099 | 484 | 1615 | 2608 | |
| | | | | | | |
| | | | | | | |
| In fact there is a proposal to make oneyear service for MBBS<br>students to apply for admission to postgraduate courses, in<br>remote and difficult areas as compulsory. That is kept on hold,<br>as was stated before the Rajya Sabha. The provision in the form<br>of granting weightage of marks, therefore, was to give incentive<br>to the inservice candidates and to attract more graduates to<br>join as medical officers in the State healthcare sector. The<br>provision was first inserted in 2012. To determine the academic<br>merit of candidates, merely securing high marks in NEET is not<br>enough. The academic merit of the candidate must also reckon<br>the services rendered for the common or public good. Having<br>served in rural and difficult areas of the State for one year or<br>above, the incumbent having sacrificed his career by rendering<br>services for providing healthcare facilities in rural areas, deserve<br>incentive marks to be reckoned for determining merit. Notably,<br>the State Government is posited with the discretion to notify<br>areas in the given State to be remote, tribal or difficult areas.<br>That declaration is made on the basis of decision taken at the<br>highest level; and is applicable for all the beneficial schemes of<br>the State for such areas and not limited to the matter of<br>admissions to postgraduate medical courses. Not even one<br>instance has been brought to our notice to show that some<br>areas which are not remote or difficult areas has been so<br>notified. Suffice it to observe that the mere hypothesis that the<br>State Government may take an improper decision whilst<br>notifying the area as remote and difficult, cannot be the basis to<br>hold that Regulation 9 and in particular proviso to clause (IV) is<br>unreasonable. Considering the above, the inescapable<br>conclusion is that the procedure evolved in Regulation 9 in<br>general and the proviso to clause (IV) in particular is just,<br>proper and reasonable and also fulfils the test of Article 14 of<br>the Constitution, being in larger public interest.” | | | | | | |
| | | | | | | |
| (emphasis supplied) | | | | | | |
| | | | | | | |
123
| 15. | | The object and purpose of providing separate source of |
|---|
admission for inservice candidates is noted by this Court in the
| cases of | K. Duraisamy (supra); |
|---|
Sudhir N (supra) . Even the same is noted by this Court in the
case of while upholding the
Dinesh Singh Chauhan (supra)
reservation for inservice doctors in postgraduate diploma
courses. It has been consistently held by this Court that there is
a legitimate and rational basis in providing a separate
channel/source of entry for inservice candidates in order to
encourage them to offer their services and expertise to the State.
There is a sufficient nexus with the larger goal of equalization of
educational opportunities and to sufficiently prefer the doctors
serving in the various hospitals run and maintained out of public
funds, in the absence of which there would be serious dearth of
qualified Postgraduate doctors to meet the requirements of the
common public. It is stated that the Government is facing public
health crisis. The effective and competent medical treatment is
not available in the rural and difficult areas. Inservice doctors
who pursue higher studies would naturally serve in rural and
124
difficult areas if such incentive in the form of reservation is
provided.
15.1 The action of the State to provide for the inservice quota is
in the discharge of its positive constitutional obligations to
promote and provide better health care facilities for its citizens by
upgrading the qualifications of the existing inservice doctors so
that the citizens may get more specialized health care facility.
Such action is in discharge of its constitutional obligations as
provided in Article 47 of the Constitution of India, which is the
corresponding fundamental right of the citizens protected under
Article 21 of the Constitution of India.
15.2 It is settled law that Article 21 of the Constitution of India
confers on the citizens of India a fundamental right to life and
personal liberty. Right to health is integral part of the Right to
life and is a facet of Article 21. In the case of Devika Biswas v.
22
Union of India , after considering its earlier decisions in the case
23
of CESC Ltd. v. Subhash Chandra Bose and in the case of
24
Paschim Banga Khet Mazdoor Samity v. State of West Bengal , it
is observed in paras 107, 108 and 109 as under:
22 (2016) 10 SCC 726
23 (1992) 1 SCC 441
24 (1996) 4 SCC 37
125
“107. It is well established that the right to life under
Article 21 of the Constitution includes the right to lead a
dignified and meaningful life and the right to health is an
integral facet of this right. In CESC Ltd. v. Subhash
Chandra Bose (1992) 1 SCC 441 dealing with the right to
health of workers, it was noted that the right to health
must be considered an aspect of social justice informed
by not only Article 21 of the Constitution, but also the
Directive Principles of State Policy and international
covenants to which India is a party. Similarly, the bare
minimum obligations of the State to ensure the
preservation of the right to life and health were
enunciated in Paschim Banga Khet Mazdoor Samity v.
State of W.B. (1996) 4 SCC 37.
108. In Bandhua Mukti Morcha v. Union of India
(1984) 3 SCC 161, this Court underlined the obligation of
the State to ensure that the fundamental rights of weaker
sections of society are not exploited owing to their
position in society.
109. That the right to health is an integral part of the
right to life does not need any repetition.”
| 15.3 | | In a recent decision in the case of | Association of Medical |
|---|
observed and held by this Court in paragraphs 25 and 26 as
under:
| “25. | | It is for the State to secure health to its citizens as its | |
|---|
| primary duty. No doubt the Government is rendering this | | | |
| obligation by opening government hospitals and health | | | |
| centres, but in order to make it meaningful, it has to be within | | | |
| the reach of its people, as far as possible, to reduce the queue | | | |
| of waiting lists, and it has to provide all facilities to employ | | | |
| best of talents and tone up its administration to give effective | | | |
| contribution, which is also the duty of the government (State | | | |
| of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117). | | | |
26.Right to health is integral to the right to life. Government
has a constitutional obligation to provide health facilities
25 (2019) 8 SCC 607
126
| (state of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83). | |
|---|
| The fundamental right to life which is the most precious | |
| human right and which forms the ark of all other rights must | |
| therefore be interpreted in a broad and expansive spirit so as | |
| to invest it with significance and vitality which may endure for | |
| years to come and enhance the dignity of the individual and | |
| the worth of the human person. The right to life enshrined in | |
| Article 21 cannot be restricted to mere animal existence. It | |
| means something much more than just physical survival. The | |
| right to life includes the right to live with human dignity and | |
| all that goes along with it, namely, the bare necessaries of life | |
| such as adequate nutrition, clothing and shelter, and facilities | |
| for reading, writing and expressing oneself in diverse forms, | |
| freely moving about and mixing and commingling with fellow | |
| human beings.” | |
| 15.4 | | A healthy body is the very foundation for all human |
|---|
activities. In a welfare State, therefore, it is the obligation of the
State to ensure the creation and the sustaining of conditions
congenial to good health. Maintenance and improvement of
public health have to rank high as these are indispensable to the
very physical existence of the community and on the betterment
of these depends the building of the society of which the
Constitution makers envisaged. It is observed by this Court in
| the case of | Vincent Panikurlangara v. Union of India |
|---|
“attending to public health is of high priority, perhaps the one at
the top”. It is the primary duty of a welfare State to ensure that
medical facilities are adequate and available to provide treatment.
26 AIR 1987 SC 990
127
| 15.5 | | In the case of | CESC Ltd. (supra) | , this Court has observed |
|---|
and held that right to health is a fundamental right. It went
further and observed that health is not merely absence of
sickness. The term health implies more than an absence of
sickness. Medical care and health facilities not only protect
against sickness but also ensure stable manpower for economic
development. Facilities of health and medical care generate
devotion and dedication to give the workers’ best, physically as
well as mentally, in productivity.
| 15.6 | | In the case of | Municipal Council, Ratlam v. Vardhichand |
|---|
this Court through Justice Krishna Iyer observed: “The State will
realize that Article 47 makes it a paramount principle of
governance that steps are taken for the improvement of public
health as amongst its primary duties.
| 15.7 | | Even otherwise, the power of the State under Entry 6, List II |
|---|
of Schedule VII to legislate in the subject matter of public health
and hospital is exclusive.
27 1980 Cri LJ 1075 = 1981 SCR (1) 97 = AIR 1980 SC 1622
128
| 15.8 | | Article 47 of the Constitution reiterates the constitutional |
|---|
obligation imposed on the State to improve public health. The
Directive Principle provides as follows:
| “47. Duty of the State to raise the level of nutrition and | |
|---|
| the standard of living and to improve public health – The | |
| State shall regard the raising of the level of nutrition and | |
| the standard of living of its people and the improvement | |
| of public health as among its primary duties and, in | |
| particular, the State shall endeavour to bring about | |
| prohibition of the consumption except for medicinal | |
| purposes of intoxicating drinks and of drugs which are | |
| injurious to health.” | |
15.9 As observed hereinabove, Article 21 of the Constitution of
India imposes an obligation on the State to safeguard the life of
every person. Preservation of human life is thus of paramount
importance. Thus, when the State provides a separate source of
admission for inservice doctors as a distinct class and within the
State quota and the object is laudable, the State is within its
power to provide such separate source of admission in exercise of
the powers under Entry 25 List III, read with Entry 6, List II. It
cannot be said that there is no nexus with the laudable object of
meeting the requirement of qualified postgraduate doctors for the
public health services, more particularly, in the rural, tribal and
difficult areas. As such, there is no conflict between the power of
129
the Union and the State. As observed hereinabove, the occupied
filed of Union legislation in exercise of power under Entry 66, List
I is related to minimum standards of medical education and the
State is providing the inservice quota without impinging the
prescribed minimum standards. It is a settled proposition of law
that in case of two entries might be overlapping, in that case, the
interpretation must be in furtherance of achieving the ultimate
object, in the present case to provide better health care in the
rural, tribal and difficult areas. Any interpretation which would
negate and/or become nugatory the other entry, is to be avoided.
There must be a harmonious reading between the two entries. In
the present case, as such and as observed hereinabove, there
shall not be any conflict between the power of the Union and the
State, while exercising the powers under Entry 66 List I by the
Union and under Entry 25 List III by the States. Therefore, as
such, the State is within its power and is empowered to make
reservation in the seats of the postgraduate medical courses,
more particularly, for inservice doctors.
15.10 In the federal structure, the State, as well as the
Parliament, have a constitutional directive for the upliftment of
130
Scheduled Castes, Scheduled Tribes, and socially and backward
classes. Therefore, the State Government have the right to
provide reservation and in the field of employment and education,
looking to the specific/special need of public requirement in the
particular area. There is no constitutional bar to take further
affirmative action as taken by the State Government in the cases
to achieve the goal. Therefore, by allotting a specific percentage
within its State quota and to provide preferential treatment to a
particular class, cannot be said to be beyond the legislative
competence of the State. On the contrary, as observed
hereinabove, the State is within its power and authority to
provide such a preferential treatment to provide a better public
health in the rural, tribal and hilly areas.
16. It is to be noticed that earlier also the concerned States did
provide reservation for inservice government medical
officers/doctors and the concerned States, as such, achieved the
goal of meeting the public health services in the rural, tribal and
difficult areas. However, because of the misinterpretation of the
MCI Regulations, 2000, the problems have arisen.
131
17. Even otherwise, Regulation 9 of the MCI Regulations, 2000
to the extent not providing for any reservation for inservice
candidates working in the rural, tribal and difficult areas can be
declared ultra vires on the ground of being arbitrary,
discriminatory and violative of Articles 14 and 21 of the
Constitution of India. It is required to be noted that Regulation 9,
more particularly Regulation 9(VII) makes provision for
reservation for inservice candidates for admission to
postgraduate diploma courses only. However, there is no reason
coming out of either from the Regulations or in any form of
material produced by the MCI showing as to on what basis MCI
takes a stand that similar inservice reservation is not permissible
for admission to postgraduate degree courses. Therefore, if the
very concept of inservice reservation is permissible and
incorporated in the MCI Regulations, 2000, opposition to similar
reservation for postgraduate degree courses is unreasonable and
irrational.
18. Now so far as the observations made by this Court in the
cases of Sudhir N (supra) and Dinesh Singh Chauhan (supra) that
the MCI Regulations, 2000 is a complete code is concerned, it is
132
clear that the observations made by this Court in the case of
Sudhir N (supra) that Regulation 9 of the MCI Regulations, 2000
is a complete code is required to be considered with reference to
the context and controversy before the Court.
18.1 In the case of , the State law which was
Sudhir N (supra)
under consideration by the Court provided that the seniority list
of selected candidates to be prepared directly based on seniority
of inservice doctors, irrespective of marks obtained by such in
service candidates in common PG entrance examination. In that
context, this Court held that Regulation 9 of MCI Regulations,
2000 is the only effective and permissible basis for granting
admission to postgraduate medical courses and therefore it was
observed that Regulation 9 of MCI Regulations, 2000 is a
complete code. Therefore, the observations in the case of Sudhir
N (supra) that Regulation 9 is a complete code in itself may not be
construed with respect to providing reservation and/or making
special provision like providing separate source of entry for in
service candidates within the State quota and subject to fulfilling
of other criteria fixed and provided by the MCI. Therefore, the
133
observations made by this Court in the case of Dinesh Singh
Chauhan (supra) and as held by this Court in the case of Sudhir N
that Regulation 9 is a complete code in itself cannot be
(supra)
accepted and is held to be not a good law.
