Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO(S).196/2018
TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS. PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. RESPONDENT(S)
WITH
W.P.(C) NO. 252/2018
W.P.(C) NO. 295/2018
W.P.(C) NO. 293/2018
O R D E R
1. Issue notice in the fresh writ petitions.
2. Standing Counsel for the concerned States, Union
of India and Medical Council of India appear and
accept notice for the respective parties.
3. In these writ petitions, Regulation 9(IV) and
(VII), after amendment dated 05.04.2018 – Regulation
9(4) and (8) of the Post Graduate Medical Education
Regulations, 2000, as framed by the Medical Council
of India, are under challenge.
4. To get a comprehensive idea, Regulation 9, to the
extent relevant up to sub-regulation (8), reads as
Signature Not Verified
follows:-
Digitally signed by
NARENDRA PRASAD
Date: 2018.04.13
21:08:46 IST
Reason:
“9. Procedure for selection of candidate
for Postgraduate courses shall be as
1
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 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 minimum
marks shall be at 45th percentile for
General Category and 40th 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 consultation with
Medical Council of India may at its
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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 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
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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 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. …”
5. This was subject matter of a Three-Judge Bench
decision of this Court in State of Uttar Pradesh and
Others v. Dinesh Singh Chauhan, reported in (2016) 9
SCC 749. There have been some minor amendments
thereafter in Regulation 9. The relevant
4
consideration of Regulation 9 (4) in Dinesh Singh
Chauhan (supra) is at paragraphs 24 to 27, which read
as follows:-
“24. By now, it is well established that
Regulation 9 is a self-contained code regard-
ing the procedure to be followed for admis-
sions to medical courses. It is also well es-
tablished that the State has no authority to
enact any law much less by executive instruc-
tions that may undermine the procedure for
admission to postgraduate medical courses
enunciated by the Central legislation and
regulations framed thereunder, being a sub-
ject falling within Schedule VII List I Entry
66 of the Constitution (see Preeti Srivastava
5
v. State of M.P. ). The procedure for selec-
tion of candidates for the postgraduate de-
gree courses is one such area on which the
Central legislation and regulations must pre-
vail.
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 admis-
sion to postgraduate “degree” courses. Regu-
lation 9 is a composite provision prescribing
procedure for selection of candidates—both
for postgraduate “degree” as well as post-
graduate “diploma” courses:
25.1. Clause (I) of Regulation 9 mandates
that there shall be a single National Eligi-
bility-cum-Entrance Test (hereinafter re-
ferred 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 eligibil-
ity for admission to any postgraduate course
in a particular academic year.
25.4. Clause (IV) is the relevant provi-
sion. It provides for reservation of seats in
medical colleges/institutions for reserved
5
categories as per applicable laws prevailing
in States/Union 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 State-
wise merit list of the eligible candidates
shall be prepared on the basis of the marks
obtained in NEET and the admission to post-
graduate 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, con-
tains a proviso. It predicates that in deter-
mining the merit of candidates who are in
service of the Government or a public author-
ity, weightage in the marks may be given by
the Government/competent authority as an in-
centive @ 10% of the marks obtained for each
year of service in specified remote or diffi-
cult areas of the State up to the maximum of
30% of the marks obtained in NEET. This pro-
vision even if read liberally does not pro-
vide for reservation for in-service candi-
dates, 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).
26. From the plain language of this pro-
viso, it is amply clear that it does not en-
visage 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 “de-
gree” 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.
6
27. Thus understood, the Central enactment
and the regulations framed thereunder do not
provide for reservation for in-service candi-
dates in postgraduate “degree” courses. As
there is no express provision prohibiting
reservation to in-service candidates in re-
spect 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 candi-
dates. 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 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, how-
ever, 50% seats are earmarked for the post-
graduate “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 per-
missible for admission to postgraduate “de-
gree” 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 govern-
ment order being contrary to the mandate of
Regulation 9 of the 2000 Regulations, as ap-
plicable from the academic year 2013-2014.”
6. Learned senior counsel for the petitioners have
7
vehemently contended that at least three Constitution
Bench decisions of this Court, namely, R. Chitralekha
and Another v. State of Mysore and Others, reported
in (1964) 6 SCR 368, Kumari Chitra Ghosh and Another
v. Union of India and Others, reported in (1969) 2
SCC 228 and Modern Dental College and Research Centre
and Others v. State of Madhya Pradesh and Others,
reported in (2016) 7 SCC 353, have not been
considered in Dinesh Singh Chauhan (supra), on the
aspect of the legislative competence under List I,
Entry 66 and List III, Entry 25 of the Seventh
Schedule. List I Entry 66, reads as follows:-
“66. Co-ordination and determination of
standards in institutions for higher
education or research and scientific and
technical institutions.”
7. Entry 25 of List III, reads 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.”
8. The main dispute pertains to the claim made by the
State for reservation in favour of the in-service
candidates in respect of 50% of the seats granted to
the States, since 50% of the seats, in any case are
set apart for All-India category.
