TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS versus UNION OF INDIA & OTHERS

[2020] 8 S.C.R. 583

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS.

UNION OF INDIA & OTHERS

(Writ Petition (Civil) No. 196 of 2018)

AUGUST 31, 2020

[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Medical Council of India Post Graduate Medical EducationRegulations, 2000:

Regulations 9(IV) and (VII) (as it stood prior to 5[th] April2018) and 9(4) and (8) (as it stood after amendment dated 5[th] April2018) – Whether take away the power of State Governments toreserve seats in Post-Graduate Medical degree courses for in-service medical professionals – Held: Per Shah, J. – In exerciseof power under Entry 25 of List III of Seventh Schedule to theConstitution, State has power with respect to reservation/ percentageof reservation and/ or mode of admission within State quota –Scope of Entry 66 of List I to Seventh Schedule is limited toprescribe the standard of education – The source of power toMedical Council of India (MCI) to frame Regulations is from s.2.33 of MCI Act which is emanating from Entry 66 of List I –Regulation 9(IV) is limited to reservation in favour of SC/ ST/ OBC– Therefore, Regulation 9(IV) cannot be said to be taking awaypower of States under Entry 25, List III, to provide separate sourceof entry for in-service candidates – There is legitimate rationalbasis in providing separate source of entry to in-servicecandidates – Such act of the State is in discharge of itsconstitutional obligation provided u/Art. 47 which is correspondingfundamental right u/Art. 21 of the Constitution – ThereforeRegulation 9, to the extent it tinkers with the reservation providedby State to in-service doctors, is ultra vires on the ground that it isarbitrary, discriminatory and violative of Arts. 14 and 21 ofConstitution – However, the doctors who would obtain admissionthrough such separate channel, need to serve the State in rural,tribal and hilly areas at least for five years after obtaining thedegree – Per Bose, J. – Allocation of seats for in-service candidates

Ais only separate or exclusive source of admission which cannotbe equated with reservation provisions incorporated ascompensatory discrimination – The field of legislation in questionis shared field between Union and the State – In such caselegislative disability of the States would occur only when the Unionlegislation covers the same subject on which State undertakesBlegislative exercise and the State legislative instrument is found tobe repugnant – Such repugnancy has to be direct and positive –There cannot be implied repugnancy – If certain area of legislativeentry is left void by Union, this void can be filled by the Statelegislature – The Regulations in question, though self-containedCcode are not an exhaustive code covering all the aspects ofadmission in post-graduate medical degree courses – The provisionfor reservation in clause 9(4) for in-service doctors by the Statefrom State-wise merit list, cannot be interpreted to mean that theState is denuded of its power to make separate channel ofadmission – There is no bar on the State Authorities to provide forDsuch reservation – Therefore, such reservation provided by the Statewould not be contrary to the Regulations – The doctors inemployment form separate and distinct class and hence can begiven certain element of preference – But to take benefit of suchseparate entry channel, the aspiring in-service doctors must clearENEET Examination with minimum prescribed marks – In order toavail the separate source of entry, the State should make minimumservice in rural, remote or difficult areas for specified periodbefore seeking admission and subsequent to obtaining the degree– Constitution of India – Arts. 14, 21, 47, 245, Schedule VII,List I, Entry 66, List III, Entry 25.F

Disposing of the matters, the Court

HELD:

PER M. R. SHAH, J.

G1.1. Entry 66 of List I of Seventh Schedule of theConstitution is specific entry having very specific and limitedscope. It deals with “Coordination and Determination ofStandards” in institutions of higher education or research as wellas scientific and technical institutions. The words “Coordinationand Determination of Standards” would mean laying down theH

said standards and therefore when it comes to prescribe thestandards for such institutions of higher learning, exclusivedomain is given to the Union. That would not include conductingof examination etc. and admission of students to such institutionsor prescribing the fee in these institutions of higher education,etc. Thus, in exercise of powers under Entry 66 List I, the Unioncannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission withinthe State quota, which powers are conferred upon the Statesunder Entry 25 of List III. In exercise of powers under Entry25 List III, the States have power to make provision for modeof admissions, looking to the requirements and/or need in theconcerned State. [Para 10.1][652-G-H; 653-A-C]

Modern Dental College and Research Centre andOthers v. State of Madhya Pradesh and Others (2016)7 SCC 353 : [2016] 3 SCR 579 – followed.

Gujarat University v. Krishna Ranganath Mudholkar(1963) Suppl. 1 SCR 112 ; R. Chitralekha v. State ofMysore [1964] 6 SCR 368 ; Dr. Preeti Srivastava &Anr. v. State of M.P. & Ors. (1999) 7 SCC 120 : [1999]1 Suppl. SCR 249 ; Bharati Vidyapeeth v. State ofMaharashtra (2004) 11 SCC 755 : [2004] 2 SCR 775– relied on.

1.2 Post Graduate Medical Education Regulations, 2000are framed by the Medical Council of India (MCI) in exerciseof its powers conferred under Section 33 of the Indian MedicalCouncil Act, 1956 (MCI Act). The MCI Act has been enacted/passed by the Union in exercise of powers conferred under Entry66, List I. Therefore, the main source of power of the MCI wouldbe from Entry 66 List I. As per Section 33 of the MCI Act, theCouncil may with the previous sanction of the CentralGovernment make regulations generally to carry out thepurpose of the said Act. Therefore, in exercise of powers underSection 33 of the MCI Act, Regulations 2000 are made by theMCI. [Para 11.2][657-F-G]

D.N. Chanchala v. The State of Mysore and Ors.(1971) 2 SCC 293 ; Pradeep Jain v. Union of India

586SUPREME COURT REPORTS

[2020] 8 S.C.R.

A(1984) 3 SCC 654 : [1984] 3 SCR 942 ; Dr. DineshKumar v. Motilal Nehru Medical College, Allahabad(1986) 3 SCC 727 : [1986] 3 SCR 345 ; GujaratUniversity v. Rajiv Gopinath Bhatt (1996) 4 SCC 60 :[1996] 2 Suppl. SCR 184 AIIMS Students Union v.AIIMS (2002) 1 SCC 428 : [2001] 2 Suppl. SCR 79 ;BSaurabh Chaudri v. Union of India (2003) 11 SCC 146: [2003] 5 Suppl. SCR 152 ; Yatinkumar JasubhaiPatel & Ors v. State of Gujarat and Ors (2019) 10SCC 1 : [2019] 12 SCR 848 – relied on.

1.3 On fair reading of entire Section 33 of the MCI Act,Cit does not confer any authority and/or power to the MCI toframe the regulations with respect to reservation in the medicalcourses, more particularly, to provide for separate source ofentry for in-service candidates seeking admission topostgraduate degree courses. [Para 11.3][660-B-C]

D1.4 The first part of Regulation 9(IV) speaks for thereservation of seats in medical colleges/institutions. It providesthat the reservation of seats in medical colleges/institutions forrespective categories shall be as per applicable laws prevailingin States/Union Territories. It further provides for preparing all-EIndia merit list as well as State-wise merit list of the eligiblecandidates on the basis of the marks obtained in NEET andcandidates shall be admitted to postgraduate courses from thesaid merit lists only. To that stage, it can be said that the sameis within the legislative competence of the Union/MCI, inexercise of powers under Entry 66 List I. However, proviso toFRegulation 9(IV) further provides that in determining the meritof 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 themarks obtained for each year of service in remote and/or difficultGareas up to the maximum of 30% of the marks obtained in NEET.It further provides that the remote and difficult areas shall beas defined by the State Government/competent authority fromtime to time. Thus, it can be seen that even the proviso can besaid to be with respect to preparing the merit list only.Regulation 9(IV) is limited only to reservation in favour of SC/HST/OBC and as per the prevailing laws in the States. If that be

so, then the proviso which as such is not dealing with thereservation cannot be said to be in the form of an exception tofirst part of Regulation 9(IV) and it can be seen that it is anindependent provision dealing with the in-service candidates andthat too for the purpose of preparing the merit list. Thus, theproviso becomes the substantive provision and is moreconcerned with the marks to be allocated which is the concernof Regulation 9(III). The proviso only enables the States byconferring the discretion for weightage. The proviso has nothingto do with the reservation in the postgraduate degree coursesand therefore it shall not negate the State’s power to makereservation and/or make special provision to provide for aseparate source of entry for in-service candidates seekingadmission to postgraduate degree courses. Thus, Regulation9(IV) as such cannot be said to be taking away the power of theStates under Entry 25, List III, to provide for separate sourceof entry for in-service candidates seeking admission topostgraduate degree courses. [Paras 12 and 12.1][660-F-H; 661-A-F]

1.5 If it is construed that Regulation 9 of the MCIRegulations, more particularly Regulation 9(IV) provides forreservation and/or deals with the reservation for in-servicecandidates, in that case, it will be beyond the legislativecompetence of the Union as well as it will be ultra vires the MCIAct. Section 33 of the MCI Act does not confer any power onthe MCI to make regulations with respect to reservation.“Institutional preference”, despite MCI Regulations has beenupheld and held to be permissible by the concerned States.[Para 12.1][661-G-H; 662-A]

Kumari Chitra Ghosh and Anr. v. Union of India & Ors.(1969) 2 SCC 228 : [1970] 1 SCR 413 – referred to.

2.1 It has been consistently held by this Court that thereis legitimate and rational basis in providing separate channel/source of entry for in-service candidates in order to encouragethem to offer their services and expertise to the State. There isa sufficient nexus with the larger goal of equalization ofeducational opportunities and to sufficiently prefer the doctorsserving in the various hospitals run and maintained out of public

Afunds, in the absence of which there would be serious dearth ofqualified Post-graduate doctors to meet the requirements of thecommon public. That the Government is facing public healthcrisis. The effective and competent medical treatment is notavailable in the rural and difficult areas. In-service doctors whopursue higher studies would naturally serve in rural and difficultBareas if such incentive in the form of reservation is provided.[Para 15][680-G-H; 681-A]

K Duraiswamy & Anr v. State of Tamil Nadu and Ors.(2001) 2 SCC 538 : [2001] 1 SCR 490 ; State ofMadhya Pradesh & Ors v. Gopal Tirthani and OrsC(2003) 7 SCC 83 : [2003] 1 Suppl. SCR 797 ; SudhirN v. State of Kerala and Ors. (2015) 6 SCC 685 :[2015] 1 SCR 884 – relied on.

State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC749 : [2016] 6 SCR 571 – referred to.D

2.2 The action of the State to provide for the in-servicequota is in the discharge of its positive constitutional obligationsto promote and provide better health care facilities for itscitizens by upgrading the qualifications of the existing in-servicedoctors so that the citizens may get more specialized health careEfacility. Such action is in discharge of its constitutional obligationsas provided in Article 47 of the Constitution of India, which isthe corresponding fundamental right of the citizens protectedunder Article 21 of the Constitution of India. It is settled lawthat Article 21 of the Constitution of India confers on the citizensFof India fundamental right to life and personal liberty. Right tohealth is integral part of the Right to life and is facet of Article21. [Paras 15.1 and 15.2][681-B-D]

Municipal Council, Ratlam v. Vardhichand [1981] 1SCR 97 ; Devika Biswas v. Union of India (2016) 10GSCC 726 ; CESC Ltd. v. Subhash Chandra Bose (1992)1 SCC 441 : [1991] 2 Suppl. SCR 267 ; PaschimBanga Khet Mazdoor Samity v. State of West Bengal[1996] 2 Suppl. SCR 331 ; Association of MedicalSuperspeciality Aspirants & Residents v. Union ofIndia (2019) 8 SCC 607 : [2019] 12 SCR 1011– reliedHon.