19. When we consider the subsequent amendment in the year
2018, as made by notification dated 12.07.2018, it is provided
that a medical college/medical institution shall be entitled to seek
equal number of Post Graduate Degree (MD/MS) seats by
surrendering recognised diploma seats in corresponding course.
In view of the above, it has so happened that by and large in every
State the diploma seats are converted in PG Degree (MD/MS)
seats by surrendering recognised diploma seats. The resultant
effect is that inservice candidates/doctors shall not be entitled to
any seat even in PG Diploma courses which has been provided
under Regulation 9(VII) of MCI Regulations 2000, as amended
from time to time. Therefore, ultimately, it will affect the public
health and the common people in the rural, tribal and hilly areas
where there is a dearth of good and highly qualified doctors.
Therefore, if the rights of the States to provide such reservation
for inservice doctors in postgraduate degree/diploma courses is
134
not recognised, in that case, the ultimate sufferer would be the
public health and the common people, particularly the people
residing in rural, tribal and hilly areas.
Conclusions:
20. The sum and substance of the above discussion and
conjoint reading of the decisions referred to and discussed
hereinabove, our conclusions are as under:
1) that Entry 66 List I is a specific entry having a
very limited scope;
2) it deals with “coordination and determination
of standards” in higher education;
3) the words “coordination and determination of
standards would mean laying down the said
standards;
4) the Medical Council of India which has been
constituted under the provisions of the Indian
Medical Council Act, 1956 is the creature of the
statute in exercise of powers under Entry 66 List I
and has no power to make any provision for
reservation, more particularly, for inservice
135
candidates by the concerned States, in exercise of
powers under Entry 25 List III;
5) that Regulation 9 of MCI Regulations, 2000
does not deal with and/or make provisions for
reservation and/or affect the legislative competence
and authority of the concerned States to make
reservation and/or make special provision like the
provision providing for a separate source of entry for
inservice candidates seeking admission to
postgraduate degree courses and therefore the
concerned States 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 Entry 25 of List III;
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 Entry 66 List I.;
7) Regulation 9 of MCI Regulations, 2000 to the
extent tinkering with reservation provided by the
136
State for inservice candidates is ultra vires on the
ground that it is arbitrary, discriminatory and
violative of Articles 14 and 21 of the Constitution of
India;
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 Entry 25, List III. However, it is
observed that policy must provide that subsequent
to obtaining the postgraduate degree by the
concerned inservice doctors 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;
and
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.
137
21. In view of our above discussions and conclusions, the Civil
Appeals are allowed in the aforesaid terms and the impugned
judgment of the High Court at Calcutta dated 01.10.2019 passed
in MAT No. 1222 of 2019, connected with, MAT No. 1223 of 2019,
MAT 1224 of 2019, MAT 1239/2019, MAT 1245/2019, MAT 1267
of 2019 and MAT 1333 of 2019 is hereby set aside. Writ Petition
Nos. 196/2018 connected with Writ Petition No.252/2018, Writ
Petition No. 295/2018 and Writ Petition No. 293/2018 stand
allowed in the aforesaid terms. All connected interlocutory
applications stand disposed of.
Before parting we acknowledge and appreciate the
cooperation by the learned Senior Counsels and other Advocates
appearing on behalf of their respective parties and assisting the
Court in concluding hearing in such an important matter,
through virtual court in a time when the entire world is facing
pandemic and difficult time. Such a gesture and cooperation is
highly appreciable.
PER ANIRUDDHA BOSE, J.
Permission to file petition for special
leave to appeal is granted in the matter
138
registered as D-42890/19. Leave granted in all
the petitions for special leave to appeal.
2. There are altogether seventeen main
proceedings which are before us, all involving
a common question of law. That question is as
to whether under the scheme of our Constitution
and the provisions of the Postgraduate Medical
Education Regulations, 2000 (Regulations, 2000)
made by the Medical Council of India (Council)
under Section 33 of the Indian Medical Council
Act, 1956, a State has any power to reserve
seats for admission in postgraduate medical
degree courses for the medical professionals
working in governmental organisations within
that State. Such medical professionals we shall
refer to henceforth in this judgment as “in-
service doctors”. We find that this is the term
commonly used to describe them in medico-
administrative parlance in different parts of
139
the country. Legislations pertaining to medical
education in this country is primarily guided
by two entries of the Seventh Schedule to the
Constitution of India, being Entry 66 of List I
(Union List) and Entry 25 of List III
(Concurrent List). These entries read:-
“ Entry 66 of List I - Co-ordination
and determination of standards in
institutions for higher education
or research and scientific and
technical institutions.”
“ Entry 25 of List III - Education,
including technical education,
medical education and universities,
subject to the provisions of
entries 63, 64, 65 and 66 of List
I; vocational and technical
training of labour.”
The conflict between the power of the Union
and the State in this set of cases does not
arise out of any primary legislation, but
emerges out of subordinate or delegated
legislations. The respective States have issued
Executive Orders to introduce such reservation.
140
The States of Kerala and West Bengal, have,
however traced their power of reservation to
certain State legislations and Rules made in
that behalf. But these factors are not of much
significance for adjudication of these matters.
We shall deal with the subject-controversy
applying the established principles for
resolving disputes arising out of
interpretation of statutory instruments in
relation to legislative competence of the Union
and the States.
3. Reference has also been made in course of
hearing of these matters before us to two other
entries in the State list for tracing the
source of State’s power to effect such
reservation. Entry 6 in the State List covers
“Public Health and Sanitation; hospitals and
dispensaries”. Entry 32 of the same List
specifies “Incorporation, regulation and
141
winding up of corporation, other than those
specified in List I, and universities,
unincorporated trading, literary, scientific,
religious and other societies and associations;
co-operative societies.” Learned counsel
appearing for some of the parties defending the
reservation have sought to anchor the
legislative power of the States to make
reservation of this nature on these entries as
well. But we do not accept this submission. We
are of the view that admission to postgraduate
degree courses in medical education cannot be
linked to the subject-heads specified against
the said two entries. The consequence of
reservation of this nature may have impact on
functioning of the institutes vis-à-vis the
items referred to in the said two entries, but
the said entries cannot be linked to any
statutory instrument originating from a State
142
providing for reservation of in-service doctors
in postgraduate medical degree courses. We
also would like to make it clear here that the
expression “reservation” we are using in this
judgment is not “reservation” in the manner the
same is referred to in the Constitution,
providing for compensatory discrimination. But
so far as the subject-controversy is concerned,
this expression really implies a separate
source of entry to the postgraduate medical
degree courses. We shall explain this
distinction in greater detail later in this
judgment.
4 . Under the 1956 Act, different Rules and
Regulations have been made to carry out the
purposes of the said statute. Section 10D
thereof mandates a common entrance examination
both at the undergraduate and postgraduate
level. What concerns us in the present set of
143
proceedings is Clause 9 of the 2000 Regulations
which contains procedures for selection of
candidates for postgraduate medical courses.
This clause along with its sub-clauses has
undergone certain amendments from time to time
and has been brought in its present shape by
th
way of a notification published on 5 April,
2018. The said clause, as it stands now,
stipulates:-
“9. Procedure for selection of
candidate for postgraduate courses
shall be as follows:-
(1) There shall be a uniform
entrance examination to all
medical educational institutions
at the Postgraduate level namely
`National Eligibility-cum-Entrance
Test' for admission to
postgraduate courses in each
academic year and shall be
conducted under the overall
supervision of the Ministry of
Health & Family Welfare,
Government of India.
(2) The "designated authority" to
conduct the `National Eligibility-
cum-Entrance Test' shall be the
144
National Board of Examination or
any other body/organization so
designated by the Ministry of
Health and Family Welfare,
Government of India.
(3) In order to be eligible for
admission to Postgraduate Course
for an academic year, it shall be
necessary for a candidate to
obtain minimum of marks at 50th
percentile in the `National
Eligibility-Cum-Entrance Test for
Postgraduate courses held for the
said academic year. However, in
respect of candidates belonging to
Scheduled Castes, Scheduled
Tribes, and Other Backward
Classes, the minimum marks shall
be at 40th percentile. In respect
of candidates with benchmark
disabilities specified under the
Rights of Persons with
Disabilities Act, 2016, the
th
minimum marks shall be at 45
percentile for General Category
th
and 40 percentile for SC/ST/OBC.
The percentile shall be determined
on the basis of highest marks
secured in the All India Common
merit list in National
Eligibility-cum-Entrance Test for
Postgraduate courses.
Provided when sufficient number of
candidates in the respective
categories fail to secure minimum
marks as prescribed in National
Eligibility-cum-Entrance Test held
for any academic year for
admission to Postgraduate Courses,
the Central Government in
145
consultation with Medical Council
of India may at its discretion
lower the minimum marks required
for admission to Post Graduate
Course for candidates belonging to
respective categories and marks so
lowered by the Central Government
shall be applicable for the
academic year only.
(4) The reservation of seats in
Medical Colleges/institutions for
respective categories shall be as
per applicable laws prevailing in
States/Union Territories. An all
India merit list as well as State-
wise merit list of the eligible
candidates shall be prepared on
the basis of the marks obtained in
National Eligibility-cum-Entrance
Test and candidates shall be
admitted to Postgraduate Courses
from the said merit lists only.
Provided that in determining the
merit of candidates who are in
service of government/public
authority, weightage in the marks
may be given by the
Government/Competent Authority as
an incentive upto 10% of the marks
obtained for each year of service
in remote and/or difficult areas
or Rural areas upto maximum of 30%
of the marks obtained in National
Eligibility-cum Entrance Test. The
remote and/or difficult areas or
Rural areas shall be as notified
by State Government/Competent
authority from time to time."
(5) 5% seats of annual sanctioned
intake capacity shall be filled up
by persons with benchmark
146
disabilities in accordance with
the provisions of the Rights of
Persons with Disabilities Act,
2016, based on the merit list of
National Eligibility-Cum-Entrance
Test for admission to Postgraduate
Medical Courses.
In order to be eligible for
admission to Postgraduate Course
for an academic year, it shall be
necessary for a candidate to
obtain minimum of marks at
50thpercentile in the `National
Eligibility-Cum-Entrance Test’ for
Postgraduate courses held for the
said academic year. However, in
respect of candidates belonging to
Scheduled Castes, Scheduled
Tribes, and Other Backward
Classes, the minimum marks shall
be at 40th percentile. In respect
of candidates with benchmark
disabilities specified under the
Rights of Persons with
Disabilities Act, 2016, the
minimum marks shall be at 45th
percentile for General Category
and 40th percentile for SC/ST/OBC.
(6) No candidate who has failed to
obtain the minimum eligibility
marks as prescribed in Sub-Clause
(3) above shall be admitted to any
Postgraduate courses in the said
academic year.
(7) In non-Governmental medical
colleges/institutions, 50% (Fifty
Percent) of the total seats shall
be filled by State Government or
the Authority appointed by them,
and the remaining 50% (Fifty
Percent) of the seats shall be
147
filled by the concerned medical
colleges/institutions on the basis
of the merit list prepared as per
the marks obtained in National
Eligibility-cum-Entrance Test."
(8) 50% of the seats in
Postgraduate Diploma Courses shall
be reserved for Medical Officers
in the Government service, who
have served for at least three
years in remote and /or difficult
areas and / or Rural areas. After
acquiring the Postgraduate
Diploma, the Medical Officers
shall serve for two more years in
remote and /or difficult areas and
/ or Rural areas as defined by
State Government/Competent
authority from time to time.
(9) The Universities and other
authorities concerned shall
organize admission process in such
a way that teaching in broad
speciality postgraduate courses
starts by 1st May and for super
speciality courses by 1st August
each year. For this purpose, they
shall follow the time schedule
indicated in Appendix-III.
(10) There shall be no admission
of students in respect of any
academic session beyond 31st May
for postgraduate courses and 31st
August for super speciality
courses under any circumstances.
The Universities shall not
register any student admitted
beyond the said date.