8
9. It is the main contention of the petitioners that
while “the coordination and determination of
standards in institutions for higher education” is
within the exclusive domain of the Union, medical
education under Entry 25, List III, though made
subject to Entry 66 of List I, being an Entry in the
Concurrent List, the State is not denuded of its
power to legislate on the manner and method for
admissions to Post Graduate Medical Courses.
10. It is submitted that though Regulation 9(4)
provides for 10% incentive for every year of service
in remote/difficult/rural areas up to a maximum of
30% of the score, the provision will not enure to the
benefit of the in-service candidates. It is pointed
out that the States have been following, for several
reasons and for several years, the pattern of
reservation in respect of 50% of State Quota for the
in-service candidates. It is submitted that even in
that 50%, the list can be prepared by providing the
incentive for the service in difficult, rural or
remote areas. It is also pointed out that the
Regulations also have considered the power of the
State to provide for reservation. This can be seen
from Regulation 9(8) which provides for reservation
of 50% of the seats in Post Graduate Diploma Courses
for medical officers in Government service in the
9
State who have served for at least three years in
remote and difficult areas with a further condition
of minimum continued service of two years in such
areas. It is also the contention of the petitioners
that if there can be such a reservation in the case
of Post Graduate Diploma Courses, there is no
justification for denying such a reservation in case
of the Post Graduate Degree Courses.
11. On behalf of the Union of India and the Medical
Council of India, it is pointed out that once an
Entry is provided under List I, it is the exclusive
domain of the Union and even if the Union has not
legislated exhaustively in respect of that Entry, the
State cannot legislate on that subject. Our
reference has been invited to the decision of this
Court in Gujarat University and Another v. Krishna
Ranganath Mudholkar and Others, reported in (1963)
Suppl. 1 SCR 112. In any case, it is pointed out
that all the contentions raised by the petitioners
have been considered in Dinesh Singh Chauhan (supra)
and, therefore, the writ petitions are only to be
dismissed.
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
10
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
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.
17. The petitioners are free to make a mention on
11
th
Monday, the 16 April, 2018 before Hon’ble the Chief
Justice of India.
.......................J.
[KURIAN JOSEPH]
.......................J.
[MOHAN M. SHANTANAGOUDAR]
.......................J.
[NAVIN SINHA]
NEW DELHI;
APRIL 13, 2018.
12
ITEM NO.55 COURT NO.5 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 196/2018
TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS. Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
WITH
W.P.(C) No. 252/2018 (X)
W.P.(C) No. 295/2018 (X)
W.P.(C) No. 293/2018 (X)
Date : 13-04-2018 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
HON'BLE MR. JUSTICE NAVIN SINHA
For the parties
Mr. Mukul Rohatgi,Sr.Adv.
Mr. Arvind Datar,Sr.Adv.
Mr. K.V. Viswanathan,Sr.Adv.
Mr. Ajay Bhargava,Adv.
Ms. Vanita Bhargava,Adv.
Ms. Saman Ahasn,Adv.
Mr. Aayush Jain,Adv.
Mr. Kunal Vajani,Adv.
Mr. Ankur Ved Tuli,Adv.
For M/s. Khaitan & Co.
Mr. Vikas Singh,Sr.Adv.
Mr. Gaurav Sharma, AOR
Mr. Dhawal Mohan,Adv.
Mr. Amandeep Kaur,Adv.
Mr. Prateek Bhatia,Adv.
Mr. Abhishek,Adv.
Shresty Banerjee,Adv.
Ms. Mansi Sharma,Adv.
Mr. R. Venkatramani,Sr.Adv.
Mr. Jose Abraham, AOR
Mr. M.P. Srivignesh,Adv.
Mr. Yashraj Bundela,Adv.
Mr. Sreenath S.,Adv.
13
Mr. Ajit Kumar Sinha,Sr.Adv.
Mr. Sarad Kumar Singhania,Adv.
Dr. Nilesh Sharma,Adv.
Mr. Gurmeet Singh Makker, AOR
Mr. v. Giri,Sr.Adv.
Mr. K.V. Vijaykumar,Adv.
Ms. Maitreyee Mishra,Adv.
Mr. K.V. Ram Kumar,Adv.
Mr. G. Prakash,Adv.
Mr. Jishnu M.L.,Adv.
Mrs. Priyanka Prakash,Adv.
Mrs. Beena Prakash,Adv.
Mr. Vijay Shankar V.L.,Adv.
UPON hearing the counsel the Court made the following
O R D E R
Issue notice in the fresh writ petitions.
Standing Counsel for the concerned States, Union of
India and Medical Council of India appear and accept notice
for the respective parties.
In terms of the signed order, place the matters before
Hon’ble the Chief Justice of India for consideration by a
larger Bench.
(NARENDRA PRASAD) (RENU DIWAN)
COURT MASTER ASSISTANT REGISTRAR
(Signed “Reportable” order is placed on the file)
14