2.3 healthy body is the very foundation for all humanactivities. In welfare State, therefore, it is the obligation of theState to ensure the creation and the sustaining of conditionscongenial to good health. Maintenance and improvement ofpublic health have to rank high as these are indispensable tothe very physical existence of the community and on thebetterment of these depends the building of the society of whichthe Constitution makers envisaged. Even otherwise, the powerof the State under Entry 6, List II of Schedule VII to legislatein the subject matter of public health and hospital is exclusive.[Paras 15.4 and 15.7][683-A-B, F]

Vincent Panikurlangara v. Union of India AIR 1987SC 990 : [1987] 2 SCR 468 – relied on.

2.4 Thus, when the State provides separate source ofadmission for in-service doctors as distinct class and withinthe State quota and the object is laudable, the State is within itspower to provide such separate source of admission in exerciseof the powers under Entry 25 List III, read with Entry 6, ListII. It cannot be said that there is no nexus with the laudableobject of meeting the requirement of qualified postgraduatedoctors for the public health services, more particularly, in therural, tribal and difficult areas. As such, there is no conflictbetween the power of the Union and the State. [Para 15.9][684-B-D]2.5 The occupied field of Union legislation in exercise ofpower under Entry 66, List I is related to minimum standardsof medical education and the State is providing the in-servicequota without impinging the prescribed minimum standards.[Para 15.9][684-D]

2.6 It is settled proposition of law that in case of twoentries might be overlapping, in that case, the interpretationmust be in furtherance of achieving the ultimate object, in thepresent case to provide better health care in the rural, tribal anddifficult areas. Any interpretation which would negate and/orbecome nugatory the other entry, is to be avoided. There mustbe harmonious reading between the two entries. In the presentcase, as such there shall not be any conflict between the powerof the Union and the State, while exercising the powers under

AEntry 66 List I by the Union and under Entry 25 List III by theStates. Therefore, as such, the State is within its power and isempowered to make reservation in the seats of thepostgraduate medical courses, more particularly, for in-servicedoctors. [Para 15.9][684-D-F]

B2.7 In the federal structure, the State, as well as theParliament, have constitutional directive for the upliftment ofScheduled Castes, Scheduled Tribes, and socially and backwardclasses. Therefore, the State Government have the right toprovide reservation and in the field of employment andeducation, looking to the specific/special need of publicCrequirement in the particular area. There is no constitutional barto take further affirmative action as taken by the StateGovernment in the cases to achieve the goal. [Para 15.10][684-G-H]

2.8 The State has the legislative competence and/orDauthority to provide for separate source of entry for in-servicecandidates seeking admission to postgraduate degree/diplomacourses, in exercise of powers under Entry 25, List III.However, it is observed that policy must provide that subsequentto obtaining the postgraduate degree by the concerned in-Eservice doctors obtaining entry in degree courses through suchseparate channel serve the State in the rural, tribal and hillyareas at least for five years after obtaining the degree/diplomaand for that they will execute bonds for such sum the respectiveStates may consider fit and proper. [Para 20 (8)][688-B-D]

F3.1 Regulation 9, more particularly Regulation 9(VII)makes provision for reservation for in-service candidates foradmission to postgraduate diploma courses only. However, thereis no reason coming out of either from the Regulations or in anyform of material produced by the MCI showing as to on whatbasis MCI takes stand that similar in-service reservation isGnot permissible for admission to postgraduate degree courses.Therefore, if the very concept of in-service reservation ispermissible and incorporated in the MCI Regulations, 2000,opposition to similar reservation for postgraduate degreecourses is unreasonable and irrational. [Para 17][685-D-E]

3.2 The subsequent amendment in the year 2018, as madeby notification dated 12.07.2018, provides that medical college/medical institution shall be entitled to seek equal number of PostGraduate Degree (MD/MS) seats by surrendering recogniseddiploma seats in corresponding course. In view of the above, ithas so happened that by and large in every State the diplomaseats are converted in PG Degree (MD/MS) seats bysurrendering recognised diploma seats. The resultant effect isthat in-service candidates/doctors shall not be entitled to anyseat even in PG Diploma courses which has been provided underRegulation 9(VII) of MCI Regulations 2000, as amended fromtime to time. Therefore, ultimately, it will affect the public healthand the common people in the rural, tribal and hilly areas wherethere is dearth of good and highly qualified doctors. Therefore,if the rights of the States to provide such reservation for in-service doctors in postgraduate degree/diploma courses is notrecognised, in that case, the ultimate sufferer would be the publichealth and the common people, particularly the people residingin rural, tribal and hilly areas. [Para 19][686-D-G]

4. The observations in the case of *Sudhir N thatRegulation 9 is complete code in itself may not be construedwith respect to providing reservation and/or making specialprovision like providing separate source of entry for in-servicecandidates within the State quota and subject to fulfilling of othercriteria fixed and provided by the MCI. Therefore, theobservations made by this Court in the case of **Dinesh SinghChauhan and as held by this Court in the case of Sudhir N thatRegulation 9 is complete code in itself cannot be accepted andis held to be not good law. [Para 18.1][686-B-C]

*Sudhir N v. State of Kerala and Ors. (2015) 6 SCC685 : [2015] 1 SCR 884 ; **State of U.P. v. DineshSingh Chauhan (2016) 9 SCC 749 : [2016] 6 SCR 571– held not good law.

5. It is specifically observed and clarified that the presentdecision shall operate prospectively and any admissions givenearlier taking contrary view shall not be affected by thisjudgment. [Para 20][688-D-E]

AT.N. Medical Officers Association v. Union of India(2018) 17 SCC 478 : [2018] 3 SCR 541 ; Pre-PGMedical Sangharsh Committee v. Dr. Bajrang Soni(2001) 8 SCC 694 : [2001] 1 Suppl. SCR 506 ; TamilNadu Medical Officers Association v. Union of India(2018) 17 SCC 426 : [2018] 3 SCR 551 ; NarayanBSharma (Dr) v. Pankaj Kr. Lekhar (Dr) (2000) 1 SCC44 : [1999] 4 Suppl. SCR 364 – referred to.

PER ANIRUDDHA BOSE, J.

Held: 1.1 Legislations pertaining to medical education isCprimarily guided by two entries of the Seventh Schedule to theConstitution of India, being Entry 66 of List I (Union List) andEntry 25 of List III (Concurrent List). [Para 2][689-D]

1.2 Two other entries in the State List are the source ofState’s power to effect such reservation. Entry 6 in the State ListDcovers “Public Health and Sanitation; hospitals anddispensaries”. Entry 32 of the same List specifies Incorporation,regulation and winding up of corporation, other than thosespecified in List I, and universities, unincorporated trading,literary, scientific, religious and other societies and associations;co-operative societies.” Admission to postgraduate degreeEcourses in medical education cannot be linked to the subject-heads specified against the said two entries. The consequenceof reservation of this nature may have impact on functioning ofthe institutes vis-à-vis the items referred to in the said twoentries, but the said entries cannot be linked to any statutoryFinstrument originating from State providing for reservation ofin-service doctors in postgraduate medical degree courses.[Para 3][690-A-D]1.3 The expression “reservation” used in the presentcase is not “reservation” in the manner the same is referred toGin the Constitution, providing for compensatory discrimination.But so far as the subject-controversy is concerned, thisexpression really implies separate source of entry to thepostgraduate medical degree courses. [Para 3][690-D-E]

1.4 self-contained code can cover only those subjectswhich are contained in such code. If the code does not refer toH

certain matters, which do not have impact on or dilute the mainsubject for which the code is made, appropriate authorities arenot enjoined from making provisions for such uncovered areas.The field of legislation involved in the subject-dispute is sharedfield between the Union and the States. The legislative disabilityof the States would occur only when the Union legislation coversthe same subject on which State undertakes legislative exerciseand the State legislative instrument is found to be repugnant tothe latter. There also can be vacant legislative zones within acode, and such vacant zones can be filled up by the appropriatelegislature. Clause 9(4)(or Clause 9(IV) in its earlier form) ofthe Regulations stipulates that candidates shall be admitted topost-graduate courses from the two merit lists only, as referredto in the said clause. Though it is correct that if statute requiresa thing to be done in particular manner, it must be done inthat manner or not at all. But, application of this principle solelyon the basis of Union legislation, without examining the scopeof the State’s legislative power in the given context, would becontrary to the constitutional scheme in having concurrent fieldof legislation. Having regard to Clause 9(4) of the Regulations,the provision for reservation of in-service doctors by the Statefrom the State-wise merit list published in pursuance of thatprovision would not result in deviation from mandatorystatutory scheme. The aforesaid sub-clause is required to beconstrued in the light of the State’s power to make provisionsover the admission norms, provided the candidates fulfil the basicadmission criteria contained in the Regulations. Having regardto the legal and factual context of the present case andconsidering the fact that the issue of legislative competencearises in respect of an entry belonging to shared, and notexclusive field of legislations, the said sub-clause cannot beinterpreted to mean that the State is denuded of the power tomake separate channel of admission to the said courses forin-service doctors from the State merit list.The said sub-clausedoes not prescribe specific bar on the State authorities inproviding for such reservation or such separate entry-channel.[Para 35][724-C-H; 725-A-D]

Nazir Ahmed v. King Emperor AIR 1936 PC 253 – heldinapplicable.

ABC

DEF

A1.5 The principle of implied exclusion also would not apply.The principle of implied exclusion is derived from the latindictum “expressio unius est exclusio alterius”. There areauthorities, which caution the Courts against indiscriminateapplication of this doctrine, describing it to be “dangerousmaster”. [Para 35][725-D]B

Mary Angel and Ors. v. State of Tamil Nadu (1999) 5SCC 209 : [1999] 3 SCR 594 ; State of Karnataka v.Union of India & Anr. (1977) 4 SCC 608 : [1978] 2SCR 1 ; Assistant Collector of Central Excise v.National Tobacco of India Ltd. (1972) 2 SCC 560 :C[1973] 1 SCR 822 – relied on.

1.6 When subject falls in shared field of legislation,there may be cases where the dominant legislative body may nothave had made provisions in legislative instrument for whichit had power to do so. But in such situation the dominantDlegislative body (i.e. Union Legislature) cannot prevent thesecondary legislative body (State Legislature) from makingprovisions in that regard. If certain areas of legislative entry isleft void by the Union Legislature, these void areas would comewithin the legislative power of the secondary legislative body asthe constitutional entry gives both the legislative bodies co-Eexisting, power to legislate on such subjects. Clause 9 of theRegulations is no doubt self-contained code. But, it is not anexhaustive code covering all aspects of admission inpostgraduate medical degree courses. [Para 36][725-F-H;726-A]F1.7 Negation of power of the State cannot be matter of

F1.7 Negation of power of the State cannot be matter ofinference, or such negation cannot be in anticipation that theUnion Legislature may make provisions in future in the vacantlegislative space. Only in cases where the State legislaturemakes law repugnant to any provision of law made by theParliament, the Parliamentary law would prevail. The entire fieldGof admission to postgraduate medical course cannot be said tobe covered by the Regulations. In the facts of the present case,the Court cannot proceed on the basis of there being impliedrepugnancy. Such repugnancy has to be direct and positive. [Para36][726-B-E]H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v.UNION OF INDIA & OTHERS

West U.P. Sugar Mills Association & Ors v. State ofUttar Pradesh & Ors. (2020) SCC Online SC 380 ;U.P. Cooperative Cane Unions Federations v. West U.P.Sugar Mills Association & Ors. (2004) 5 SCC 430 :[2004] 2 Suppl. SCR 238 ; S.R. Bommai & Ors. vs.Union of India & Ors. (1994) 3 SCC 1 : [1994] 2 SCR644 ; Tika Ramji & Ors.etc v. State of U.P.& Ors. AIR1956 SC 676 : [1956] SCR 393 – relied on.