(11) No authority / institution
shall admit any candidate to any
postgraduate medicine course in
148
contravention of the criteria /
procedure as laid down by these
Regulations and / or in violation
of the judgements passed by the
Hon'ble Supreme Court in respect
of admissions. Any candidate
admitted in contravention /
violation of aforesaid shall be
discharged by the Council
forthwith. The authority /
institution which grants admission
to any student in contravention /
violation of the Regulations and /
or the judgements passed by the
Hon'ble Supreme Court, shall also
be liable to face such action as
may be prescribed by the Council,
including surrender of seats
equivalent to the extent of such
admission made from its sanctioned
intake capacity for the succeeding
academic year / years.]”
5. The disputes in these matters largely
centre around sub-clause (4) and (8) of the
said clause. The content thereof subsisted in
the said Regulations in the form of sub-clauses
(IV) and (VII) of Clause 9 of the 2000
Regulations in substantially same form, when
the said clause was earlier amended, by a
th
Notification dated 15 February, 2012. Sub-
149
clauses (IV) and (VII) of Clause 9 of the 2000
Regulations stood in terms of the aforesaid
notification as:
“IV. The reservation of seats in
medical colleges/institutions for
respective categories shall be as per
applicable laws prevailing in
States/Union Territories. An all India
merit list as well as State-wise merit
list of the eligible candidates shall
be prepared on the basis of the marks
obtained in National Eligibility-cum-
Entrance Test and candidates shall be
admitted to Post Graduate courses from
the said merit lists only.
Provided that in determining the
merit of candidates who are in service
of government/public authority,
weightage in the marks may be given by
the Government/Competent Authority as
an incentive at the rate of 10% of the
marks obtained for each year of service
in remote and/or difficult areas upto
the maximum of 30% of the marks
obtained in National Eligibility-cum-
Entrance Test. The remote and difficult
areas shall be as defined by State
Government/Competent authority from
time to time.
VII. 50% of the seats in Post Graduate
Diploma Courses shall be reserved for
Medical Officers in the Government
Service, who have served for at least
three years in remote and/or difficult
150
areas. After acquiring the PG Diploma,
the Medical Officers shall serve for
two more years in remote and/or
difficult areas as defined by State
Government/Competent authority from
time to time.”
6 . There has been another development
impacting the prospects of in-service doctors
in pursuing higher educational qualifications.
The Medical Council of India (MCI) has started
permitting conversion of seats in post-graduate
diploma course to “degree-seats” from July,
2018. So far as the State of Tamil Nadu is
concerned, (who are the respondent no.3 in Writ
Petition(civil) No. 196 of 2018) of the 545
post-graduate diploma seats, 542 seats have
been converted into seats for post-graduate
degree courses. This has been brought to our
notice by the learned Senior Counsel for the
State of Tamil Nadu, Mr. C.S. Vaidyanathan and
Mr. V. Giri. Such conversion, we are apprised,
151
is being permitted by virtue of an amendment
brought by the MCI to “The Opening of a New or
Higher Course of Study or Training (including
Post-graduate Course of Study or Training) and
Increase of Admission Capacity in any Course of
Study or Training (including Post-graduate
Course of Study or Training) Regulations 2000. ”
This amendment permits medical colleges or
institutions to surrender their postgraduate
diploma seats to be replaced by postgraduate
degree seats. The said amendment was brought
about by a notification No.MCI-18(1)/2018-
th
Med./122294 dated 12 July 2018, in exercise
of power under Section 33 of the 1956 Act.
7 . These proceedings originate from five
states, being Haryana, Kerala, Maharashtra,
West Bengal and Tamil Nadu. These States have
subsisting provisions for reservation of in-
service doctors on the basis of different forms
152
of statutory instruments. In Writ Petition
(Civil) No.196 of 2018, in which the
petitioners are Tamil Nadu Medical Officers’
Association and two in-service doctors of that
State who had appeared in the National
Eligibility-cum-Entrance Test (NEET) in the
year 2018 for admission to postgraduate degree
course for the academic year 2018-19. This writ
petition was filed in the month of March 2018,
before the 2018 amendment of 2000 Regulations
came into operation. But sub-clause IV thereof,
as it prevailed then remains unaltered. Clause
VII of the then subsisting Regulations have
been incorporated in Clause 9 of the 2000
Regulations as sub-clause (8) in substance.
This Court has permitted intervention of G.M.S.
Class II Medical Officers’ Association in this
Writ Petition. The latter entity represents in-
service doctors of the State of Gujarat. The
153
said Association had asked for transfer of a
petition pending in the High Court of Gujarat,
registered as SCA No.5773/2019 ( GMS Class II
Medical Officers Association vs. State of
Gujarat & Ors.) to this Court in Transfer
Petition (Civil)No. 633 of 2020. This Court, by
nd
an order passed on 22 June, 2020, considering
urgency of the matter, did not consider
appropriate to transfer the matter. The
petitioner for transfer, however, was permitted
to intervene in the matter. Ms. Meenakshi
Arora, learned Senior Advocate argued for them
before us. Their grievances, as outlined in
their application, is over, inter-alia, change
in the policy in the State of Gujarat by
effecting reservation for in-service candidates
sponsored by the State Government of 50 per
cent seats in the diploma courses only,
excluding the degree courses from such
154
reservation or separate source of entry. This
has been done under Rule 6 of the Gujarat
Professional Postgraduate Medical Educational
Courses (Regulation of Admission) Rules, 2018 .
These Rules have been framed under the Gujarat
Professional Medical Educational Colleges or
Institutions (Regulation of Admission and
Fixation of Fees) Act, 2007. Subsequently, all
the medical colleges in the State of Gujarat
have applied for conversion of their diploma
seats into degree courses. The applicants
contend that such conversion would nullify the
effect of Clause 9(8) of the 2000 Regulations.
The Association’s concern is that such
conversion would further shrink future academic
pursuit of the in-service doctors from that
State. It appears that the State of Gujarat had
provision for 25 per cent reservation for in-
service candidates in postgraduate degree
155
courses before the MCI brought in the amended
Regulations. The Association seeks invalidation
of said Rule 6 as also direction upon the State
to implement policy of granting incentive marks
in terms of proviso to Clause 9(4) of the 2000
Regulations.
8. Reservation for in-service candidates in
postgraduate medical courses has been prevalent
in various States in different forms for quite
some time now, though the extent of such
reservation has varied, from State to State,
year to year. In the State of Maharashtra,
reservation of this category of doctors in
post-graduate degree seats had been subsisting
th
since 6 January, 1990 on the basis of
Government Resolutions, and the reservation
percentage stood at 25 per cent on the basis of
nd
a Resolution dated 22 February, 1996. This
has been pleaded in Writ Petition(C)No. 295 of
156
2018. This Writ Petition, as also Writ Petition
(Civil) No. 293 of 2018 and Writ Petition
(Civil) No. 252 of 2018 deal with Clause 9 of
the 2000 Regulations prior to its amendment
th
effected on 5 April 2018. The petitioner in
that proceeding is a State appointed medical
officer seeking the benefit of in-service
candidates’ reservation. The Writ Petition
registered as W.P.(C) No.293/2018 relates to
similar question of reservation in the State of
Haryana. The quota for in-service doctors in
the State of Haryana was increased from 27 per
cent to 40 per cent with effect from the 2001
session. The petitioners being in-service
doctors aspiring to undertake post-graduate
degree courses seek declaration to the effect
that the State retains power to reserve
postgraduate degree seats for the in-service
doctors even after coming into operation of
157
Clause 9(IV) of the 2000 Regulations in the
form we have already referred to. Their
alternative prayer is for invalidation of sub-
clauses (IV) and (VII) of Clause 9 of the 2000
Regulations.
9 . The State of Kerala had enacted the Kerala
Medical Officers Admission to Postgraduate
Courses under Service Quota Act, 2008 for
providing reservation in postgraduate courses
for medical officers in service of the State
Government on prescribed terms and conditions.
This Statute empowers the State Government to
reserve upto 40 per cent of post-graduate seats
for in-service candidates. The State had policy
of reservation of 40 per cent of the seats
available in postgraduate medical admissions
for in-service doctors on the basis of
seniority.
158
10 . The State of West Bengal framed the West
Bengal Medical Education Service, the West
Bengal Health Service and the West Bengal
Public Health-cum-Administrative Service
(Placement on Trainee Reserve) Rules, 2015
under Section 21 of the West Bengal State
Health Services Act, 1990. Note to Rule 3
thereof confers power on the State Government
to specify the number of seats in different
postgraduate courses which may be available to
the in-service doctors. There have been
subsequent Executive Orders issued in this
regard. Reservation for the in-service doctors
by the State Government was successfully
challenged before the High Court by twentytwo
medical graduates appearing from the open
category who had cleared the entrance
examination through the Postgraduate NEET, 2019
conducted by the National Board of Examination
159
at all India level. Reservation for in-service
doctors in West Bengal was being continued in
terms of a memorandum bearing no.
th
HF/O/MERT/433//W-43/13 dated 18 April, 2013.
The seats involved were for MD-MS courses,
which are postgraduate medical degree courses.
In terms of the 2000 Regulations, half of the
total number of seats had been reserved for All
India quota and the other half had been
reserved for the State quota. After the second
round of counselling, the vacancies remaining
from the national quota were reverted back to
the State. The complaint of the writ
petitioners before the High Court was that the
State was seeking to fill up these reverted
seats in 60:40 ratio for the open category and
in-service candidates. A learned Single Judge
of the High Court allowed the writ petition on
the ground that such reservation was contrary
160
to the provisions of the 2000 Regulations. The
decision of the First Court was affirmed by a
Division Bench of the High Court. Admission of
the in-service doctors to postgraduate degree
courses pursuant to reservation of 40 per cent
of the State quota seats was directed to be
cancelled and a fresh merit list was also
directed to be prepared. In SLP(C) 26665 of
2019 and 26507-26510, 25487-25490 of 2019 and
Diary No. 42980 of 2019, the in-service doctors
have assailed the judgment of the Division
Bench of the Calcutta High Court. The State of
West Bengal is the appellant-petitioner in
SLP(C) Nos. 26448 of 2019 whereas the Vice
Chancellor, West Bengal University of Health
Sciences is the appellant-petitioner in
SLP(C)No. 26449 of 2019 and SLP(C)No. 26648 of
2019.
161
11 . The main proceeding giving rise to this
reference is Writ Petition (Civil) No.196 of
2018. Mr. Arvind Datar, learned Senior Advocate
has argued in this writ petition for the
petitioners before us. In this writ petition,
following reliefs have been prayed for:-
“(a)Declare by issuance of a writ
of mandamus or any other suitable
writ/order/direction that
Regulation 9 of the Post Graduate
Medical Education Regulations,
2000 (more particularly,
Regulation 9 (IV) and 9(VII), does
not take away the power of the
States under Entry 25, List III to
provide for a separate source of
entry for in-service candidates
seeking admission to Degree
Courses;
(b)Alternatively, if Regulation 9
of the Post Graduate Medical
Education Regulations, 2000 is
understood to not allow for States
to provide for a separate source
of entry for in-service candidates
seeking admission to Degree
Courses, declare, by issuance of a
writ of mandamus or any other
suitable writ/order/direction,
Regulation 9 (more particularly,
Regulation 9 (IV) and 9 (VII) as
being arbitrary, discriminatory
162
and violative of Article 14 and
Article 19(1)(g)of the
Constitution and also ultra vires
the provisions of the Indian
Medical Council Act 1956; and
(c)Pass any such further
orders/directions which this
Hon’ble Court may deem fit and
proper in the interest of
justice.”
12 . Before the institution of Writ Petition
(Civil) no.196 of 2018, a three-Judge Bench of
this Court in the case of State of Uttar
Pradesh & Ors. vs. Dinesh Singh Chauhan [(2016)
9 SCC 749] had examined the question as to
whether having regard to the provisions of
Clause 9 of the 2000 Regulations, State’s power
to provide for reservation of in-service
candidates in postgraduate medical degree
courses had been retained or not. This issue
was decided in the negative. Opinion of the
Bench of three Hon’ble Judges of this Court in
this case was that the effect of Clause 9 of
163
the 2000 Regulations was in effect forfeiture
of the power of the States in making provisions
for reservation in postgraduate medical degree
courses for in-service doctors. This case
dealt with Clause 9 of the 2000 Regulations as
th
it stood prior to 5 April 2018. In Sudhir N.&
Ors. vs. State of Kerala & Ors. [(2015) 6 SCC
685), a Division Bench of this Court has held
that Clause 9 of the 2000 Regulations is a
complete code by itself inasmuch as it
prescribes the basis for determining the
eligibility of candidates including the method
to be adopted for determining inter-se merit
which remains the only basis for such
admission. In the case of Dinesh Singh Chauhan
(supra), this view was confirmed by the three-
judge Bench of this Court. We must, however,
point out here that in the case of Sudhir N.
(supra), the question which was addressed was
164
as to whether in-service candidates could be
given admission on the basis of inter-se
seniority alone.