2.1 Allocation of seats for in-service candidates is only aseparate or exclusive channel of entry or source of admissionand such entry-path cannot be equated with reservationprovisions incorporated as compensatory discrimination. Butclassifying category of candidates for such distinct or separatechannel has been upheld consistently, provided suchcategorisation is based on intelligible differentia. [Para 28][717-G]

Yatinkumar Jasubhai Patel & Ors v. State of Gujaratand Ors (2019) 10 SCC 1 : [2019] 12 SCR 848 ; D.N.Chanchala v. The State of Mysore and Ors. (1971) 2SCC 293 ; K Duraisamy & Anr v. State of Tamil Naduand Ors. (2001) 2 SCC 538 : [2001] 1 SCR 490 ;AIIMS Students Union v. AIIMS (2002) 1 SCC 428 :[2001] 2 Suppl. SCR 79 ; State of Madhya Pradesh& Ors v. Gopal Tirthani and Ors (2003) 7 SCC 83: [2003] 1 Suppl. SCR 797 ; Dr. Snehalata Patnaik &Ors v. State of Orissa & Ors (1992) 2 SCC 26 : [1992]1 SCR 335 ; Pre-PG Medical Sangharsh Committee v.Dr. Bajrang Soni (2001) 8 SCC 694: [2001] 1 Suppl.SCR 506 ; Satyabrata Sahoo & Ors. vs State of Orissa& Ors. (2012) 8 SCC 203:[2012] 10 SCR 204. –relied on.

2.2 The doctors in employment of the States and alliedsectors form separate and distinct class and for the purposeof admission in postgraduate degree courses they can be givencertain elements of preference. Holding them to be distinctgroup fits in with overall objective of having medicalprofessionals with superior qualification for tending to the needsof the general public. Moreover, the Regulations by permittingaward of incentive marks to them and also providing for 50 per

Acent reservation in diploma courses indirectly recognise thiscategory of doctors as separate class. [Para 29][719-H; 720-A-B]

2.3 The question of providing separate entry-path toin-service doctors may have some effect on overall standard ofBmedical education at the postgraduate degree level institutions,as the students who would gain admission to such courses maynot come purely on the basis of uniform order of merit. Butthat is not the manner in which the Court ought to interpret theexpression “standards” in institutions of higher education.Analysis of Clause 9 of the Regulations reveals that the saidCclause provides minimum entry standard in the form ofclearance of the NEET on obtaining minimum of marks of 50per cent by general category candidates. Once these standardsare laid down, if the State authorities provide an independentchannel of entry for in-service doctors in postgraduate medical

Ddegree courses, who fulfil the aforesaid minimum standards,provisions to that effect would not be in breach of theconstitutional scheme. The impact on the “standards”, as theexpression is to be construed in Entry 66 of List I, would be fartoo distant from admission norms framed by the State authorities

for such in-service doctors. The separate entry-channel for in-Eservice doctors would be integral to the admission norms,relatable to the Entry 25 of the Concurrent List. Such admissionnorms if compatible with minimum standards laid down by theMCI, would fall under the items specified against the aforesaidentry of List III. [Para 32][720-G-H; 721-A-D]F2.4 The admission process stipulating distinct source ofentry for in-service candidates by itself would not constitutebreach of the provisions of Clause 9 of the Regulations, providedthat the minimum standards mandated by the said Regulationsfor being eligible to pursue postgraduate medical degree course

are adhered to. separate source of entry for in-service doctorsGthrough the State merit list would come within the legislativepower and competence of the State. Reservation for in-servicedoctors has been long standing practise and the rationalebehind such reservation appears to be reasonable. [Para 38][727-A-C]H2.5 Clause 9(4) of the Regulations stipulates entry into thepostgraduate courses from the two merit lists, one all India and

the other that of the State. If the State authorities providereservation for in-service doctors from within the State’s ownmerit list, such an exercise would be relatable to the admissionprocess and the same would not be in breach of any prohibitionflowing from the Regulations. This would entail some form ofvariation of the merit list of the State, but there is no prohibitionunder the Regulations against State undertaking that exercise.Such step undertaken by the State would be relatable to theState’s legislative power derived from Entry 25 of theConcurrent List and not covered by the Regulations. There isno repugnancy with the Regulations if the State authoritiescreate such distinct channel of entry. [Para 39][727-D-F]

2.6 Reservation of in-service candidates was made throughExecutive Orders of the State Government. Its original or earlierversion provided no provision for reservation or separate entry-channel for in-service doctors. The State Government Orderslaid down such distinct source of entry. Interpretation of the sameclause in its present form should also be based on the sameunderlying reasoning. [Para 41][729-B-C]

2.7 Thus, there is no bar in Clause 9 of the Regulationsas it prevailed on 15[th] February 2012 and subsequently amendedon 5[th] April, 2018 on individual States in providing forreservation of in-service doctors for admission into postgraduatemedical degree courses. But to take benefit of such separateentry channel, the aspiring in-service doctors must clear theNEET Examination with the minimum prescribed marks asstipulated in the Regulations. Reservation for the category ofin-service doctors by the State would not be contrary to theprovisions of the Regulations. [Para 42][729-D-E]State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC749 : [2016] 6 SCR 571 – Not affirmed.

2.8 The statutory instruments of the respective StateGovernments are expected to provide for such separate channelof entry should make minimum service in rural or remote ordifficult areas for specified period mandatory before candidatecould seek admission through such separate channel and alsosubsequent to obtaining the degree. On completion of the

ABC

Acourse, to ensure the successful candidates serve in such areas,the State shall formulate policy of making the in-service doctorswho obtain entry in postgraduate medical degree coursesthrough independent in-service channel execute bonds for suchsum the respective States may consider fit and proper. [Para43][729-G-H; 730-A]B

Modern Dental College and Research Centre andOthers v. State of Madhya Pradesh and Others (2016)7 SCC 353 : [2016] 3 SCR 579 – followed.

Sudhir N v. State of Kerala and Ors. (2015) 6 SCCC685 : [2015] 1 SCR 884 ; R. Chitralekha v. State ofMysore [1964] 6 SCR 368 ; Kumari Chitra Ghosh andAnr. v. Union of India & Ors. (1969) 2 SCC 228 :[1970] 1 SCR 413 ; Gujarat University v. KrishnaRanganath Mudholkar [1963] Supp 1 SCR 112 ; Dr.Preeti Srivastava & Anr. v. State of M.P. & Ors. (1999)D7 SCC 120 : [1999] 1 Suppl. SCR 249 – referred to.

Case Law Reference

In the judgment of M.R. Shah, J.

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v.UNION OF INDIA & OTHERS

600SUPREME COURT REPORTS

[2020] 8 S.C.R.

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.196 of 2018.

[Under Article 32 of the Constitution of India]

WithE

Writ Petition (Civil) Nos. 252/2018, 295/2018, 293/2018, CivilAppeal Nos. 3025/2020, 3026-3029/2020, 3030-3031/2020, 3032-3035/2020, 3036/2020 and 3037/2020.

Aman Lekhi, ASG, Jayant Muthuraj, Balaji Srinivasan, AAGs,FArvind Datar, Rakesh Dwivedi, Vinay Navare, Vikas Singh, Ms.Meenakshi Arora, Sanjay R Hegde, C.S.Vaidhyanathan, V.Giri, Sr.Advs., Ajay Bhargava, Ms. Vanita Bhargava, Ms. Saman Ahsan, Mr.Rahul Unnikrishnan, Mr. Aayush Jain for Khaitan & Co., Soumitra G.Chaudhuri, Chanchal Kumar Ganguli, Jose Abraham, M.P. Srivignesh,GBlessan Mathews, Robin Raju, Shashibhushan P Adgaonkar, RanaSandeep Bussa, Dr. Wolf Sandeep Bussa, Dr. Anni Jhon, Ms. PradnyaS Adgaonkar, Motahar Hossain, Tejaswi Kumar Pradhan, Sarad KumarSinghania, Ms. Rashmi Singhania, Kuldeep Rai, Suman Baneerjee,Jayesh Gaurav, Robin khokhar, Ranjan Mukherjee, SubhasishBhowmick, Nishesh Sharma, Anmol Chandan, Apoorva Kurup, G.S.H

Makker, Gaurav Sharma, Ankit Anandraj Shah, Saurabh Rajpal, GovindJee, Krishna Kumar Singh, M. Yogesh Kanna, Rahul Chitnis, SachinPatil, Jishnu. M. L, Ms. Priyanka Prakash, G. Prakash, Kathivel J., AmitKumar, Avijit Mani Tripathi, Ms. Rekha Bakshi, Shaurya Sahay, KumarAbhishek, Chetan Joshi, Atul Kumar, V. N. Raghupathy, M/S. S-LegalAssociates, Advs. for the appearing parties.

The Judgments of the Court were delivered by

M. R. SHAH, J.

1. Leave & permission granted in the respective special leavepetitions.

2. After considering the judgment rendered by three JudgeBench of this Court in the case of State of U.P. v. Dinesh SinghChauhan[1], another three Judge Bench, pursuant to order dated13.4.2018 in the case of T.N. Medical Officers Association v. Unionof India[2], has referred the present batch of cases to larger Bench.

2.1 In the case of Dinesh Singh Chauhan (supra), three JudgeBench construed the provisions of Regulations 9(IV) and 9(VII) of theMCI Postgraduate Medical Education Regulations, 2000, as amendedon 15.2.2012 (hereinafter referred to as the “MCI Regulations 2000”).In the case of Dinesh Singh Chauhan (supra), while considering theaforesaid Regulations, this Court held that the aforesaid Regulations donot provide for any reservation for in-service government doctors inPG degree courses, and therefore, the State Government order providingthe reservation for PG degree courses for in-service governmentdoctors is held to be illegal.

2.2 The present batch of cases came up for hearing beforeanother Bench of three Judges. The Bench was of the opinion that thepresent batch of cases require consideration by larger Bench and thatis how the present batch of cases are referred to larger Bench. Onthe basis of the submissions made, the following reasons werementioned:

“(i) The decision in Dinesh Singh Chauhan[1] has notconsidered the entries in the legislative lists of the

1 (2016) 9 SCC 749

2 (2018) 17 SCC 478

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ASeventh Schedule, more particularly Entry 66 of theUnion List and Entry 25 of the Concurrent List;

(ii) The main contention of the petitioners is that whilecoordination and determination of standards in institutionsfor higher education falls within the exclusive domainBof the Union (Entry 66 List I), medical education is asubject in the Concurrent List (Entry 25 List III).Though, Entry 25 of List III is subject to Entry 66 ofList I, the State is not denuded of its power to legislateon the manner and method of making admissions topostgraduate medical courses;

(iii) The contentions which have been raised in the presentbatch of petitions were not addressed before this Courtin Dinesh Singh Chauhan1;

(iv) The judgment in Dinesh Singh Chauhan[1]does notconsider three decisions of the Constitution Bench in R.Chitralekha v. State of Mysore (1964) 6 SCR 368 :AIR1964 SC 1823, Chitra Ghosh v. Union of India (1969)2 SCC 228 and Modern Dental College & ResearchCentre v. State of M.P. (2016) 8 SCC 353; and

(v) There are decisions rendered by Benches of an equalstrength as in Dinesh Singh Chauhan[1].”

2.3 Now so far as Civil Appeals arising out of the Special LeavePetitions(C) Nos.26448-26449 of 2019 are concerned, they arise outof the impugned judgment and order dated 01/10/2019 in MAT Nos.F1245 and 1267 of 2019 passed by the High Court at Calcutta, by whichthe Division Bench of the High Court has dismissed the batch of appealsconfirming the order passed by the learned Single Judge holding thatthe State has no authority to reserve 40% seats for the in-servicedoctors and 60% seats for open category doctors.

2.4 In Writ Petition (Civil) No. 196 of 2018 filed under ArticleG32 of the Constitution of India, the petitioners – Tamil Nadu Medicalofficers’ Association and others, for and on behalf of the in-servicedoctors in the State of Tamil Nadu have prayed for the following reliefs:

a) declare by issuance of writ of mandamus or any othersuitable writ/order/direction that Regulation 9 of the Post

Graduate Medical Education Regulations, 2000 (moreparticularly, Regulation 9(IV) and 9(VII), does not takeaway the power of the States under Entry 25, List IIIto provide for separate source of entry for in-servicecandidates seeking admission to Degree courses;

b) Alternatively, if Regulation 9 of the Post GraduateMedical Education Regulations, 2000 is understood tonow allow for States to provide for separate sourceof entry for in-service candidates seeking admission toDegree courses, declare, by issuance of writ ofmandamus or any other suitable writ/order/direction,Regulation 9 (more particularly, Regulation 9(IV) and9(VII) as being arbitrary, discriminatory and violative ofArticle 14 and 19(1)(g) of the Constitution and also ultravires the provisions of the Indian Medical Council Act,1956.

Somewhat similar prayers are also sought for on behalf of thein-service doctors in the State of Kerala (Writ Petition (Civil) No. 252/2018); in-service doctors working in the State of Maharashtra (WritPetition (Civil) No. 295/2018); and for and on behalf of the in-servicedoctors working in the State of Haryana (Writ Petition (Civil) No. 293of 2018).

2.5 IA Nos.61442, 61443 and 61445 of 2020 have been preferredby the GMS Class II Medical Officers Association being aggrieved bythe Public Notice dated 28.02.2019 as amended by the Corrigendumdated 10.03.2019, wherein, Medical Council of India has permitted theconversion of Diploma seats into Degree seats in the State of Gujarat.The said application is filed for and on behalf of in-service MedicalOfficers working in the State of Gujarat.

2.6 IA No.24759 of 2020 in Writ Petition (Civil) No. 252 of 2018has been preferred by Kerala Government Insurance MedicalAssociation and others supporting the reservation for in-service MedicalOfficers/Candidates in the Post-graduate Degree Courses.

3. Learned counsel appearing on behalf of the respectivepetitioners/parties, more particularly, Tamil Nadu Medical Association,State of Tamil Nadu, State of West Bengal and others in support ofthe reservation for in-service Medical Officers/ Candidates/Doctors inPost-graduate Degree Courses have made the following submissions:

A3.1. The moot question is whether the State Government iscompetent to provide for reservation for candidates who are alreadyserving the Government. Such reservation is made for Post-graduateseats in the different medical colleges in the State. The competence ofthe State Government is traceable to Article 245 r/w Entry 25 List IIIof the 7[th] schedule to the Constitution. It cannot be said that there hasBto be legislature made law to provide for such reservation. TheGovernment can in exercise of its power as an Executive under Article154 provide for such reservation and it has been so provided as well.

Once competence is found in favour of Government then onlyquestion is one of possible conflict with Central Law and theCresolution of any question of repugnancy. It is submitted that saidquestion really does not arise in the present case;

3.2. The competence of the State Government to bring about alaw dealing with admissions of in-service candidates is upheld by theConstitutional Bench of this Court in the case of Modern DentalDCollege and Research Centre and Others vs. State of MadhyaPradesh and Others[3]. The argument raised on behalf of the Centrethat Entry 25 of List III itself would be subject to Entry 66 of List Ihas also been considered by this Court;

3.3. There is no question of any conflict of Entry 25 of List IIIEand Entry 66 of List I. The subject of admission to courses is referableto Entry 25 of list III and not Entry 66 of List I. It is submitted thatconflict, if any, can only be between State Law and Central Lawboth sourced to Entry 25 of List III. That no such conflict is present inthe instant case;F

3.4. There is no plenary law by the Centre provided for anyreservation for in-service candidates. In other words, there is no CentralLaw governing the said aspect, therefore, it would be competent forthe State Government to provide for reservation for in-servicecandidates. In the absence of Central Law, it is obviously open toGthe State Government to provide for legal instrument, whether by wayof statute or by an executing order providing reservation for in-service candidates;

3.5. The MCI Regulations, 2000, which are made under theMedical Council Act provide for reservation in Post-graduate DiplomaH3 (2016) 7 SCC 353

Courses for in-service candidates serving with the respective StateGovernments. There is no bar to such reservation in Post-graduateDegree Courses. The bar, if any, has to be express and cannot beimplied. Clause 9(IV) of the MCI Regulations, 2000 can be construedas provided for community reservations and also reservation for in-service candidates. Even otherwise, it does not enable explicitly the StateGovernment to provide for weightage in marks, amongst in-servicecandidates. Thus, the legislative instrument which could be sourced tothe MCI, which in turn is body established by the Central Governmentunder the Medical Council Act itself recognizes an empowerment ofthe State Government, inter alia, to lay down the modalities to regulateor provide for reservation for in-service candidates in Post-graduateseats. If that be so, then the actual prescription of reservation for in-service candidates, in relation to Post-graduate Degree seats obviouslyhas not come into conflict with the MCI Regulations, 2000 so as toattract Article 254 of the Constitution;

3.6. The MCI Regulations, 2000, not expressly providing for areservation in Post-graduate Degree seats, specifically empowering theState Government to do so, but only touches upon the reservation inDiploma seats, it does not follow that the State Government isincompetent to provide for reservation for in-service candidates inDegree seats as well. The competence of the State Government toprovide for reservation for in-service candidates is not sourced to theMCI Regulations, 2000, but it is sourced to Entry 25 of List III. Thus,the absence of any mention of reservation for candidates in Post-graduate Degree seats in the Regulations, 2000 cannot support asubmission by the MCI that consequently the State Government wouldbe incompetent to provide for any reservation for in-service candidatesin Degree seats;

3.7. The MCI Regulations, 2000 would become relevant onlywhen it provides for reservation in Post-graduate Degree seats and theState Government brings about policy of reservation in Post-graduateDecree seats at variance from the protocol laid down in the MCIRegulations. The MCI Regulations, 2000 are silent in regard to thereservation in Post-graduate Degree seats and therefore, possiblerepugnancy under Article 254 of the Constitution of India really cannotarise between an instrument by the State Government and an instrumentby the Central Government which does not cover the subject or touchupon the subject provided for by the State Government;

ABC

A3.8. Assuming without admitting that though MCI Regulations doprovide for conversion of Diploma seats into Degree seats, by theState Government with the approval of the MCI, the MCI Regulations,2000 do not specifically mention the consequences of such conversion.When law provides for particular event to take place then allreasonable consequences that emanates therefrom should also beBinferred, should be applied to the present situation as well;

3.9. Even MCI Regulations, 2000 themselves provide forreservation for in-service candidates in Diploma and also provides forservice condition to be fulfilled thereunder. The conversion of Diplomaseats into Degree seats (now after 2018) would obviously result in theCsame permissible reservation for in-service candidates to be providedfor Degree seats as well. All that would be required is the impositionof the same conditions as are provided in the Diploma seats;

3.10. The decision of this Court in the case of Dinesh SinghChauhan (Supra) also requires re-look in view of the subsequentDdevelopment viz. Notification dated 12.07.2018 by which, MCI haspermitted the Medical College/Medical Institution to “seek equal numberof Post-graduate Degree seats by surrendering recognized diploma seatsin corresponding course”. It is submitted that pursuant to the saidNotification the medical colleges/institutions are/were given the optionEof converting the available post graduate diploma seats into Post-graduate Degree seats in 1:1 ratio. It is submitted that pursuant tothe said notification most of the medical colleges/medical institutions inthe respective States have surrendered the Post-graduate Diploma seatsand have converted the same to Post-graduate Degree seats. It issubmitted that resultant effect is that now there shall not be any Post-Fgraduate Diploma seats available and therefore, in-service candidatesare left in situation where even the limited benefit conferred on themin form of 50% reservations in Post-graduate Diploma Course can nolonger be availed. As result, in-service candidates have been left in acomplete lurch since they would neither be able to qualify for Post-Ggraduate Degree course in adequate numbers nor be in position toavail the Post-graduate Diploma seats previously available in theGovernment Colleges. In view of the above development, the reasoningin the case of Dinesh Singh Chauhan (supra) as to the difference inthe Regulations between Post-graduate Diploma and Degree coursesno longer survives;H

3.11. Right of the State Government to set apart definitepercentage of educational seats at Post-graduate level consisting ofDegree and Diploma courses exclusively for class of persons as aseparate source of entry has been repeatedly upheld by this Court withthe condition that source is properly classified –whether on territorial,geographical or other reasonable basis and has rational nexus withthe object of imparting particular education and effective selectionfor the purpose. Reliance is placed upon the decision of this Court inthe cases of (1) Kumari Chitra Ghosh and Anr. vs. Union of India &Ors.[4]; (2) D.N. Chanchala vs. The State of Mysore and Ors.[5]; (3) KDuraisamy & Anr vs. State of Tamil Nadu and Ors[6]; (4) AIIMSStudents Union vs. AIIMS[7]; and (5) State of Madhya Pradesh & Orsvs. Gopal Tirthani and Ors[8];

3.12. It has been consistently held by this Court that there is alegitimate and rational basis in providing separate channel/source ofentry for in-service candidates in order to encourage them to offer theirservices and expertise to the State. It is submitted that this Court hasacknowledged that this has sufficient nexus with the larger goal ofequalization of educational opportunities and to sufficiently prefer thedoctors serving in the various hospitals run and maintained out of publicfunds, in the absence of which there would be serious dearth of qualifiedPost-graduate doctors to meet the requirements of the common public;3.13. Unlike reservation envisaged for Scheduled Caste/ ScheduleTribes, this is distinct and vitally important public purpose in itselfabsolutely necessitated in the best of public interest. In the case ofDinesh Singh Chauhan (supra) this Court has held that no fault canbe found with the method of providing separate channel of entry forin-service candidates for the reason that the facilities for keeping upwith the latest medical literature might not be available to such in-servicecandidates and the nature of the work makes it difficult for them toacquire knowledge about very recent medical research, which thecandidates who has come after freshly passing their graduationexamination might have;

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

A3.14. In the case of Modern Dental College and ResearchCentre (supra), the Constitution Bench of this Court has affirmed thateven though Entry 25 List III is subject to Entry 66 List I, the powerof States to enact laws concerning admissions would not standextinguished so long as such laws did not have the effect of wiping outthe law enacted by the Union under Entry 66 List I;B

3.15. When the States create separate source of entry forin-service candidates, the standards of medical education are notimpinged inasmuch as;(a) only eligible in-service candidates can qualify i.e. thosehave obtained minimum eligibility marks;C

(b). amongst eligible in-service candidates admission is madebased on inter-se-merit;

(c). The preferential weightage would merely alter the orderin which in–service candidates would rant in the meritlist prepared for in-service candidates. Thus, it wouldDnot be case of ‘double reservation’;

3.16. As held by this Court in the case of Yatinkumar JasubhaiPatel & Ors vs. State of Gujarat and Ors[9], which was in the contextof “institutional preference” for Post-graduate Medical Admission, onlyobligation by virtue of introduction of NEET is that the State cannotEhold any separate test for admissions to Post-graduate courses. Asobserved, even while giving the admission in the State quota/institutionalreservation quota, the merit determined on the basis of NEET will stillhave to be considered. It is submitted that therefore, provision of aseparate source of entry for in-service candidates shall not dilute thestandards of higher education in any manner since the candidates inFquestion would still have to obtain the minimum merit prescribed underNEET;