13. As it would be evident from the aforesaid
proviso to sub-clause (4) of Clause 9 (as also
sub-clause IV of the same clause as it
th
prevailed after the amendment made on 15
February 2012), the State Governments have been
conferred with the power to give weightage in
the marks as an incentive of upto 10 per cent
of the marks obtained for each year of service
in remote and the difficult areas. Rural areas
was added to this List on the basis of
th
amendment made on 5 April 2018. A capping of
30 per cent of the marks obtained in the NEET
on such weightage has been specified in the
said proviso. Sub-clause(8) of the present
Regulations, which is broadly similar to sub-
clause VII of the same Regulations in its
165
earlier form, thereof permits the State
Governments to reserve 50 per cent of the seats
in postgraduate diploma courses for in-service
doctors who have served for at least three
years in remote and/or difficult areas or rural
areas. This reservation is subject to a further
condition that after acquiring a postgraduate
diploma the medical officers should serve two
more years in remote and/or in difficult areas
or rural areas as defined by the State
Government or the competent authorities.
14. In the case of Dinesh Singh Chauhan
(supra), before the High Court at Allahabad,
th
legality of two government orders dated 28
th
February, 2014 and 17 April, 2014 was
questioned. These orders imposed condition of
working for three years in rural or difficult
areas for the in-service doctors aspiring for
postgraduate study. The State of Uttar Pradesh
166
at the material time had 30 per cent quota for
in-service candidates in the postgraduate
degree courses as well. The High Court held
that the admission process specified in Clause
9 of 2000 Regulations should be strictly
adhered to. The finding of the High Court, as
summarised in the judgment of Dinesh Singh
Chauhan (supra) , was:-
“6. The High Court whilst adverting to the
decisions of this Court including the
recent judgment in Sudhir N. v. State of
Kerala [(2015) 6 SCC 685 : (2015) 2 SCC
(L&S) 323] held that Regulation 9 is a
complete code and the admission process
must strictly adhere to the norms
stipulated therein. It, thus, proceeded to
quash the Government Notification-cum-
Government Order dated 28-2-2014 and
directed that admissions to postgraduate
“degree” courses be proceeded strictly on
merits amongst the candidates who have
obtained requisite minimum marks in the
common entrance examination in question.
It also noted that as per Regulation 9, at
best, the in-service candidates who have
worked in remote and difficult areas in
the State, as notified by the State
Government/competent authority from time
to time, alone would be eligible for
weightage of marks as incentive @ 10% of
the marks obtained for each year of
service in such areas up to the maximum of
167
30% marks obtained in National
Eligibility-cum-Entrance Test.”
15. In the aforesaid decision, the three-judge
Bench of this Court proceeded on the basis that
the procedure for admission to postgraduate
courses falls within Entry 66 of List I to the
Seventh Schedule of the Constitution of India.
It was, inter-alia, held in this judgment:-
“24. By now, it is well established
that Regulation 9 is a self-contained
code regarding the procedure to be
followed for admissions to medical
courses. It is also well established
that the State has no authority to
enact any law much less by executive
instructions that may undermine the
procedure for admission to
postgraduate medical courses
enunciated by the Central legislation
and regulations framed thereunder,
being a subject falling within
Schedule VII List I Entry 66 of the
Constitution (see Preeti Srivastava
v. State of M.P.). The procedure for
selection of candidates for the
postgraduate degree courses is one
such area on which the Central
legislation and regulations must
prevail.
168
25. Thus, we must first ascertain
whether Regulation 9, as applicable
to the case on hand, envisages
reservation of seats for in service
medical officers generally for
admission to postgraduate “degree”
courses. Regulation 9 is a composite
provision prescribing procedure for
selection of candidates—both for
postgraduate “degree” as well as
postgraduate “diploma” courses:
25.1. Clause (I) of Regulation 9
mandates that there shall be a single
National Eligibility-cum-Entrance
Test (hereinafter referred to as
“NEET”) to be conducted by the
designated authority.
25.2. Clause (II) provides for three
per cent seats of the annual
sanctioned intake capacity to be
earmarked for candidates with
locomotory disability of lower limbs.
We are not concerned with this
provision.
25.3. Clause (III) provides for
eligibility for admission to any
postgraduate course in a particular
academic year.
25.4. Clause (IV) is the relevant
provision. It provides for
reservation of seats in medical
colleges/institutions for reserved
categories as per applicable laws
prevailing in States/Union
169
Territories. The reservation referred
to in the opening part of this clause
is, obviously, with reference to
reservation as per the constitutional
scheme (for the Scheduled Caste, the
Scheduled Tribe or the Other Backward
Class candidates); and not for the
in-service candidates or medical
officers in service. It further
stipulates that all-India merit list
as well as Statewise merit list of
the eligible candidates shall be
prepared on the basis of the marks
obtained in NEET and the admission to
postgraduate courses in the State
concerned shall be as per the merit
list only. Thus, it is a provision
mandating admission of candidates
strictly as per the merit list of
eligible candidates for the
respective medical courses in the
State. This provision, however,
contains a proviso. It predicates
that in determining the merit of
candidates who are in service of the
Government or a public authority,
weightage in the marks may be given
by the Government/competent authority
as an incentive @ 10% of the marks
obtained for each year of service in
specified remote or difficult areas
of the State up to the maximum of 30%
of the marks obtained in NEET. This
provision even if read liberally does
not provide for reservation for in-
service candidates, but only of
giving a weightage in the form of
incentive marks as specified to the
class of in-service candidates (who
have served in notified remote and
difficult areas in the State).
170
26. From the plain language of this
proviso, it is amply clear that it
does not envisage reservation for in-
service candidates in respect of
postgraduate “degree” courses with
which we are presently concerned.
This proviso postulates giving
weightage of marks to “specified in-
service candidates” who have worked
in notified remote and/or difficult
areas in the State—both for
postgraduate “degree” courses as also
for postgraduate “diploma” courses.
Further, the weightage of marks so
allotted is required to be reckoned
while preparing the merit list of
candidates.
27. Thus understood, the Central
enactment and the regulations framed
thereunder do not provide for
reservation for in-service candidates
in postgraduate “degree” courses. As
there is no express provision
prohibiting reservation to in-service
candidates in respect of admission to
postgraduate “degree” courses, it was
contended that providing for such
reservation by the State Government
is not impermissible in law. Further,
there are precedents of this Court to
suggest that such arrangement is
permissible as a separate channel of
admission for in-service candidates.
This argument does not commend to us.
In the first place, the decisions
pressed into service have considered
the provisions regarding admission
process governed by the regulations
in force at the relevant time. The
171
admission process in the present case
is governed by the regulations which
have come into force from the
academic year 2013-2014. This
Regulation is a self-contained code.
There is nothing in this Regulation
to even remotely indicate that a
separate channel for admission to in-
service candidates must be provided,
at least in respect of postgraduate
“degree” courses. In
contradistinction, however, 50% seats
are earmarked for the postgraduate
“diploma” courses for in-service
candidates, as is discernible from
clause (VII). If the regulation
intended a similar separate channel
for in-service candidates even in
respect of postgraduate “degree”
courses, that position would have
been made clear in Regulation 9
itself. In absence thereof, it must
be presumed that a separate channel
for in-service candidates is not
permissible for admission to
postgraduate “degree” courses. Thus,
the State Government, in law, had no
authority to issue a Government Order
such as dated 28-2-2014, to provide
to the contrary. Hence, the High
Court was fully justified in setting
aside the said government order being
contrary to the mandate of Regulation
9 of the 2000 Regulations, as
applicable from the academic year
2013-2014.”
16 . The reliefs prayed for by the petitioners
in Writ Petition(C)No. 252 of 2018, Writ
172
Petition(C)No. 295 of 2018 and Writ
Petition(C)No. 293 of 2018 are broadly the
same. In the petition instituted by the
Association of Tamil Nadu Medical Officers, it
has been pleaded that since the year 1989, the
State of Tamil Nadu had a policy for providing
separate source of entry for in-service
candidates to the extent of the 50 per cent of
the seats in degree courses. Thereafter the
State had also provided weightage to those in-
service doctors who have served in rural,
remote or difficult areas. The grievances of
the petitioners arose in the light of the
findings of this Court in the case of Dinesh
Singh Chauhan (supra) . The petitioners’
apprehension was that it would be impermissible
for the State to provide a separate source of
entry for in-service candidates and that any
such exercise of power by State would be in
173
contradiction of Clause 9 which would cause
grave prejudice to them. In this context, they
made the prayers which we have already referred
to. A Bench of three Hon’ble Judges of this
Court, at the time of the admission of the Writ
th
Petition (Civil) no. 196 of 2018, on 13 April
2018 opined that the said writ petition
required consideration by a larger bench.
Before the said Bench of this Court, it was the
petitioners’ case in Writ Petition (Civil) no.
196 of 2018 that at least three Constitution
Bench decisions of this Court, R. Chitralekha
and Anr. vs. State of Mysore & Ors. (AIR 1964 SC
1823) , Kumari Chitra Ghosh & Anr. vs. Union of
India & Ors. [(1969) 2 SCC 228] and Modern
Dental College and Research Centre & Ors. vs.
State of Madhya Pradesh & Ors. [(2016) 7 SCC
353] had not been considered in the case of
Dinesh Singh Chauhan (supra).
174
17 . The Bench of three Hon’ble Judges in the
th
order passed on 13 April 2018, observed and
directed:-
“12. Having heard the learned senior
counsel appearing on both the sides
extensively, we are of the view that
Dinesh Singh Chauhan (supra), has not
considered the legislative Entries in
respect of the contentions we have
noted above. Apparently, it appears no
such contentions were raised before the
Court. Same is the situation with
regard to the non-reference with
respect to the three Constitution Bench
decisions we have referred to above. As
far as Modern Dental (supra) is
concerned, perhaps the judgment had not
been published by the time the judgment
in Dinesh Singh Chauhan (supra) was
rendered.
13. The petitioners have raised several
other contentions and invited our
reference to the judgments by Benches
of equal strength as in Dinesh Singh
Chauhan (supra).
14. In the above circumstances, we are
of the view that these writ petitions
require consideration by a larger
Bench.
15. Learned senior counsel appearing
for the petitioners have strenuously
pressed for an interim order since the
counseling has either commenced or in
175
some States it is only about to
commence. Having regard to the entire
facts and circumstances of the case, we
feel it is appropriate that even the
interim relief should be considered by
the larger Bench.
16. Accordingly, place the matters
before the Hon’ble the Chief Justice of
India for consideration by a larger
Bench, emergently.”
18. It is in this perspective the said writ
petition has been referred to us. In the other
proceedings which we are hearing now also the
same question of constitutional law is
involved. There are, however, certain factual
variations as regards the manner in which such
reservation is contemplated. We shall briefly
discuss first the ratio of the judgment in the
case of R. Chitralekha (supra). This was a case
decided when power was exclusively with the
State Legislature to legislate in respect of
“Education including universities, subject to
the provisions of Items 63, 64, 65 and 66 of
176
List I and 25 of List III”. At that point of
time, these items were enumerated against Entry
11 of List II of the Seventh Schedule to the
Constitution. The dispute in that case before
the Constitution Bench of this Court arose from
an order passed by the State Government
directing reservation of certain percentage of
seats in professional and technical colleges
and institutions. Such reservation was for
Backward Classes and Scheduled Castes and
th
Tribes. The Government order issued on 26
July, 1963 also defined Backward Classes. The
criteria for marking, as stipulated, was that
25 per cent of maximum marks for examination in
the optional subjects was to be taken into
account for making the selection of candidates
for admission to engineering colleges was to be
fixed as interview marks. Criteria for
allotting marks in the interview was also
177
specified. The Selection Committee had evolved
certain different marking criteria for
interviews. Some of the unsuccessful candidates
had approached the High Court for quashing the
orders issued by the Government in the matter
of admissions to those institutions. The
petitioning candidates asked for direction that
admission should be in the order of merit. The
‘reservation’ part of Governmental Order was
sustained by the High Court. The High Court,
however, held that the Selection Committee had
abused the powers conferred upon it. The
interviews were set aside and direction was
issued by the High Court for holding interviews
afresh in accordance with the scheme laid down
by the Government. It was urged before the
Constitution Bench of this court by the writ
petitioners therein that the State Government
had no power to appoint a selection committee
178
for admitting students to colleges on the basis
of qualifications higher than or different from
those prescribed by the university. One of the
grounds for questioning the power of the State
Government to appoint a selection committee was
that coordination and determination of
standards of a university was a Union subject
and the State had no power to lay down Rules
for maintaining the standards of university
education. Referring to an earlier decision of
this Court, in the case of Gujarat University &
Anr. vs. Shri Krishna & Ors. [(AIR) 1963 SC
703], it was held by the Constitution Bench:-
“The question was whether medium of
instruction was comprehended by either
of those entries or whether it fell
under both. In that context it was
observed at p. 715-16:
‘The State has the power to prescribe
the syllabi and courses of study in the
institutions named in Entry 66 (but not
falling within Entries 63 to 65) and as
an incident thereof it has the power to
indicate the medium in which
instruction should be imparted. But the
179
Union Parliament has an overriding
legislative power to ensure that the
syllabi and courses of study prescribed
and the medium selected do not impair
standards of education or render the
coordination of such standards either
on an all India or other basis
impossible or even difficult.’