3.17. The reservation referred in the opening part of Regulation9(IV) is only with respect to reservation as per the constitutional schemei.e. SC, ST and OBCs and not for in-service candidates or MedicalGOfficers in–service. This is also acknowledged by this Court in the caseof Dinesh Singh Chauhan (supra) in para 25.4. It is submitted thattherefore, there is no merit in the statement of defence by the respondentthat in-service candidates for Post-graduate Degree Course are alreadygoverned by the reservation provided for in Regulation 9(IV);3.18. It is submitted that so far as State of Tamil Nadu isconcerned, the Hon’ble Chief Minister of Tamil Nadu in his letter dated25.4.2017 to the Hon’ble Prime Minister, has highlighted that providingonly 30% weightage to in-service candidates seeking admission to Post-graduate Degree Course is not enough since if this procedure isfollowed, out of the 557 Post-graduate government seats available underthe State quota in Tamil Nadu, only 20 seats would go to in-servicequota candidates. It is submitted that vide letter dated 6.2.2019, the Stateof Tamil Nadu wrote to the Ministry of Health and Family Welfare andhighlighted the contribution of the policy to provide 50% reservation forin-service candidates in Post-graduate degree courses in attractingmeritorious Doctors to Government service and also enabling the StateGovernment to provide uninterrupted health care in rural, difficult andremote areas of the State. It is submitted that it was further highlightedthat this reservation was critical for the maintenance of quality healthcare in the government medical facilities;

3.19. Learned counsel appearing on behalf of the State of TamilNadu has highlighted the benefits to be achieved by providing 50%reservation for in-service candidates in Post-graduate Degree/ DiplomaCourses. It is submitted that continuance of given incentive marks andreserving 50% seats for in-service candidates who performed duty inremote, rural area, hilly terrain etc. in Post-graduate courses will sustainthe achievement made by the State Government in the health sectorand provide valuable medical care to the poor and vulnerable society.It is submitted that therefore, it is in the larger public interest of theState that there is provision for 50% reservation in Post-graduateDegree/Diploma Courses/seats for in-service candidates;

3.20. So far as the State of West Bengal is concerned, learnedcounsel appearing on behalf of the State of West Bengal as well asGovernment Doctors serving in the Government Hospitals in the Stateof West Bengal in support of the reservation of 40% of the state quotaPost-graduate Medical seats for in-service Doctors have made inaddition to the following submissions:

3.20.1. That the State of West Bengal has enacted the WestBengal Health Services Act, 1990 for controlling the services of thein-service doctors. Under Section 21 of the said Act, the State has theRule making power and in exercise of that power the State has enactedthe West Bengal Health Service and the West Bengal Medical Education

AService and the West Bengal Health and Public Administrative Service(Placement on Trainee Reserve) Rules, 2015. As per the note of Rule3 of the said Rules, the State is empowered to make reservation in theseats of the Medical Courses of the State Universities for its officersunder West Bengal Health Service and the West Bengal MedicalEducation Service and the West Bengal Health and PublicBAdministrative Service. It is submitted that such note was also there inthe Rules of 2008, which came to be repealed in view of enactment ofRules 2015. That the Government vide order dated 18.4.2013 providesfor the reservation of 40% of the State quota Post-graduate Medicalseats for the in-service doctors in exercise of such power;C3.20.2. That the action of the State to provide in-service quotais in the discharge of its positive constitutional obligations to promoteand provide better health care facilities for its citizens by upgrading thequalifications of the existing in-service doctors so that the citizens mayget more specialized health care facility. Such action is in discharge of

Dits constitutional obligations as provided in Article 47 of the Constitutionof India which is the corresponding fundamental right of the citizensprotected under Article 21 of the Constitution of India;

3.20.3. The State can fix separate source of admission as thein-service doctors are distinct class. The classification has sufficientEnexus with the laudable object of meeting the requirement of qualifiedPost-graduate doctors for the public health service. Reliance is placedupon decision of this Court in the case of Sudhir N vs. State of Keralaand Ors.[10];

3.20.4. By way of providing separate source of entry to theFin-service doctors, the State has not impinged upon the minimumstandards prescribed by the Medical Council of India as in-servicecandidates are selected on the basis of their merit assessed on the basisof their marks obtained in the NEET examination;

3.20.5. The action of providing separate quota for the in-serviceGdoctors is not violative of the Regulation 9(IV) of the MCI Regulations,2000 as the same categorically states in an unambiguous manner, interalia, that the reservation of seats shall be as per applicable lawsprevailing 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 kindsof reservation including that of in-service;

3.20.6. In-service Doctors come with vast practical experienceof serving several years in the Government Health Services and treatingcountless patients. Whereas the fresh MBBS graduates, even thoughmay score higher because of their recent connection with the textbooks,do not have any such experience. Their marks are only reflective oftheir theoretical knowledge and ability to memorize and answerexamination questions. It is submitted that thus, in-service Doctors havingvast experience and fresh graduates having no such experience, formtwo different classes and cannot be equated. It is submitted that forcingin-service Doctors to compete with the fresh graduates in theirtheoretical knowledge will be extremely, unfair, illogical and irrational;

3.21. In addition, learned counsel appearing on behalf of theprivate appellants in the Civil Appeals arising out of impugned judgmentand order passed by the High Court of Calcutta and in-servicecandidates have further submitted that the reservation notification wasissued on 18.4.2013 and the writ petition has been filed after firstcounselling was over for 2019 admission. All admissions were completedin May 2019 and 285 doctors out of the State quota of 699 have almostcompleted the first semester. It is submitted that therefore, alternativelyit is prayed to observe that the impugned judgment and order passedby the High Court may not affect the admission already granted andmay not affect those in-service candidates who are already admittedprior to filing of the petition / impugned judgment and order passed bythe High Court;

4. The applicant of IA No.61442 of 2020 – GMS Class IIMedical Officer’s Association and Association of in-service GovernmentMedical Officers in the State of Gujarat are as such aggrieved by thePublic Notice dated 28.02.2019, as amended by Corrigendum dated10.03.2019, wherein Medical Council of India has permitted theconversion of Diploma seats into Degree seats on the ground of doctrineof Legitimate Expectation and on the ground that the same is in teethof and to bypass the order passed by this Court dated 19.5.2017 in thematter of Special Leave Petition (Civil) No.31395 of 2017. It issubmitted that in the aforesaid case this Court directed the State ofGujarat to conduct the counselling keeping in view the regulation whichprovides for 50% of seats to be reserved in the Post-graduate Diploma

ACourses for Medical Officers in the government service who haveserved for at least three years in remote and/or difficult areas. It is thecase on behalf of those in-service Medical Officers working in theGovernment Colleges in the State of Gujarat that by the aforesaid vestedrights in favour of those in-service candidates and to avail 50%reservation in Post-graduate Diploma Courses have been taken away.BIt is their case that what cannot be done directly, shall not be permittedto be done obliquely. It is also their case that so far as the State ofGujarat is concerned, there is no provision for giving 30% incentive forPost-graduate Degree Courses displaced in Clause 9(IV) of the MCIRegulations, 2000. It is submitted that therefore, on one hand DiplomaCseats are being decreased and on the other hand there is no provisionfor providing incentive marks in the Degree Courses to the in-serviceMedical Officers, who have worked in rural areas. It is submitted thatthe applicant has already filed writ petition before the Gujarat High Courtbeing Special Civil Application No.5773 of 2019 challenging the viresof Rule 6 of the Gujarat Professional Post-graduate MedicalDEducational Courses (Regulation of Admission) Rules, 2018 as well asconversion of Diploma seats into Degree seats and the same is pending;

4.1. Learned counsel appearing on behalf of the respective writpetitioners – in-service doctors have made the following submissionsin respect of their alternative prayer/prayers to declare Regulation 9,Emore 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 theIndian Medical Council Act, 1956;

4.2 That so far as the State of Tamil Nadu is concerned, it isFsubmitted that since the year 1989, the State of Tamil Nadu has had apolicy of providing separate source of entry to in-service candidatesto the extent of 50% of the State seats in degree courses. Further, sincethe year 2007, by way of Government Order, the State of Tamil Naduhas also provided for preferential weightage to those in-serviceGcandidates who have served in rural, hilly and difficult areas. Therefore,the policy of the State Government has been adopted with view toensure adequate healthcare in the public sector and to further ensurefilling of vacancies in government hospitals, particularly in rural, hillyand difficult areas. That the aforesaid policy following by the State ofTamil Nadu has resulted in drastic improvement in the overall publicH

healthcare with adequate staffing across the State and improvement inhealth indicators, particularly when compared to other States in thecountry;

4.3 Learned counsel appearing on behalf of the in-servicecandidates working with the State of Kerala has submitted that the Stateof Kerala had policy of reserving 40% of the seats available inpostgraduate medical admission for in-service candidates serving in theHealth Service Department, Medical College Lecturers and doctorsserving in the ESI Department of the State. That MCI Regulations,2000, however, made it mandatory for all candidates seeking admissionto postgraduate medical courses to appear for common entranceexamination. The MCI Regulations, 2000, inter alia, provide thatcandidates who appear in the common entrance examination and secure50% in the case of general category candidates and 40% in the caseof SC/ST candidates alone shall be qualified for such admission.Consequently, even in-service candidates had to appear and qualify inthe common entrance examination. Considering the hardship faced bythe in-service candidates who were working round the clock for thebenefit of the public could hardly find time to update their knowledgeand compete with the general merit candidates, the Government ofKerala brought the Kerala Medical officers Admission to Post GraduateCourses under Service Quota Act, 2008 to overcome the difficultiesfaced by in-service candidates in the matter of getting admission topostgraduate courses;

4.4 Learned counsel appearing on behalf of the in-servicecandidates working with the State of Maharashtra has submitted thatso far as the State of Maharashtra is concerned, the State ofMaharashtra by resolution dated 06.01.1990, decided to reserve 15%of postgraduate seats in Government Medical Colleges for the in-servicecandidates to meet the acute shortage of doctors in rural areas. Thesaid resolution was issued to serve as an incentive for graduate doctorsto take up government service at primary health centres which weresuffering due to the acute shortage of doctors in rural areas. However,since the requirement of doctors was not met with, the State ofMaharashtra by another Government Resolution dated 22.02.1996increased the reservation of seats for in-service candidates from 15%to 25%. However, in view of the Regulations framed by the MedicalCouncil of India, the in-service candidates are suffering and ultimately

Athe public health in the rural, hilly and remote areas is being sufferedand ultimate sufferer is the public at large in those areas;

4.5 So far as the State of Haryana is concerned, it is the caseon behalf of the in-service candidates working with the State ofHaryana that the State of Haryana had the policy of reserving 27% ofBthe seats in the postgraduate medical courses in the GovernmentColleges for in-service candidates. However, the percentage of seatsreserved for the in-service candidates was increased in 2001 from 27%to 40% until 2016 for admission to postgraduate medical courses forin-service doctors in Haryana out of the 50% State quota;