This and similar other passages
indicate that if the law made by the
State by virtue of Entry 11 of List II
of the Seventh Schedule to the
Constitution makes impossible or
difficult the exercise of the
legislative power of the Parliament
under the entry “coordination and
determination of standards in
institutions for higher education or
research and scientific and technical
institutions” reserved to the Union,
the State law may be bad. This cannot
obviously be decided on speculative and
hypothetical reasoning. If the impact
of the State law providing for such
standards on Entry 66 of List I is so
heavy or devastating as to wipe out or
appreciably abridge the central field,
it may be struck down. But that is a
question of fact to be ascertained in
each case. It is not possible to hold
that if a State Legislature made a law
prescribing a higher percentage of
marks for extra-curricular activities
in the matter of admission to colleges,
it would be directly encroaching on the
field covered by Entry 66 of List I of
the Seventh Schedule to the
Constitution. If so, it is not disputed
that the State Government would be
within its rights to prescribe
180
qualifications for admission to
colleges so long as its action does not
contravene any other law.”
19 . In the case of Modern Dental College
(supra), a Constitution Bench of this Court
examined the impact of Entry 66 of the Union
List while analysing the legislative power of
the State in regulating certain aspects of
admission to institutions of higher education.
It was held in this judgment:-
“ 100 . The competing entries are: List I
entry 66 and List III Entry 25. In the
process, List II Entry 32 also needs a
glance. Thus, for proper analysis, we
reproduce these entries below:
List I
66. Coordination and determination of
standards in institutions for higher
education or research and scientific and
technical institutions.
List II
32. Incorporation, regulation and
winding up of corporations, other than
those specified in List I, and
universities; unincorporated trading,
literacy, scientific, religious and
other societies and associations;
cooperative societies.
181
List III
25. Education, including technical
education, medical education and
universities, subject to the provisions
of entries 63, 64, 65 and 66 of List I;
vocational and technical training of
labour.”
101. To our mind, Entry 66 in List I is a
specific entry having a very specific
and limited scope. It deals with
coordination and determination of
standards in institutions of higher
education or research as well as
scientific and technical institutions.
The words “coordination and
determination of standards” would mean
laying down the said standards. Thus,
when it comes to prescribing the
standards for such institutions of
higher learning, exclusive domain is
given to the Union. However, that would
not include conducting of examination,
etc, and admission of students to such
institutions or prescribing the fee in
these institutions of higher education,
etc. In fact, such coordination and
determination of standards, insofar as
medical education is concerned, is
achieved by parliamentary legislation in
the form of the Indian Medical Council
Act, 1956 and by creating the statutory
body like Medical Council of India (for
short “MCI”) therein. The functions that
are assigned to MCI include within its
sweep determination of standards in a
medical institution as well as
coordination of standards and that of
educational institutions. When it comes
182
to regulating “education” as such, which
includes even medical education as well
as universities (which are imparting
higher education), that is prescribed in
List III Entry 25, thereby giving
concurrent powers to both Union as well
as States. It is significant to note
that earlier education, including
universities, was the subject-matter of
List II Entry 11. Thus, power to this
extent was given to the State
Legislatures. However, this entry was
omitted by the Constitution (Forty-
second Amendment) Act, 1976 with effect
from 3-7-1977 and at the same time List
II entry 25 was amended. Education,
including university education, was thus
transferred to the concurrent List and
in the process technical and medical
education was also added. Thus, if the
argument of the appellants is accepted,
it may render Entry 25 otiose. When two
entries relating to education, one in
the Union List and the other in the
concurrent List, coexist, they have to
be read harmoniously. Reading in this
manner, it would become manifest that
when it comes to coordination and laying
down of standards in the higher
education or research and scientific and
technical institutions, power rests with
the Union/Parliament to the exclusion of
the State Legislatures. However, other
facets of education, including technical
and medical education, as well as
governance of universities is concerned,
even State Legislatures are given power
by virtue of Entry 25. The field covered
by List III entry 25 is wide enough and
as circumscribed to the limited extent
183
of it being subject to List I Entries
63, 64, 65 and 66.”
102. Most educational activities,
including admissions, have two aspects:
the first deals with the adoption and
setting up the minimum standards of
education. The objective in prescribing
minimum standards is to provide a
benchmark of the calibre and quality of
education being imparted by various
educational institutions in the entire
country. Additionally, the coordination
of the standards of education determined
nationwide is ancillary to the very
determination of standards. Realising
the vast diversity of the nation wherein
levels of education fluctuated from lack
of even basic primary education, to
institutions of high excellence, it was
thought desirable to determine and
prescribe basic minimum standards of
education at various levels,
particularly at the level of research
institutions, higher education and
technical education institutions. As
such, while balancing the needs of
States to impart education as per the
needs and requirements of local and
regional levels, it was essential to lay
down a uniform minimum standard for the
nation. Consequently, the Constitution-
makers provided for List I Entry 66 with
the objective of maintaining uniform
standards of education in fields of
research, higher education and technical
education.
184
103. The second/other aspect of
education is with regard to the
implementation of the standards of
education determined by Parliament, and
the regulation of the complete activity
of education. This activity necessarily
entails the application of the standards
determined by Parliament in all
educational institutions in accordance
with the local and regional needs. Thus,
while List I Entry 66 dealt with
determination and coordination of
standards, on the other hand, the
original List II Entry 11 granted the
States the exclusive power to legislate
with respect to all other aspects of
education, except the determination of
minimum standards and coordination which
was in national interest. Subsequently,
vide the Constitution (Forty-second
Amendment) Act, 1976, the exclusive
legislative field of the State
Legislature with regard to education was
removed and deleted, and the same was
replaced by amending List III Entry 25
granting concurrent powers to both
Parliament and State Legislature the
power to legislate with respect to all
other aspects of education, except that
which was specifically covered by List I
Entries 63 to 66.
104. No doubt, in Bharati
Vidyapeeth [ Bharati Vidyapeeth v. State
of Maharashtra , (2004) 11 SCC 755 : 2
SCEC 535] it has been observed that the
entire gamut of admission falls under
List I Entry 66. The said judgment by a
185
Bench of two Judges is, however,
contrary to law laid down in earlier
larger Bench decisions.
In Gujarat University [ Gujarat
University v. Krishna Ranganath
Mudholkar , AIR 1963 SC 703 : 1963 Supp
(1) SCR 112] , a Bench of five Judges
examined the scope of List II Entry 11
(which is now List III Entry 25) with
reference to List I Entry 66. It was
held that the power of the State to
legislate in respect of education to the
extent it is entrusted to Parliament, is
deemed to be restricted. Coordination
and determination of standards was in
the purview of List I and power of the
State was subject to power of the Union
on the said subject. It was held that
the two entries overlapped to some
extent and to the extent of overlapping
the power conferred by List I Entry 66
must prevail over power of the State.
Validity of a State legislation depends
upon whether it prejudicially affects
“ coordination or determination of
standards ”, even in absence of a Union
legislation. In R. Chitralekha v. State
of Mysore [ R. Chitralekha v. State of
Mysore , AIR 1964 SC 1823 : (1964) 6 SCR
368] , the same issue was again
considered. It was observed that if the
impact of the State law is heavy or
devastating as to wipe out or abridge
the Central field, it may be struck
down. In State of T.N. v. Adhiyaman
Educational & Research Institute [ State
of T.N. v. Adhiyaman Educational &
Research Institute , (1995) 4 SCC 104 : 1
186
SCEC 682] , it was observed that to the
extent that State legislation is in
conflict with the Central legislation
under Entry 25, it would be void and
inoperative. To the same effect is the
view taken in Preeti Srivastava [ Preeti
Srivastava v. State of M.P. , (1999) 7
SCC 120 : 1 SCEC 742] and State of
Maharashtra v. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya [ State of
Maharashtra v. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya , (2006) 9 SCC 1 :
5 SCEC 637] . Though the view taken
in State of M.P. v. Nivedita Jain [ State
of M.P. v. Nivedita Jain , (1981) 4 SCC
296] and Ajay Kumar Singh v. State of
Bihar [ Ajay Kumar Singh v. State of
Bihar , (1994) 4 SCC 401] to the effect
that admission standards covered by List
I Entry 66 could apply only post
admissions was overruled in Preeti
Srivastava [ Preeti Srivastava v. State
of M.P. ,(1999) 7 SCC 120 : 1 SCEC 742],
it was not held that the entire gamut
of admissions was covered by List
I as wrongly assumed in Bharati
Vidyapeeth [ Bharati Vidyapeeth v. State
of Maharashtra , (2004) 11 SCC 755 : 2
SCEC 535.
105. We do not find
any ground for holding that
Preeti Srivastava [ Preeti
Srivastava v. State of M.P. , (1999) 7
SCC 120 : 1 SCEC 742] excludes
the role of States altogether from
admissions. Thus, observations
in Bharati Vidyapeeth [ Bharati
187
Vidyapeeth v. State of Maharashtra ,
(2004) 11 SCC 755 : 2 SCEC 535] that
entire gamut of admissions was covered
by List I Entry 66 cannot be upheld and
overruled to that extent. No doubt, List
III Entry 25 is subject to List I Entry
66, it is not possible to exclude the
entire gamut of admissions from List III
Entry 25. However, exercise of any power
under List III Entry 25 has to be
subject to a Central law referable to
Entry 25.
In Her concurring opinion, Banumathi J.(as
her Ladyship then was) observed :-
“132 . The intent of our Constitution
Framers while introducing entry 66 of
the Union List was thus limited only to
empowering the Union to lay down a
uniform standard of higher education
throughout the country and not to bereft
the State Legislature of its entire
power to legislate in relation to
“education” and organising its own
common entrance examination.”
20. The Constitution Bench in the case of
Modern Dental College (supra) did not opine
that there was plenary legislative power of the
Union covering the entire field of admission in
188
higher educational institutions. In the case of
Dinesh Singh Chauhan (supra), another
Constitution Bench decision of this Court Dr.
Preeti Srivastava & Anr. vs. State of M.P. &
Ors. (1999)7 SCC 120 was referred to and
followed. In the case of Dr. Preeti Srivastava
(supra), this Court examined the following
question:
“The question is whether apart from
providing reservation for admission to
the postgraduate courses in
Engineering and Medicine for special
category candidates, it is open to the
State to prescribe different minimum
qualifying marks, for special category
candidates seeking admission under the
reserved category.”
21. The case of Preeti Srivastava (supra)
involved the question of prescribing minimum
percentage of qualifying marks for the reserved
category candidates (with reference to Article
15(4) of the Constitution of India). As regards
the respective powers of the State and the
189
Union to legislate in the field of education,
it was held:
“35. The legislative competence of
Parliament and the legislatures of
the States to make laws under
Article 246 is regulated by the
VIIth Schedule to the Constitution.
In the VIIth Schedule as originally
in force, Entry 11 of List II gave
to the State an exclusive power to
legislate on “education including
universities, subject to the
provisions of Entries 63, 64, 65 and
66 of List I and Entry 25 of List
III”.
Entry 11 of List II was deleted
and Entry 25 of List III was amended
with effect from 3-1-1976 as a
result of the Constitution 42nd
Amendment Act of 1976. The present
Entry 25 in the Concurrent List is
as follows:
“25. Education, including
technical education, medical
education and universities, subject
to the provisions of Entries 63, 64,
65 and 66 of List I; vocational and
technical training of labour.”
Entry 25 is subject, inter alia,
to Entry 66 of List I. Entry 66 of
List I is as follows:
“66. Coordination and
determination of standards in
institutions for higher education or
190
research and scientific and
technical institutions.”
Both the Union as well as the States
have the power to legislate on
education including medical
education, subject, inter alia, to
Entry 66 of List I which deals with
laying down standards in
institutions for higher education or
research and scientific and
technical institutions as also
coordination of such standards. A
State has, therefore, the right to
control education including medical
education so long as the field is
not occupied by any Union
legislation. Secondly, the State
cannot, while controlling education
in the State, impinge on standards
in institutions for higher
education. Because this is
exclusively within the purview of
the Union Government. Therefore,
while prescribing the criteria for
admission to the institutions for
higher education including higher
medical education, the State cannot
adversely affect the standards laid
down by the Union of India under
Entry 66 of List I. Secondly, while
considering the cases on the subject
it is also necessary to remember
that from 1977, education,
including, inter alia, medical and
university education, is now in the
Concurrent List so that the Union
can legislate on admission criteria
also. If it does so, the State will
191
not be able to legislate in this
field, except as provided in Article
254.”
22. On the aspect of laying down norms for
admission, it was held in the case of Dr.
Preeti Srivastava (supra):
36. It would not be correct to say
that the norms for admission have no
connection with the standard of
education, or that the rules for
admission are covered only by Entry
25 of List III. Norms of admission
can have a direct impact on the
standards of education. Of course,
there can be rules for admission
which are consistent with or do not
affect adversely the standards of
education prescribed by the Union in
exercise of powers under Entry 66 of
List I. For example, a State may,
for admission to the postgraduate
medical courses, lay down
qualifications in addition to those
prescribed under Entry 66 of List I.
This would be consistent with
promoting higher standards for
admission to the higher educational
courses. But any lowering of the
norms laid down can and does have an
adverse effect on the standards of
education in the institutes of
higher education. Standards of
education in an institution or
192
college depend on various factors.
Some of these are:
( 1 ) the calibre of the teaching
staff;
( 2 ) a proper syllabus designed to
achieve a high level of education in
the given span of time;
( 3 ) the student-teacher ratio;
( 4 ) the ratio between the students
and the hospital beds available to
each student;
( 5 ) the calibre of the students
admitted to the institution;
(6 ) equipment and laboratory
facilities, or hospital facilities
for training in the case of medical
colleges;
( 7 ) adequate accommodation for the
college and the attached hospital;
and
( 8 )the standard of examinations held
including the manner in which the
papers are set and examined and the
clinical performance is judged.”
23 . From a composite reading of these
authorities, the position of law as emerges, is
that all aspects of admission cannot be said to
be covered by Entry 66 of the Union List, even
if the entire admission process is incorporated
193
in a single code. Certain aspects of admission
stipulated by the State may trespass into
legislative zone of “coordination and
determination of standards.” One illustration
of such potential trespass would be lowering
the eligibility criteria for admission fixed by
a Union legislation, the 2000 Regulations in
this case. In such a situation, the State would
be encroaching upon exclusive field of the
Union. The case of Preeti Srivastava (supra)
was decided broadly on this rationale. But
there can be Rules on facets of admission
process in institutions of higher education
framed by the State legislature which would not
have impact on the subjects enumerated against
Entry 66 of the Union List, and thus would not
result in conflict with the latter. While
analysing the State’s power to legislate under
Entry 11 of List II of the Seventh schedule of
194
the Constitution, as it originally existed, it
has been observed in the case of Modern Dental
College (supra) that “…except the determination
of minimum standards and coordination which was
in the national interest..”, the State had
power to legislate with respect to all other
aspects of education. Now that the subjects of
erstwhile Entry 11 of List II find their way in
the Concurrent List, the State’s power is
further subject to any statutory instrument
owing its origin to any Union legislation, even
if such statutory instrument is not enacted on
the basis of exclusive power of the Union
contained in Entry 66 of List I. In that
context, we would have to examine as to whether
these facets of admission to the postgraduate
medical degree course from a separate entry
channel comprising of in-service doctors stand
already covered or occupied by the statutory
195
instrument in the form of 2000 Regulations
owing its origin to a Union legislation comes
within the ambit of Entry 66 of List-I. If not,
the subject-entry would be in the concurrent
list and it would be permissible for the States
to lay down their own norms, which are not
covered by any Union legislations. In the case
of Modern Dental College (supra), this was the
judicial approach of the Constitution Bench.
We find support for taking this view from the
case of R. Chitralekha (supra) also. In the
latter authority, of course, the competing
entries were in List I and List II of the
Seventh Schedule of the Constitution and the
dispute was on methodology of marking in the
selection process as also reservation for
Backward Classes and Scheduled Castes. In R.
Chitralekha (supra), this Court , in substance
took the view that the subject heads of Entry
196
66 of List I did not encompass every aspect of
admission process in higher educational
institutions and opined that State legislative
competence stood retained to deal with certain
features connected with the admission process
also, unless the State’s action in that regard
directly encroached upon the subjects comprised
within the Union List. There can thus be
certain features of the admission procedure
over which the State can also have power to
make stipulations. In a more recent case,
Yatinkumar Jasubhai Patel and Others vs. State
of Gujarat and Ors. [(2019) 10 SCC 1], a Bench
comprising of three Judges examined a similar
question involving interpretation of Gujarat
University Act, 1949. In consideration of this
Court was Rules framed by the Gujarat
University for the purpose of governing
admission to postgraduate course. So far as
197
seats of the State List are concerned, these
were made available for the candidates of
Gujarat University. Such “institutional
preference” was held to be permissible by this
Court. This Court observed, inter-alia, in
this judgment:-
“9.5. Even while giving
admissions in the State
quota/institutional reservation
quota, still the admissions are
required to be given on the
basis of the merits determined
on the basis of NEET examination
results. Under the
circumstances, introduction of
the NEET scheme, as such, has
nothing to do with the
“institutional preference.....”
24 . The third authority referred to by the
three Hon’ble Judges of this Court while
referring the Writ Petition of Tamil Nadu
Medical Officers Association & Ors., in
pursuance of which these matters have been
placed before us on reference, is the decision
198
of another Constitution Bench of this Court ,
the case of Kumari Chitra Ghosh & Anr. (supra).
The dispute in this case was over reservations
made in respect of certain categories of
students for admission to the MBBS course in a
medical college under the Delhi University. 25
per cent of the seats (excluding the seats
reserved for Government of India nominees) were
reserved for girl students. There was,
however, eight stipulated categories of
students who were eligible for admission. These
categories included being residents of Delhi,
wards of central government servants posted in
Delhi, cultural scholars etc.
25 . The minimum percentage of marks which a
candidate seeking admission was to obtain in
the aggregate of compulsory subject was 55. The
appellants obtained 62.5% marks and were
domiciled in Delhi. But they could not obtain
199
admission because of admission given to certain
students nominated by the Central Government
who got marks lower to what they had obtained.
They approached the Delhi High Court
questioning the power of the Central Government
to make nomination, but their petitions were
dismissed.
The appeal before this Court was by
certificate.
26 . It was held in this judgment, on the aspect
of classification of that category of
students:-
“8. As laid down in Shri Ram
Krishna Dalmia v. Shri justice
S.R. Tendolkar & Others, Article
14 forbids class legislation; it
does not forbid reasonable
classification. In order to pass
the test of permissible
classification two conditions
must be fulfilled- (i) that the
classification is founded on
intelligible differentia which
distinguishes persons or things
that are grouped together from
200
others left out of the group and
(ii) differentia must have a
rational relation to the object
sought to be achieved. The first
group of persons for whom seats
have been reserved are the sons
and daughters of residents of
Union Territories other than
Delhi. These areas are well known
to be comparatively backward and
with the exception of Himachal
Pradesh they do not have any
Medical College of their own. It
was necessary that persons
desirous of receiving medical
education from these areas should
be provided some facility for
doing so. As regards the sons and
daughters of Central Government
servants posted in Indian
Missions abroad it is equally
well known that due to exigencies
of their service these persons
are faced with lot of
difficulties in the matter of
education. Apart from the
problems of language, it is not
easy or always possible to get
admission into institutions
imparting medical education in
foreign countries. The Cultural,
Colombo Plan and Thailand
scholars are given admission in
medical institutions in this
country by reason of reciprocal
arrangements of educational and
cultural nature. Regarding Jammu
and Kashmir Scholars it must be
201
remembered that the problems
relating to them are of a
peculiar nature and there do not
exist adequate arrangements for
medical education in the State
itself for its residents. The
classification in all these cases
is based on intelligible
differentia which distinguished
them from the group to which the
appellants belong.
9. It is the Central Government
which bears the financial burden
of running the medical college.
It is for it to lay down the
criteria for eligibility. From
the very nature of things it is
not possible to throw the
admission open to students from
all over the country. The
Government cannot be denied the
right to decide from what sources
the admission will be made. That
essentially is a question of
policy and depends inter alia on
an overall assessment and survey
of the requirements of residents
of particular territories and
other categories of persons for
whom it is essential to provide
facilities for medical education.
If the sources are properly
classified whether on
territorial, geographical or
other reasonable basis it is not
for the courts to interfere with
the manner and method of making
the classification.”
202
This judgment was founded on the principle of
reasonable classification and has been
subsequently followed in other cases as well
where certain categories of candidates have
been given benefits in the admission process
based on certain specified criteria.
27 . The issue to be addressed now is as to
whether Clause 9 of the 2000 Regulations is
relatable to Entry 66 of List I of Seventh
Schedule of the Constitution or as to whether
the source of power to make such Regulation,
particularly in relation to providing a
separate entry channel for in-service
candidates come under Entry 25 of the
Concurrent List. In the event we find that the
entry relates to the Concurrent List, in such a
situation also we shall have to examine if the
field for formulating admission quota for in-
203
service doctors stands entirely occupied by the
aforesaid MCI Regulations or not. For this
exercise, however, we shall have to analyse the
different provisions of Clause 9 of the 2000
Regulations.
28. Before we embark on such analysis, we shall
deal with two other aspects of dispute having
Constitutional import involved in this
reference. First, we would test the nature or
character of the State quota, which we have so
far referred to as reservation. Clause 9 (4) or
th
Clause 9 (IV) as it stood prior to 5 April
2018 of the 2000 Regulations permit reservation
as per the applicable laws of the State or the
Union Territory. In the case of Dinesh Singh
Chauhan (supra), the three Judge Bench of this
Court opined that the reservation referred to
in the opening part of the said clause is akin
to reservation as per constitutional scheme and
204
does not embrace reservation for in-service
candidates. We have quoted paragraph 25.4 of
the report in which such view has been
expressed. We are in agreement with the opinion
expressed in the case of Dinesh Singh Chauhan
on this construction of Clause 9 (4) of the
2000 Regulations. In a series of judgments
including the cases of D.N. Chanchala vs. The
State of Mysore and Others [(1971) 2 SCC 293],
K. Duraiswami & Anr. vs. State of Tamil Nadu &
Ors. [(2001) 2 SCC 538], AIIMS Students Union
vs. AIIMS and Others [(2002) 1 SCC 428] as also
State of M.P.& Ors vs. Gopal D. Tirthani & Ors.
[(2003) 7 SCC 83], it has been held that
allocation of seats for in-service candidates
is only a separate or exclusive channel of
entry or source of admission and such entry-
path cannot be equated with reservation
provisions incorporated as compensatory
205
discrimination. But classifying a category of
candidates for such distinct or separate
channel has been upheld consistently, provided
such categorisation is based on intelligible
differentia. In fact, on the question of such
entry channel being based on reasonable
classification, it has been held in the case of
Gopal D. Tirthani (supra):-
“21. To withstand the test of
reasonable classification within
the meaning of Article 14 of the
Constitution, it is well settled
that the classification must
satisfy the twin tests: ( i ) it
must be founded on an intelligible
differentia which distinguishes
persons or things placed in a
group from those left out or
placed not in the group, and ( ii )
the differentia must have a
rational relation with the object
sought to be achieved. It is
permissible to use territories or
the nature of the objects or
occupations or the like as the
basis for classification. So long
as there is a nexus between the
basis of classification and the
object sought to be achieved, the
classification is valid. We have,
in the earlier part of the
206
judgment, noted the relevant
statistics as made available to us
by the learned Advocate-General
under instructions from Dr Ashok
Sharma, Director (Medical
Services), Madhya Pradesh, present
in the Court. The rural health
services (if it is an appropriate
expression) need to be
strengthened. 229 community health
centres (CHCs) and 169 first-
referral units (FRUs) need to be
manned by specialists and block
medical officers who must be
postgraduates. There is nothing
wrong in the State Government
setting apart a definite
percentage of educational seats at
postgraduation level consisting of
degree and diploma courses
exclusively for the in-service
candidates. To the extent of the
seats so set apart, there is a
separate and exclusive source of
entry or channel for admission. It
is not reservation. In-service
candidates, and the candidates not
in the service of the State
Government, are two classes based
on an intelligible differentia.