C4.6 In respect of their alternative prayers referred to hereinabove,learned counsel appearing on behalf of the respective petitioners – in-service 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); andDGopal D. Tirthani (supra), this Court has repeatedly upheld the rightof the State Governments to set apart definite percentage ofeducational seats at postgraduate level consisting of degree and diplomacourses exclusively for class of persons as separate source of entry,with the condition that the source is properly classified whether onterritorial, geographical or other reasonable basis and has rationalEnexus with the object of imparting particular education and effectiveselection for the purpose;It is submitted that in the aforesaid decisions, this Court has upheldproviding in-service candidates separate source of entry by acceptingthat the classification of candidates between in-service doctors and non-Fservice doctors has reasonable nexus with the objective sought to beachieved, i.e., of providing adequate and affordable healthcare in thepublic sector;

ii) The power of the State to provide for separate source ofentry in matters of admission in medical education flows from EntryG25, List III of the Constitution, whereas the power of the Union inmatters of “coordination and determination of standards” in matters ofadmission in medical education is derived from Entry 66 of List I andEntry 25 of List III;

iii) This Court in the case of Modern Dental College (supra)

has specifically held after considering the earlier decisions that Entry66 of List I was specific entry having very specific and limitedscope, i.e., dealing with “coordination and determination of standards”in institutions of higher education or research as well as scientific andtechnical institutions. It has been further held that the words “coordinationand determination of standards” would mean laying down the saidstandard and thus, when it comes to prescribing the standards for suchinstitutions of higher learning, exclusive domain is given to the Union.Insofar as medical education is concerned, the same is achieved byparliamentary legislation in the form of Medical Council of India Act,1956 and by creating statutory body like Medical Council of India,the functions of which take, within its sweep, determination andcoordination of standards in medical institution and that of educationalinstitutions. It is further observed that when it comes to regulatingeducation as such which includes medical education as well asuniversities (imparting higher education), that is prescribed in Entry 25of List III, thereby giving concurrent powers to both Union as well asStates. It is further held that the power of the States to enact lawsunder Entry 25, List III would not stand extinguished so long as suchlaws did not have the effect of wiping out the law enacted by the Unionunder Entry 66 of List I;

4.7 It is further submitted that the observations of this Court inthe case of Dinesh Singh Chauhan (supra) as regards Regulation 9prohibiting the States to provide separate source of entry for in-servicecandidates require re-consideration inasmuch as:

a) there is no express or implied bar contained inRegulation 9 which prohibits the States from exercisingtheir power under Entry 25, List III and providing aseparate channel of entry to in-service candidates. Onthe contrary, the fact that preference is given to in-service candidates is perceived to be laudable objectiveby the Union also, is evident from the proviso toRegulation 9(IV) and Regulation 9(VII). However,Regulation 9 has not (rightly so) prescribed uniformpolicy for separate source of entry since only the State,which is fully aware of the unique and peculiar facts ofthat State, can, if necessary, provide for separatesource of entry for that State;

b) that this Court relied upon the findings in Sudhir N(supra), to the effect that Regulation 9 is completecode in itself, to arrive at the conclusion that the StateGovernments could not provide separate channel ofentry to in-service candidates. However, this Court failedto consider that even in Sudhir N (supra), the case ofGopal D. Tirthani (supra) had been approved and theimpugned law framed by the State of Kerala had beenstruck down on account of the State of Kerala givingthe inter se merits of in-service candidates go-bye byfixing the criteria for admission as inter se seniority.Thus, even in Sudhir N (supra), the power of the StateGovernments to provide separate channel of entry toin-service candidates was affirmed;

c) that this Court did not take into account the fact thatby providing separate source of entry for in-servicecandidates, there would be no lowering of standardsprescribed by the Medical Council of India since eligiblecandidates would have met the minimum qualificationmarks set out in NEET and moreover the admissionwould take place based on the inter se merits of thein-service candidates;

d) that this Court did not take into account the relevantfindings in the case of Modern Dental College (supra),more particularly, paragraphs 29 and 30;

e) that this Court also did not consider that its interpretationof Regulation 9 in such manner as to render the Statespowerless in the matter of creating separate sourceof entry would be contrary to various decisions of thisCourt which have affirmed the right of the StateGovernment to determine the admission process keepingin view their peculiar conditions with the caveat thatthere is no laying down of uniform standard prescribedby the Union;

f) that mere incentives as mentioned in Clauses (IV) and(VII) of Regulation 9 of the Regulations, 2000 withrespect to in-service government doctors will result inless number of people opting Government services thus

affecting the under-privileged and under-servedpopulation across the State. That there is an absolutedearth of doctors entering Government services sincevery few MBBS doctors join government service aftertheir graduation. This situation affects the under-privileged, under-served and poorest of poor peopleacross the country who prefer public sector/governmentrun hospitals or primary health centres for their treatmentas they are not in financial position to afford theprivate hospitals. Hence, in order to retain the doctorsin government services and continue with them for alonger duration, it is vitally important and absolutelynecessitated in the best of public interest for the Statesto carve out separate channel of entry for the in-service candidates in admission to postgraduate medicalcourses. Heavy reliance is placed upon the decision ofthis Court in the case of Pre-PG Medical SangharshCommittee v. Dr. Bajrang Soni[11];

g) that Regulation 9 of the Post Graduate MedicalEducation Regulations, 2000 cannot expressly orimpliedly take away the power of the State Governmentunder Entry 25, List III to provide either reservation orweightage in marks for all the in-service candidates andin no way providing such reservation for all in-servicecandidates, would be lowering the standard prescribedby MCI since eligible candidates would have met theminimum qualification marks set out in the NEETentrance test and moreover the admission would takeplace based on inter se merits of the in-servicecandidates;

h) that the power of the State Government to provide forreservation or separate channel of entry for in-servicecandidates at the postgraduate level so long as theminimum standards of qualification is maintained hasbeen held to be constitutionally valid by this Court incatena of decisions;

Ai) that even otherwise providing reservation for in-servicecandidates in postgraduate diploma courses (as perRegulation 9(VII)) only and not providing any specificprovision for reservation for in-service candidates inpostgraduate degree courses is absolutely arbitrary andcolourable exercise of power. It is submitted that thereBis no logic and reason to provide for reservation only inpostgraduate diploma courses and not in postgraduatedegree courses. It is submitted that not providing for anyreservation for in-service candidates in postgraduatedegree courses is discriminatory and violative of ArticleC14 of the Constitution of India;

j) that any interpretation of Regulation 9, which allows forreservation for in-service candidates in diploma coursesbut prohibits separate source of entry for in-servicecandidates in degree courses therefore is wholly arbitraryDand without any application of mind inasmuch as itcompletely fails to consider that the need to adequatelystaff rural healthcare is not only at basic level butmore so at specialised level since the shortage of staffin specialised healthcare is even more acute and serious;

Ek) that in case Regulation 9 is understood to not provide aseparate channel of entry for in-service candidatesseeking admission to degree courses, then the samewould be ultra vires Section 20 of the Indian MedicalCouncil Act, 956 inasmuch as Section 20 only mandatesthat MCI prescribes the standards of postgraduateFmedical education, i.e., prescribes the minimumqualification marks but does not in any way empowerMCI to impede the well-recognised right of the Statesto create separate channel for persons it may deemfit;

G4.8 If it is understood that MCI Regulations, 2000 provide forany reservation for in-service candidates in postgraduate degree coursesand do not provide separate channel of entry for in-service candidates,then the same would be ultra vires to Section 33 of the Indian MedicalCouncil Act, 1956 inasmuch as it would be beyond the scope and ambitHof the MCI to make any provision for separate channel of entry forin-service candidates;

4.9 The MCI Regulations, 2000 do not and cannot take awaythe powers of the respective States to make special provision for in-service candidates, looking to the need and requirement of theparticular State in exercise of the power under Entry 25 of List III ofthe Constitution. It is submitted that “institutional preference” forpostgraduate medical admissions is held to be permissible by this Courtin catena of decisions. It is submitted that therefore once the“institutional preference” for postgraduate medical admissions withinthe State quota is held to be permissible, similarly providing separatechannel for in-service candidates in the form of certain percentage byway of reservation, looking to the specific need and requirement of theState and that too within the State quota is certainly permissible andthe MCI Regulations, 2000 cannot take away the powers/authority ofthe concerned States to make special provision for in-service candidatesfor postgraduate medical admissions within the State quota and withoutcompromising the merits, namely, following the minimum eligibilitycriteria 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:

a) that the Indian Medical Council Act, 1956 has beenenacted for the sole purpose of coordination anddetermination of standards in exercise of the power ofthe Union Legislature under Entry 66 of List I ofSchedule VII. The power of regulating “Education” assuch is prescribed in Entry 25 of List III givingconcurrent power to both States and the Union. Theentire gamut of admission is not covered under Entry66 of List I of Schedule VII excluding Entry 25 of ListIII, though Entry 25 of List III is subjected to Entry 66of List I;

b) that there is no conflict between the power of the Unionand the States. The occupied field of Union Legislationis only related to minimum standards of medicaleducation and the State has provided for in-service quotawithout impinging the prescribed minimum standards;

c) that the power of the State in providing reservation hasto be tested within the Constitutional framework and theH

State has not travelled beyond its powers in providingquota for the in-service doctors in postgraduate medicaladmission and the same has been provided within theframework of the Constitution of India;

d) that the power of the State under Entry 6 of List II ofSchedule VII to legislate in the subject matter of publichealth and hospital is exclusive. The State of WestBengal has enacted the West Bengal Health ServicesAct, 1990 under such exclusive legislative power. UnderSection 21 of the said Act, the State has the Rulemaking power and in exercise of that power the Statehas enacted the West Bengal Health Service and theWest Bengal Medical Education Service and the WestBengal 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 seatsof the medical courses of the State Universities for itsofficers under West Bengal Health Service. TheGovernment Order dated 18.04.2013 providesreservation of 40% of the State quota in thepostgraduate medical seats for the in-service doctors.Such Note is part of the Statute;

e) that the action of the State to provide for the in-servicequota is in the discharge of its positive constitutionalobligations to promote and provide better health carefacilities for its citizens by upgrading the qualificationsof the existing in-service doctors so that the citizens mayget more specialized health care facility. Such action ofthe State is indeed in discharge of its constitutionalobligations as provided in Article 47 of the Constitutionof India which is the corresponding fundamental rightof the citizens protected under Article 21 of theConstitution of India;

f) that the power of the State under Entry 6 of List II ofSchedule VII is exclusive and the same is not subjectto any other entry of the List I. The Court cannot givean interpretation which may make such independentHentry subject to any entry of List I which was not theintention of the framers of the Constitution of India;

g) that the State can fix separate source of admissionas the in-service doctors are distinct class. Theclassification has sufficient nexus with the laudableobject of meeting the requirement of qualifiedpostgraduate doctors for the public health service;

h) that the observations made by this Court in the case ofSudhir N (supra) that Regulation 9 is complete codeby itself is required to be considered with reference tothe context and the controversy in the said case. It issubmitted that the observations in the case of SudhirN (supra) that Regulation 9 is complete code in itselfmay not be construed with respect to providingreservation and/or making special provision like providingseparate source of entry for in-service candidates withinthe State quota and subject to fulfilling all other eligibilitycriteria fixed and provided by the MCI. It is submittedthat in that sense the observations made by this Courtin Dinesh Singh Chauhan (supra) that as held by thisCourt in Sudhir N (supra) that Regulation 9 is acomplete code in itself including the reservation may notbe accepted and is not good law;

i) it is further submitted that even as provided underRegulation 9(IV) of the MCI Regulations, 2000, thereservation of seats shall be fixed as per the prevailinglaws in the State. Therefore, by giving restrictivemeaning to the term “reservation” as only constitutionalreservation, it would be putting words to the legislationwhich is otherwise unambiguous and includes all kindsof reservation including that of in-service;

4.11 It is submitted by the learned counsel appearing on behalfof the State of West Bengal that if Regulation 9(IV) is considered tobe limited only to reservations in favour of SC/ST/OBC, then the provisois not in the form of an exception as it is independently dealing with in-service doctors. The proviso then becomes substantive provision andis more concerned with the marks to be allocated which is the concernof Regulation 9(III). This proviso confers discretion on the State toprovide for weightage in marks for services rendered in remote ordifficult areas. The proviso was required because Regulation 9(III)

Aprescribes for the obtaining of minimum marks in the NEET exam. TheStates could not have relaxed or tinkered with the marking system.Therefore, proviso enables the State by conferring discretion to providefor weightage. The proviso has nothing to do with the reservation inthe postgraduate degree courses and it will not negate the States powerto make reservation;B

4.11.1 Regulation 9(VII) provides that 50% of the seats inpostgraduate diploma courses shall be reserved for medical officers inthe government service. Firstly, this Regulation merely deals withdiploma courses and has no relevance to postgraduate degree courses.Secondly, this provision makes it an obligation on the part of the StateCto reserve 50% seats for in-service doctors. The State, is therefore,left with no discretion and is bound to make such reservations in diplomacourses. This provision would not negate the discretionary power ofthe State Government to make reservation for in-service doctors.

4.11.2 Regulation 9 contains no specific clause or expressionDwhich would indicate that the field of making reservations for in-servicedoctors in the postgraduate degree courses has been covered. Hence,Regulation 9 is not complete and exhaustive code;

4.11.3 That by making Regulation 9(IV) and 9(VII), the intentionis not to exclude reservation for in-service candidates in postgraduateEdegree courses. If the language in the provision was instead of ‘maybe 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 in-Fservice candidates entitlement to postgraduate courses would have beenby way of granting incentive as provided therein. Since the languagedoes not indicate that such course is mandatory and is only an enablingprovision, the State Rules/Act or directions issued by the respective StateGovernments providing for reservation for in-service candidates inpostgraduate degree courses is not incompatible with the proviso toGclause IV of Regulation 9. It is submitted that unless there is expressor implied prohibition of reservation of seats, contained in the MCIRegulations, for in-service candidates in admission to postgraduatedegree courses, no incompatibility between the two arises.

5. Learned counsel appearing on behalf of the Medical CouncilHof India has made the following submissions against the power of the

States to make reservation of seats for in-service candidates in Post-graduate Degree Courses and also in favour of validity of the Regulation9 of the MCI Regulations, 2000:

5.1. MCI has framed comprehensive scheme for admission toPost-graduate Medicine (Degree and Diploma) Courses in the form ofRegulation 9 of the MCI Regulations, 2000. The scheme envisagedunder Regulation 9 for admission to Post-graduate Medicine (Degreeand Diploma) is to be read as whole. The Regulation 9 when readas whole show that it is in-service doctors, i.e. doctors who haveserved in remote and difficult or rural areas notified by the StateGovernment, are given the maximum benefit under the said scheme ascompared to other candidates. The benefit given to the in-servicedoctors is in the form of; (1) reservation in Post-graduate diplomacourses; and (2) grant of incentive marks in terms of Regulation 9(IV)of MCI Regulations, 2000. The option of availing incentive marks forPost-graduate degree courses or seeking reservation in post-graduatedegree courses is only available to in-service candidates and the saidoption is not available to non-service candidate;

5.2. Indian Medical Council Act, 1956 and the Regulation framedthereunder are traceable to Entry 66 of List I of Schedule VII of theConstitution of India and Entry 66 of List 1 provides for “Co-ordinationand Determination of Standards” in the field of higher and technicaleducation or research. The standard, criteria, manner and basis ofgranting admission in medicine courses fall within the exclusive domainof the Medical Council of India. Regulation 9(IV) prescribes the criteriafor determination of merit on the basis of which admissions to be grantedto students in post-graduate degree courses;

5.3. The power of the State under Entry 25 of List III to makelaws is subject to Entry 66 of List I of Schedule VII of the Constitution.The primacy will have to be given to Legislation framed by theParliament or delegated legislation made in exercise of powers conferredunder such Legislation on matters under Entry 25 of List III, over theLegislation/delegated legislation framed by the State Legislature orauthority designated by the State Legislature;

5.4. As held by this Court in the case of Preeti Srivastava v.State of M.P.[12] under the Indian Medical Council Act, 1956, the Medical

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ACouncil of India is empowered to prescribe, inter alia, standards of post-graduate medication education. It is further observed that in exerciseof its powers under Section 20 r/w Section 33 of the Indian MedicalCouncil Act, the MCI has framed the Regulations which govern post-graduate medical education. These Regulations therefore, are bindingand the States cannot in the exercise of power under Entry 25 of theBList III, make rules and regulations which are in conflict with oradversely impinge upon the Regulations framed by the Medical Councilof India for post-graduate medical education. Heavy reliance is placedupon para 52 and 53 of the said decision;

5.5. That in the case of Modern Dental College and ResearchCCentre (Supra) this Court has also further observed that exercise ofpowers by the State Legislature on any matter under Entry 25 of ListIII is circumscribed by the power under Entry 66 of List I and the lattershall have primacy over the former. Reliance is placed upon paras 102and 104 of the said decision.D

6.0. Now, so far as submission on behalf of the respectivepetitioners on conversion of seats of Post-graduate Diploma Course intoseats of Post-graduate Degree pursuant to the Notification dated12.07.2018, it is vehemently submitted that as such when the referencewas made to Larger Bench and even in the original writ petitionEconversion of seats was not the issue much less any basis for the saidreference. It is submitted that therefore, the issue of conversion of seatsis separate and distinct issue and separate cause of action, whichis sought to be clubbed with the present petition.

It is submitted that however as submissions have been made onFthis aspect, it is submitted as under:

A. Conversion of seats from post-graduate diploma todegree is optional and not mandatory. No College/Institution was compelled or forced to opt for suchconversion;

B. The provisions for conversion was introduced as overthe past years the students, medical colleges, StateGovernment and other stake holders have complainedabout the scarcity of seats in the post-graduate degreecourses which is the most preferred choice of students;

C. To give an option to the States where the requirementof doctors post-graduate degrees is more to avail thebenefit of conversion;

D. This provision was not meant to take away or do awaywith the in-service reservation in post-graduate diplomacourses. If any State/Government Medical CollegeBwants more diploma holders then it can retain thoseseats.

6.1. Now so far as submission on behalf of the respectivepetitioners and the respective States that on conversion of post-graduatediploma seats into degree seats in-service candidates are deprived ofreservation in diploma courses, it is submitted that as such GovernmentMedical Colleges and other Medical Institutions in the State of TamilNadu and other States have consciously and unconditionally chosen toopt for conversion of seats. In fact, this conversion of seats helps thein-service doctors also as there are greater number of seats in post-graduate degree courses for which they can compete;

6.2. It is submitted that any reservation for in-service candidatesin post-graduate degree course at this stage will give unfair advantageto in-service candidates over other candidates by increasing their seatshare in the said degree courses;

6.3. That the Government Medical Colleges/Private MedicalColleges/Deemed Universities are keen to secure permission fromGovernment of India for post graduate degree courses only, since postgraduate diploma courses is not the preferred choice of the students.In any case, the data in the table given below indicates that not all postgraduate diploma seats across the Country have not been converted topost-graduate degree course. Many States have not opted for conversionof seats in their medical colleges;

6.4. It is important to take into consideration that if 30%reservation of seats in post-graduate degree courses is reserved forin-service candidates in State quota, then major chunk of these seats,particularly seats in clinical subjects will be reserved for in-servicecandidates only;

6.5. Now so far as submission on behalf of in-service candidatesthat diploma seats for which reservation of in-service candidates ispermitted under Regulation 9(VIII) of MCI Regulations, upon

Aconversion into post-graduate degree seats, will continue to be reservedfor in-service candidates, it is submitted that the said contention isdevoid of merit and liable to be rejected since once the seats in post-graduate diploma courses are converted to post-graduate degree coursesthen the nature and colour of the said seat itself changes and it will begoverned by Regulation 9 (IV) and not Regulation 9(VIII) of the MCIBRegulations. It is submitted that grievance of the petitioners, if any, asa result of conversion is because of the action of their StateGovernments in applying for conversion of seats;

6.6. There is clear cut distinction in post-graduate diploma seatsand post-graduate degree courses and both serve different purposes.CThe conversion of post-graduate diploma seats into post-graduate degreecourses is only an enabling provision which gives discretion to the StateGovernment/Medical Institutes to opt for such conversion. It is not inany manner intended to do away with the reservation in post-graduatediploma courses under Regulation 9(VIII) of the MCI Regulations,D2000;

6.7. Regulation 9(IV) of the MCI Regulations, 2000 serve largepublic interest and it is an objective way of determining merit. Regulation9(IV) of the Regulations based on the objective consideration, rational,reasonableness and balances the competing interest of in-serviceEcandidates and non-service (direct) candidates as well as the interestof State to have doctors serving in remote and difficult or rural areasof the State and at the same time also ensuring that there is nocompromise of merit;

6.8. It is submitted that therefore, as there is already provisionFfor in-service candidates in Regulation 9 framed by the MCI framedin exercise of powers under Section 20 r/w 33 of the India MedicalCouncil Act 1956 and the MCI Act has been enacted by the CentralGovernment under Entry 66 of list I and even otherwise Entry 25 ofList III empowers the Union also to enact the law and therefore, alsoin view of MCI Regulations, 2000 which were found place before theGParliament and ascent of the President, State cannot have the poweron the same subject under Entry 25 of List III and any law by the Stateshall be repugnant to Central Act.

7.0. Shri Aman Lekhi, learned ASG appearing on behalf of theUnion of India has made the following submissions:H

7.1. That the decision of this Court in the case of Dinesh SinghChauhan (supra) is correct law. That the said decision is consistentwith the Article 246 r/w Entry No. 66 of List I and Entry 25 of List IIIof 7[th] schedule of the Constitution; it would not be correct to say, asmentioned in the Referral Order, that the Legislative Entries were notconsidered in judgment of Dinesh Singh Chauhan (supra). As suchin para 24, this Court has specifically approved the judgment in the caseof Preeti Srivastav (supra) and has specifically referred Entry 66 ofList I and has clearly held that Central Legislation and Regulations mustprevail; that the judgment in the case of Dinesh Singh Chauhan(supra) does not digress from the law laid down by the ConstitutionBenches.

Apart from the fact that the judgment in the case of R.Chitralekha vs. State of Mysore[13], specifically negative the contentionsraised by the petitioner, it is to be noted that the said decision was priorto deletion of entry 11 List II and insertion of Entry 25 List III in the7[th] Schedule of the Constitution;

7.2. It is submitted that at the time when the judgment in thecase of R. Chitralekha (supra) was passed there was no Entry 25 inList III (which came after the 42[nd] Amendment) and the two Entrieswhich were relevant for controversy in the said case were Entry 66 ofList 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 Entry11 to legislate in respect of ‘education’ subject to Entry 66 of List I.The expression ‘education’ was held in Gujarat University v. KrishnaRanganath Mudholkar[14] (para 23) to be wide important and includeall matters related to imparting and regulating education. Admittedly,there was no Central Enactment or regulation framed under Entry 66of List I which was to be considered by this Hon’ble Court in the caseof R. Chitralekha (supra);

7.3. That prior to the deletion of entry 11 of List II and insertionof Entry 25 of List III, the Union Parliament could not deal with theissue of imparting and regulating of the education which vestedexclusively in the State Legislature. The power of State Legislaturerelating to ‘education’ was taken away only to the extent Entry 11 ofList II was made subject to relevant entries in the List I including Entry

13 (1964) 6 SCR 368

14 AIR 1963 SC 703 = 1963 Supp (1) SCR 112

A66 and Entry 25 of List III at the relevant time dealt only with ‘vocationaland technical training of labour;

7.4. In facts of R. Chitralekha (supra) the Court found that theexercise of power impugned in the said case of admitting students onthe basis of higher or different qualification than those prescribed byBthe University was not illegal as the procedure adopted only containeda criteria to limit the admission of students into colleges from amongstthose who secured the minimum qualifying marks prescribed. In otherwords, the State Government did not transgress into any forbidden arein the said case;