There is a laudable purpose sought
to be achieved. In-service
candidates, on attaining higher
academic achievements, would be
available to be posted in rural
areas by the State Government. It
is not that an in-service
candidate would leave the service
merely on account of having
secured a postgraduate degree or
diploma though secured by virtue
207
of being in the service of the
State Government. If there is any
misapprehension, the same is
allayed by the State Government
obtaining a bond from such
candidates as a condition
precedent to their taking
admission that after completing PG
degree/diploma course they would
serve the State Government for
another five years. Additionally,
a bank guarantee of rupees three
lakhs is required to be submitted
along with the bond. There is,
thus, clearly a perceptible
reasonable nexus between the
classification and the object
sought to be achieved.”
29. The same view stands consistently reflected
in a large body authorities, including the
cases of Dr.Snehalata Patnaik & Ors vs.
State of Orissa & Ors [(1992) 2 SCC 26], Pre PG
Medical Sangharsh Committee & Anr. vs. Dr.
Bajrang Soni & Ors. [(2001) 8 SCC 694], and the
case of AIIMS Students Union (supra). In the
case of Satyabrata Sahoo & Ors. vs State of
Orissa & Ors. [(2012) 8 SCC 203] also, there
were two entry channels, one for in-service
208
candidates and the other for open-category
candidates. Provisions for these two entry
paths were not under challenge in that case.
The constitutionality of institutional
preference in postgraduate courses in favour of
in-house candidates was found to be valid, on
the basis of reasonable classification in the
case of AIIMS (supra). The case of Yatin Kumar
Jasubhai Patel & Ors. (supra) also is based on
similar reasoning. In order to justify the
retention of such source of entry into
postgraduate medical degree courses, it was
argued on behalf of the State of Tamil Nadu and
State of West Bengal by Mr. Vaidyanathan and
Mr. Giri, for the former and Mr. Rakesh
Dwivedi, learned Senior Advocate for the latter
that such reservation was necessary for proper
functioning of the public health system as the
respective States have shortage of specialised
209
better qualified doctors to serve the remote
areas. This stand has been supported by Mr.
P.V. Surendranath, learned Senior Advocate
appearing for the West Bengal University of
Health Sciences. The same stand has been taken
by Mr. Jaideep Gupta, learned Senior Advocate
for the State of Kerala and Mr. Rahul Chitnis,
learned Advocate for the State of Maharashtra.
The theme of argument on behalf of the in-
service doctors has been that they have to
discharge arduous duties serving a large number
of patients across the respective States and it
is always not possible for them to academically
update to meet the theoretical standards set by
the MCI for the entrance examination. Mr.
Sanjay Hegde and Mr. Vijay Hansaria, learned
Senior Advocates have appeared before us for
the petitioners in W.P. (C)No. 252 of 2018,
W.P.(C) No. 293 of 2018 and W.P.(C)No.295 of
210
2018. Learned Senior Advocates for these
petitioners as also the appellant in-service
doctors in the appeals arising out of the
judgment of the High Court of Calcutta have
sought to justify their defence on the same
grounds. On the aspect of legislative
competence, the rival arguments have already
been dealt with in our discussions earlier in
this judgment. We are satisfied that the
doctors in employment of the States and allied
sectors form a separate and distinct class and
for the purpose of admission in postgraduate
degree courses they can be given certain
elements of preference. Holding them to be a
distinct group fits in with overall objective
of having medical professionals with superior
qualification for tending to the needs of the
general public. Moreover, the 2000 Regulations
by permitting award of incentive marks to them
211
and also providing for 50 per cent reservation
in diploma courses indirectly recognise this
category of doctors as a separate class. But
do the provisions of 2000 Regulations permit
the States to provide quota for such in-service
candidates?
30 . In the case of Modern Dental College
(supra), it has been explained the manner in
which Entry 66 of List I ought to be
interpreted while dealing with admission to
postgraduate medical admission course. It has
been held in this judgment that the said entry
in List I is having a very specific and limited
scope. It has also been held in the said
decision that while setting standards in
educational institutions for higher studies
would be in the exclusive domain of the Union,
that might not include conducting of
examination etc. Regulating medical education
212
would come within Entry 25 of the List III
giving concurrent powers to both Union as well
as States. In the case of Modern Dental College
(supra), the rules for admission into medical
postgraduate courses framed by the State
government were assailed.
31. Referring to the judgment of this Court in
the case of Preeti Srivastava (supra), the
Constitution Bench did not find any ground for
holding that the said judgment excluded the
role of States altogether from admissions.
32. Now, turning to the context in which we are
adjudicating the present set of proceedings, we
have to ascertain as to whether setting apart
specified percentage of seats for in-service
doctors in postgraduate medical degree courses
is referable to matters of admissions or
standards of education. It has been
acknowledged in the decision of Modern Dental
213
College (supra) that there may be certain
overlapping of subjects vis-à-vis Entry 66,
List I and Entry 25, List III to the Seventh
Schedule of the Constitution of India. In our
opinion, the question of providing a separate
entry-path to in-service doctors may have some
effect on overall standard of medical education
at the postgraduate degree level
institutions, as the students who would gain
admission to such courses may not come purely
on the basis of a uniform order of merit. But
that is not the manner in which we ought to
interpret the expression “standards” in
institutions of higher education. The
Constitution Bench judgment in the case of
Modern Dental College (supra) has construed the
words “coordination and determination of
standards” to mean laying down the standards of
education. Analysis of Clause 9 of the 2000
214
Regulations reveals that the said clause
provides a minimum entry standard in the form
of clearance of the NEET on obtaining minimum
of marks of 50 per cent by general category
candidates. Once these standards are laid down,
we are of the view that if the State
authorities provide an independent channel of
entry for in-service doctors in postgraduate
medical degree courses, who fulfil the
aforesaid minimum standards, as the latter
expression has been construed in the case of
Modern Dental College (supra), provisions to
that effect would not be in breach of the
constitutional scheme. The impact on the
“standards”, as the expression is to be
construed in Entry 66 of the first list, would
be far too distant from admission norms framed
by the State authorities for such in-service
doctors. The separate entry-channel for in-
215
service doctors would be integral to the
admission norms, relatable to the Entry 25 of
the Concurrent List. Such admission norms if
compatible with minimum standards laid down by
the MCI, would fall under the items specified
against the aforesaid entry of List III.
33. The question that arises next is whether
Clause 9 of the 2000 Regulations lay down the
procedure for admission in such a manner that
providing a separate entry channel for in-
service doctors even through the State merit
list by an independent statutory instrument
would be contrary to the provisions of the 2000
Regulations or not. If that is the case, then
the respective State legislations and
Regulations would fall foul of Article 246 and
Article 254 of the Constitution of India. We
reproduce below the text of Articles 246 and
254 of the Constitution of India:-
216
“Article 246- Subject-matter
of laws made by Parliament
and by the Legislatures of
States.-
(1) Notwithstanding anything
in clauses (2) and (3),
Parliament has exclusive
power to make laws with
respect to any of the matters
enumerated in List I in the
Seventh Schedule (in this
Constitution referred to as
the “Union List”)
(2) Notwithstanding
anything in clause (3),
Parliament and, subject to
Clause (1), the legislature
of any State also, have power
to make laws with respect to
any of the matters enumerated
in List III in the Seventh
Schedule (in this
Constitution referred to as
the “Concurrent List”).
(3) Subject to Clauses
(1) and (2), the Legislature
of any State has exclusive
power to make laws for such
State or any part thereof
with respect to any of the
matters enumerated in List II
in the Seventh Schedule (in
this Constitution referred to
as the “State List”).
(4) Parliament has power
to make laws with respect to
217
any matter for any part of
the territory of India not
included [in a State]
notwithstanding that such
matter is a matter enumerated
in the State List.
Article 254-
Inconsistency between laws
made by Parliament and laws
made by the Legislatures of
States- (1) If any provision
of a law made by the
Legislature of a State is
repugnant to any provision of
a law made by Parliament
which Parliament is competent
to enact, or to any provision
of an existing law with
respect to one of the matters
enumerated in the Concurrent
List, then, subject to the
provisions of clause (2), the
law made by Parliament,
whether passed before or
after the law made by the
Legislature of such State,
or, as the case may be, the
existing law, shall prevail
and the law made by the
Legislature of the State
shall to the extent of the
repugnancy, be void.
(2) Where a law made by
the Legislature of a State
with respect to one of the
matters enumerated in the
Concurrent List contains any
218
provision repugnant to the
provisions of an earlier law
made by Parliament or an
existing law with respect to
that matter, then, the law so
made by the Legislature of
such State shall, if it has
been reserved for the
consideration of the
President and has received
his assent, prevail in that
State:
Provided that nothing in
this clause shall prevent
Parliament form enacting at
any time any law with respect
to the same matter including
a law adding to, amending,
varying or repealing the law
so made by the Legislature of
the State.”
34. It has been argued on behalf of the
Union of India by Mr. Aman Lekhi, learned
Additional Solicitor General of India
and by Mr. Vikas Singh, learned Senior Advocate
appearing for the MCI that the said Clause 9 is
a self-contained code and there is an implied
bar upon permitting a separate source of entry
for in-service doctors. Clause 9(4) of the 2000
219
Regulations makes provisions for reservation of
seats in postgraduate courses, not making any
distinction between degree and diploma courses.
In Clause 9(8) thereof, or in Clause 9(VII) in
its earlier form, reservation of 50 per cent
seats in diploma courses has been prescribed.
Main stand of the MCI is that the degree course
is a full-fledged three years course and
clinical subjects in such course is one of the
most sought after by the students. It is MCI’s
case that postgraduate degrees enable the
students to pursue super speciality courses
later on as well as become teachers in medical
institutes. The PG diploma course, on the
other hand, according to the MCI, is of greater
practical value for treating patients in remote
and difficult or rural areas of the country.
The MCI, according to Mr. Singh has sought to
strike a balance between competing interest of
220
in-service candidates and direct candidates as
also interest of the States in ensuring quality
medical treatment to remote areas, while not
compromising on merit. This stand has been
supported by Mr. Nidhesh Gupta, learned Senior
Advocate representing private respondents from
open- category appearing in the appeals arising
out of the judgment of the Calcutta High Court.
The disadvantages spelt out by the in-service
doctors is of being out of touch with academic
developments because of their pressing duties
often in remote locations. These disadvantages
were considered by this Court in the case of
AIIMS (supra), and it was recorded in that
judgment, in reference to the case of K.
Duraiswamy (supra) in paragraph 31 of the report:-
“Some of them had done graduation
sometime in the past and were
either picked up in the government
service or had sought for joining
government service because, may
221
| be, they could not get a seat in | |
|---|
| postgraduation and thereby | |
| continue their studies because of | |
| shortage of seats in higher level | |
| of studies. On account of their | |
| having remained occupied with | |
| their service obligations, they | |
| became detached or distanced from | |
| theoretical studies and therefore | |
| could not have done so well as to | |
| effectively compete with fresh | |
| medical graduates at the PG | |
| entrance examination. Permitting | |
| in-service candidates to do | |
| postgraduation by opening a | |
| separate channel for admittance | |
| would enable their continuance in | |
| government service after | |
| postgraduation which would enrich | |
| health services of the nation. | |
| Candidates in open category having | |
| qualified in postgraduation may | |
| not necessarily feel attracted to | |
| public services. Providing two | |
| sources of entry at the | |
| postgraduation level in a certain | |
| proportion between in-service | |
| candidates and other candidates | |
| thus achieves the laudable object | |
| of making available better doctors | |
| both in public sector and as | |
| private practitioners. The object | |
| sought to be achieved is to | |
| benefit two segments of the same | |
| society by enriching both at the | |
| end and not so much as to provide | |
| protection and encouragement to | |
| one at the entry level.” | |
222
35 . According to Mr. Singh, these drawbacks
being faced by in-service doctors can be
overcome by awarding incentive marks
contemplated in proviso to sub-clause (4) of
Clause 9. Even if we proceed on the basis that
Clause 9 is a self-contained code, as held in
the case of Sudhir N. (supra), such
interpretation having been approved in the case
of Dinesh Singh Chauhan (supra), in our view a
self-contained code can cover only those
subjects which are contained in such code. This
is not an exhaustive code covering every
feature of admission to postgraduate degree
courses in medical education. If the code does
not refer to certain matters, which do not have
impact on or dilute the main subject for which
the code is made, appropriate authorities are
not enjoined from making provisions for such
uncovered areas. This we hold because the field
223
of legislation involved in the subject-dispute
is a shared field between the Union and the
States. The legislative disability of the
States would occur only when the Union
legislation covers the same subject on which
State undertakes legislative exercise and the
State legislative instrument is found to be
repugnant to the latter. There also can be
vacant legislative zones within a code, and
such vacant zones can be filled up by the
appropriate legislature. We have already
referred to the provisions contained in the
code pertaining to the admission process.
Clause 9(4)(or Clause 9(IV) in its earlier
form) of the 2000 Regulations further
stipulates that candidates shall be admitted to
post-graduate courses from the two merit lists
only, as referred to in the said clause. On
behalf of the writ petitioners who had
224
instituted proceedings in the High Court at
Calcutta, it was submitted that if a statute
requires a thing to be done in a particular
manner, it must be done in that manner or not
at all as held in Nazir Ahmed vs. King Emperor
AIR 1936 PC 253 . Certain other authorities
reiterating the same dictum have been cited.
This principle, however, has become so well-
established in our jurisprudence that we do not
consider it necessary to specifically refer to
those authorities in this judgment. But having
regard to Clause 9(4) of the 2000 Regulations,
we do not think provision for reservation of
in-service doctors by the State from the State-
wise merit list published in pursuance of that
provision would result in deviation from a
mandatory statutory scheme. The aforesaid sub-
clause is required to be construed in the light
of the State’s power to make provisions over
225
the admission norms, provided the candidates
fulfil the basic admission criteria contained
in the 2000 Regulations. Having regard to the
legal and factual context of this case and
considering the fact that the issue of
legislative competence arises in respect of an
entry belonging to shared, and not exclusive
field of legislations, in our opinion the said
sub-clause cannot be interpreted to mean that
the State is denuded of the power to make a
separate channel of admission to the said
courses for in-service doctors from the State
merit list. This is an issue of legislative
competence and the Nazir Ahmed dictum does not
come into conflict with the interpretation we
are giving to this clause. Application of that
principle solely on the basis of a Union
legislation, without examining the scope of the
State’s legislative power in the given context,
226
would be contrary to the constitutional scheme
in having concurrent field of legislation. The
said sub-clause does not prescribe specific bar
on the State authorities in providing for such
reservation or such separate entry-channel. The
principle of implied exclusion also would not
apply here in our opinion. The principle of
implied exclusion is derived from the latin
dictum “expressio unius est exclusio
alterius”. There are authorities, which caution
the Courts against indiscriminate application
of this doctrine, describing it to be a
“dangerous master” ( Mary Angel and Ors. vs.
State of Tamil Nadu (1999) 5 SCC 209, State of
Karnataka vs. Union of India & Anr. (1977) 4
SCC 608, and Assistant Collector of Central
Excise vs. National Tobacco of India Ltd.
(1972) 2 SCC 560).
227
36. When a subject falls in a shared field
of legislation, there may be cases where the
dominant legislative body may not have had made
provisions in a legislative instrument for
which it had power to do so. But in such a
situation the dominant legislative body cannot
prevent the secondary legislative body from
making provisions in that regard. We would make
it clear here that we are using the terms
“dominant legislative body” to describe the
Union legislature and “secondary legislative
body” to refer to the State legislature in the
context of the concurrent list only. We are
doing so because in case of repugnancy between
two legislative instruments originating from
the Union and the State legislatures in
relation to any entry therein, the former is to
prevail as per the constitutional scheme.
Turning back to the aspect of occupied field,
228
if certain areas of legislative entry is left
void by the Union Legislature, these void areas
would come within the legislative power of the
secondary legislative body as the
constitutional entry gives both the legislative
bodies co-existing, power to legislate on such
subjects. Clause 9 of the 2000 Regulations is
no doubt a self-contained code. But as we have
already observed, it is not an exhaustive code
covering all aspects of admission in
postgraduate medical degree courses. The scope
of this code and extent of its operation has
been explained by this Court in the case of
Yatinkumar Jasubhai Patel & Ors. (supra).
Negation of power of the State cannot be a
matter of inference, or such negation cannot be
in anticipation that the Union Legislature may
make provisions in future in the vacant
legislative space. The authorities in support
229
of this proposition are West U.P. Sugar Mills
Association & Ors vs. State of Uttar Pradesh &
Ors. (2020 SCC Online SC 380), U.P. Cooperative
Cane Unions Federations vs. West U.P. Sugar
Mills Association & Ors. [(2004) 5 SCC 430],
S.R. Bommai & Ors. vs. Union of India & Ors.
[(1994) 3 SCC 1] and Tika Ramji & Ors.etc vs.
State of U.P.& Ors (AIR 1956 SC 676). Only in
cases where the State legislature makes a law
repugnant to any provision of law made by the
Parliament, the Parliamentary law would
prevail. We do not find the 2000 Regulations so
overwhelming in its scope and extent that we
can proceed on the presumption that the entire
field of admission to postgraduate medical
course stands covered by it. In the facts of
the given case, we do not think we can proceed
on the basis of there being implied repugnancy.
Such repugnancy has to be direct and positive.
230
37. Is there any vacant space for State to
prescribe a separate entry-channel for in-
service doctors, having regard to the
admission process laid down in the 2000
Regulations? In the case of Modern Dental
College (supra), it has been observed,
referring to the earlier Entry 11 of List II,
that the States had exclusive power to
legislate with respect to all aspects of
education barring determination of standards
and coordination by the Parliament. In the
case of Preeti Srivastava (supra), legislative
competence of the State making admission rules
not inconsistent with the standards set down
by the Union Legislature has been
acknowledged. It has been observed in the
judgment of Modern Dental College (supra) that
except the determination of minimum standards
and coordination, State’s power in regulating
231
medical education was preserved. When the said
entry (i.e. Entry 11 of List II) was brought
nd
to the Concurrent List by 42 Amendment to the
Constitution of India, the form of State’s
power remained the same, provided of course
there was no repugnancy of a State statutory
instrument with any Union legislative
provisions covering the same subject.
38. We are of the opinion that the admission
process stipulating a distinct source of entry
for in-service candidates by itself would not
constitute breach of the provisions of Clause
9 of the 2000 Regulations, provided that the
minimum standards mandated by the said
Regulations for being eligible to pursue
postgraduate medical degree course are adhered
to. A separate source of entry for in-service
doctors through the State merit list in our
view would come within the legislative power
232
and competence of the State. We also take
note of the fact that reservation for in-
service doctors has been a long standing
practise and the rationale behind such
reservation appears to be reasonable to us.
But we refrain from dilating on the necessity
of maintaining such practise as in this
judgment, we are primarily concerned with the
question of competence of State authorities in
making Rules providing for such reservation.
39. Clause 9(4) of the 2000 Regulations
stipulates entry into the postgraduate courses
from the two merit lists, one all India and
the other that of the State. The same was the
scheme of Clause 9(IV) in its erstwhile form.
The dispute in these proceedings, however, is
mainly on admission norms to postgraduate
degree courses. If the State authorities
provide reservation for in-service doctors
233
from within the State’s own merit list, our
view is that such an exercise would be
relatable to the admission process and the
same would not be in breach of any prohibition
flowing from the 2000 Regulations. This would
entail some form of variation of the merit
list of the State, but we do not find any
prohibition under the 2000 Regulations against
a State undertaking that exercise. Such step
undertaken by the State would be relatable to
the State’s legislative power derived from
Entry 25 of the Concurrent List and not
covered by the 2000 Regulations. We do not
find any repugnancy with the 2000 Regulations
if the State authorities create such a
distinct channel of entry.
40. In the case of Gopal D. Tirthani (supra),
there was reservation for in-service
candidates. This was found to be a separate
234
and exclusive channel of entry or source of
admission. As we have already observed, having
a separate entry-channel for in-service
candidates to postgraduate medical courses
has been a long standing practise. The Bench
of three Hon’ble Judges of this Court in the
case of Dinesh Singh Chauhan (supra) sought to
distinguish this factor on the ground that the
provisions of Clause 9, which was applicable
at that time the case of Gopal D. Tirthani
(supra) was decided, was different from its
form as it subsisted when the former case was
decided. But the relevant clause, as
reproduced in the judgment of Gopal D.
Tirthani (supra) did not contain any provision
for separate entry route for in-service
candidates. Paragraph 6 of the said judgment
[reported in 2003 (7) SCC 83] reproduces
235
Clause 9(1) as it prevailed then. We are
quoting below the said paragraph:-
“6. Regulation 9 of the
Regulations framed by the Medical
Council of India reads as
follows:-
“9. Selection of
postgraduate students-(1)
Students for postgraduate
medical courses shall be
selected strictly on the basis
of their academic merit.
For determining the academic
merit, the
university/institution may
adopt any one of the following
procedures both for degree and
diploma courses:
(i) on the basis of merit as
determined by a competitive test
conducted by the State Government
or by the competitive authority
appointed by the State Government
or by the university/group of
universities in the same State;
(ii) on the basis of merit as
determined by centralized test
held at the national level; or
(iii) on the basis of the
individual cumulative performance
at the first, second and third
MBBS examinations, if such
examinations have been passed
from the same university; or
(iv) combination of (i) and
(iii)
236
Provided that whatever
entrance test for postgraduate
admissions is held by a State
Government or a university or any
other authorized examining body,
the minimum percentage of marks
for eligibility for admission to
postgraduate medical course shall
be fifty per cent for all the
candidates:
Provided further that in non-
governmental institutions fifty
per cent of the total seats shall
be filled by the competent
authority and the remaining fifty
per cent by the management of the
institution on the basis of
merit.”
41. The selection criteria as contained in
Clause 9 of the 2000 Regulations, which was
considered by this Court in the case of Gopal
D. Tirthani (supra) and the content of Clause
9, which is the subject of dispute in the
present set of proceedings are no doubt not
identical. But the said clause which was
examined in the case of Gopal D. Tirthani
(supra) had a merit based approach.
Reservation of in-service candidates was made
237
through Executive Orders of the State
Government. We are not to undertake a word to
word comparison of Clause 9 as it prevailed at
different points of time. What matters here
is that in its original or earlier version, no
provision for reservation or separate entry-
channel for in-service doctors has been shown
to us by any of the learned counsel
appearing for the parties. The State
Government Orders laid down such distinct
source of entry. Interpretation of the same
clause in its present form should also be
based on the same underlying reasoning.
42. Because of these reasons, we hold that
there is no bar in Clause 9 of the
Postgraduate Medical Education Regulations,
th
2000 as it prevailed on 15 February 2012 and
th
subsequently amended on 5 April, 2018 on
238
individual States in providing for reservation
of in-service doctors for admission into
postgraduate medical degree courses. But to
take benefit of such separate entry channel,
the aspiring in-service doctors must clear the
NEET Examination with the minimum prescribed
marks as stipulated in the 2000 Regulations.
We respectfully differ from the views
expressed by the Bench of three Hon’ble Judges
of this Court in the case of the State of
Uttar Pradesh & Ors. vs. Dinesh Singh Chauhan
[(2016) 9 SCC 749] to the extent it has been
held in the said decision that reservation for
the said category of in-service doctors by the
State would be contrary to the provisions of
2000 Regulations. In our opinion, that is not
the correct view under the Constitution. The
reference is answered accordingly.
239
43. We also expect that the statutory
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 in-service channel execute bonds
for such sum the respective States may
consider fit and proper.
44. So far as the appeals against the judgment
of the Calcutta High Court are concerned, we
are of the opinion that the judgment and order
240
of the High Court at Calcutta in MAT No.1222
of 2019 ( Dr. Md. Babul Akhtar and Ors. vs. Dr.
Md. Nazir Hossain & Ors. ) along with the
allied appeals were not founded on proper
interpretation of law for the reasons we have
already discussed. We accordingly set aside
st
the judgment under appeal, delivered on 1
October, 2019. All the appeals are
th
accordingly allowed. The memorandum dated 18
April, 2013 is restored and the writ petition
filed in the High Court at Calcutta (W.P.
No.8990(W) of 2019) shall stand dismissed. The
writ petitions filed before this Court being W.P.
(Civil) No. 196 of 2018, W.P. (C) No.252 of 2018,
W.P.(C) No. 295 of 2018 and W.P.(C) No. 293 of
2018 shall stand allowed in the above terms.
45. We, however, direct that the doctors who
are already undergoing the postgraduate degree
courses on the basis of being successful in
241
the original writ petition filed in the High
Court at Calcutta shall not be disturbed from
pursuing the said course. The same direction
shall also cover successful medical students
who have already undertaken admission in
postgraduate medical degree courses following
the applicable admission process and are
pursuing their postgraduate studies in the
States of Gujarat, Haryana, Kerala,
Maharashtra and Tamil Nadu.
46. All connected applications shall stand
disposed of. Interim orders, if any shall stand
dissolved.
47. There shall be no order as to costs.
……………………………………J.
[ARUN MISHRA
……………………………………J.
[INDIRA BANERJEE]
242
……………………………………J.
[VINEET SARAN]
……………………………………J.
[M.R. SHAH]
……………………………………J.
[ANIRUDDHA BOSE]
NEW DELHI;
AUGUST 31, 2020.