C7.5. The instant case however deals with the situation whereEntry 11 is shifted from List II to List III as Entry 25, which Entryenlarges the field (now concurrently vested with the State Legislatureand Union Parliament) beyond ‘Universities’ to ‘technical education’and ‘medical education’ also while retaining ‘vocational and technicaltraining of labour’ in the original Entry;D

7.6. The consequence of this change is that the State Legislaturedoes not have exclusive power over imparting and regulating ofeducation. And where the Centre has legislated on this subject, the StateLegislature would be denuded of its power subject of-course to Article254 of the Constitution (which has not been invoked). In the absenceEof such legislative power even executive power would not be availableto the State Government;

7.7. Section 10 has been inserted into Medical Council of IndiaAct (on 24.5.2016) prescribing uniform entrance examination ‘in suchmanner as may be prescribed.’ Section 10 has to be read withFSection 33 (mb) of the Act empowering the MCI to make regulationconcerning the manner of conducting uniform entrance examination bothat the undergraduate and post-graduate level. In exercise of the powerso conferred Post-graduate Regulations were amended in 2018;

7.8. Regulation 9(IV) deals with “All India merit list as well asGState-wise merit list” on the basis of marks obtained in NEET foradmission to “post-graduate courses (both degree and diploma). Theproviso to Regulation 9(IV) stipulates that “in determining the merit ofthe candidates” weightage in marks would be given as provided. Thisis not substantive provision as argued and is clearly proviso toRegulation 9 (IV);H

7.9. Unlike Regulation 9(IV) which deals with both post-graduatedegree and diploma courses, Regulation 9(VIII) deals only with “Post-graduate Diploma Courses” and provides for reservation in the mannerstipulated therein. Regulation 9(VIII) is therefore, special provisionwhich will apply only to the subject within its scope clearly indicatingthat the reservation is limited to diploma courses only. Regulation 9dealing both with ‘determination and coordination of standards’ and‘regulation’ of education has correctly been described as completecode. Not only can there be no interference with the standard prescribedbut there also being regulation of the manner in which standards are toapply by the MCI under Central enactment, the State Governmentcannot interfere with or modify the same;

7.10. In view of the specific provision for in-service candidatesin the MCI Regulations, 2000 framed by the Medical Council of India,more particularly, Regulation 9(IV) r/w 9(VII)/(VIII) and as Regulation9 is held to be complete code and even considering Entry 25 of ListIII, the State would not have any power to legislate anything contraryto MCI Regulations, 2000, more particularly Regulation 9 and cannothave any power to make provision for reservation for in-servicecandidates in post-graduate degree course. Any law framed and/or tobe framed, therefore, would be repugnant to MCI Regulations, 2000framed by the Medical Council of India, framed in exercise of powersunder Section 20 r/w Section 33 of the MCI Act, 1956.

8.0. Learned counsel appearing on behalf of the privaterespondents in the case of State of West Bengal opposing thereservation for in-service candidates has made the followingsubmissions:

8.1. There is no legislation in the State of West Bengal providingfor reservation for in-service candidates. The office memorandum dated18.4.2013, is only an executive instruction, which has been relied uponby the State Government did not find any mention in the original recordsof the Government when perused by the Division Bench of the HighCourt while examining the reasons recorded by the State Governmentfor grant of such reservation;

8.2. Further, merit has become casualty by such reservation inthe State of West Bengal. The country definitely wants more doctorsbut moreover it needs qualified specialists. Reservation at higher levelof professional courses such as medicine should be minimal. Learned

Acounsel has taken us to submission with respect to allotment of PG seatsand corresponding rank of open category and in-service candidates fromthe written submissions. It is submitted that therefore, merit has becomecasualty by such reservation in the State; that the NEET-PG Notificationfor admission to PG Medical Courses throughout the country waspublished on 07.09.2018. NEET-PG 2019 result was published onB31.1.2019. As per the MCI Regulations, State quota counselling tocommence from 25.3.2019. Before that open category candidates madea representation to the State as well as WBUHS (University) on5.3.2019 citing Regulation 9(IV) of the MCI Regulations, 2000 as wellas judgment of this Court in the case of Dinesh Singh Chauhan (supra)Cand the order of the Constitution Bench of this Court in the case ofTamil Nadu Medical Officers Association v. Union of India[15]requesting Government not to reserve any seats for in-servicecandidates. That the said representation has neither been annexed norreferred 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 noDmention of any reservation for in-service candidates. There was specificmention for SC/ST/OBC/PH reservation. Result of round -1 counsellingwas published on 3.4.2019. Again, legal notice and the representationwas made on 18.4.2019 to make admissions in accordance with MCIRegulations and decision of this Court in the case of Dinesh SinghEChauhan (supra). Provisional List for 2[nd] round was published on20.4.2019 without considering the representation. Immediately on23.4.2019 writ petition was filed. On 26.4.2019 learned Single Judgegranted stay on further counselling. On 1.5.2019 the learned SingleJudge modified the interim order that counselling may take place butno admission. That thereafter, the interim order passed by the learnedFSingle Judge was modified by the Division Bench and direction wasissued to complete admission in view of cut-off date of 30.05.2019 butdirected that all admissions shall be subject to final outcome of writpetition; all admitted students to file an undertaking; no equities to beclaimed. SLP was preferred against the interim order passed by theGDivision Bench dated 30.05.2019 before this Court. In that MCIsupported and submitted that there cannot be any reservation of seatsfor in-service candidates. This Court disposed of the SLP with requestto the learned Single Judge to hear the case on day to day basis anddecide it expeditiously. That by judgment and order dated 19.08.2019

H15 (2018) 17 SCC 426

the learned Single Judge allowed the writ petitions and quashed thereservation of seats in PG-Degree Courses for in-service candidates.Consequently, the admission of in-service candidates made against 40%reserved seats came to be cancelled and directed preparation of freshcombined list. That thereafter, impugned judgment and order came tobe passed by the Division Bench. It is submitted that therefore, thegeneral category candidates made their grievance against thereservation for in-service candidates from the very beginning and wellin advance and therefore, there is no delay on their part and therefore,the direction issued by the Division Bench be directed to be compliedwith. As directed by the learned Single Judge and thereafter confirmedby the Division Bench, in-service candidates now cannot be permittedto claim equity;8.3. That in-service candidates are not meritorious and by suchreservation the meritorious general category candidates and non- servicecandidates who have secured more marks in NEET and competitiveexamination will have to suffer; (a) Medical Council of India has beenconstituted as an expert body to control the minimum standards ofmedical education and to regular their observance; (b) Compliance withregulations framed by MCI are mandatory inasmuch as enforcementof these regulations are directly relatable to quality of medicalprofessionals; (c) Regulations framed by the MCI are with priorapproval of the Central Government in terms of Section 33 of the IndianMedical Council Act, 1956 and are binding in nature; (d) Aforesaidbinding nature is apparent from perusal of constitutional scheme forenactment of the Indian Medical Council Act, 1956. Entry 66 of List Iof the seventh schedule provides for ‘co-ordination and determinationof standards in institutions for higher education or research and scientificand technical institution’. Entry 25 of List III in the seventh scheduleof the Constitution provides for ‘Education including technical education,medical education and universities, subject to the provisions of entries63,64,65 and 66 of List I’; It emerges from conjoint reading of Entry66 of List I and Entry 25 of List III that because the Parliamentoccupies the field earmarked for it under Entry 66 of List I or itsconcurrent powers as per Entry 25 in the concurrent list, the questionof admission of students to any medical course would mandatorily haveto be in compliance of the said law framed with reference to Entry 66of List I which is the MCI Act, 1956;

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A8.4. As per catena of decisions, norms of admission includingreservation directly affect the standards of education and therefore, theState cannot frame law breaching the standards laid down by theMCI. Hence reliance is placed on the following decisions:

(1) Preeti Srivastava (supra);

(2) Narayan Sharma (Dr) vs. Pankaj Kr. Lekhar (Dr)[16];

(3) Modern Dental College and Research Centre(supra);

(4) Dinesh Singh Chauhan (supra); and

(5) Tamil Nadu Medical Officers Association vs. Unionof India reported in (2018) 17 SCC 426.

8.5. That selection to Post-graduate Courses stands completelycovered by Regulation 9 of the MCI Regulations, 2000. In support ofthe above, followings submissions are made:

I. MCI Regulations, 2000 were notified after prior approvalfrom Central Government under Section 33 of the MCIAct. The objective of the regulations is to producecompetent specialists and/ or Medical teachers;

II. Regulation 9 prescribes for manner and mode ofEselection of Post-graduate students which affirms theprimacy of merit in selection of candidates to Post-graduate Courses by way of common entranceexamination, i.e. NEET;

III. Regulation 9 further makes distinction in manner andFmode of selection for candidates to ‘Post-graduateDiploma’ courses and ‘Post-graduate Degree’ courses;

IV. Manner of determination of academic merit is prescribedunder Regulation 9(4);

GV. Proviso to Regulation 9(4) provides as under:

“Provided that that in determining the merit of candidateswho are in service of Government/ Public Authority,weightage in the marks may be given by the Government /Competent Authority, as an incentive up to 10% of the marks

H16 (2000) 1 SCC 44

obtained for each year of service in remote and / or difficultareas or rural areas up to maximum of 30% of the marksobtained in National Eligibility-cum-Entrance Test. Theremote and / or difficult areas or rural areas shall be asnotified by State Government /Competent Authority from timeto time.”

VI. It emerges from perusal of the above regulation that (i)PG Degree is distinct and different from PG diploma which is clearfrom perusal of Regulation 9(VIII) wherein 50% seats are reservedfor aforesaid Government medical officers who fulfil the requirementsof service in notified areas (ii) In matters of selection to PG Courses,inter-se merit is the determinative factor, (iii) In determination of merit,the State Government may, with view to incentivize such service, giveweightage in the marks for service in ‘remote’ or ‘difficult’ areas and(iv), the remote and difficult areas shall be notified by State Governmentfrom time to time;

VII. There is no provision for ‘reservation’ of seats for suchcandidates who may have rendered service in remote or difficult areas.At best, and strictly as policy measure, the State Government mayprovide weightage as incentive and nothing more;

VIII. Therefore, Regulation 9 as per its letter and purport clearlyprovides only for weightage, and not reservation. The same has beenso done, in order to incentivize the candidates to render service in‘remote’ and ‘difficult’ areas and at the same time, ensure thatrequirement of ‘inter-se merit’ is not diluted by introduction of schemeof reservation;

8.6. That Regulation 9 is ‘complete code’ governing selectionto PG Courses. In support of the above, following submissions aremade:

A. There is no provision in the Indian Medical Council Act,1956 and MCI Regulations, 2000 stipulating reservationfor in-service candidates against the 30% seats in “Post-Ggraduate Degree Course’;

B. However, the provision is only to give weightage ofmarks to in-service candidates who had worked forspecified period in notified remote, difficult or backwardareas of the State;

C. The State Governments in view of the fact that MCIRegulations have statutory primacy in matters of medicaleducation, could not have framed any statutory Rulesor notify contrary provision by an executive fiat;

D. After having examined the entire Regulation 9 as awhole, in the case of Sudhir N (supra), it is held thatRegulation 9 is complete code in relation to selectionto Post-graduate course.

8.7. That when Regulations prescribe for selection in certainmanner, it must be done in that manner alone and not otherwise.

The MCI Regulations governed the field of admission to PGCourses and Regulation 9 of the MCI Regulations, 2000 is self-contained code and Regulation 9 does not provide for anything otherthan weightage, and that too, upon identification of remote & difficultareas by the State Government, the State could not have provided forDany reservation for in-service candidates contrary to the Central Actand the MCI Regulations, 2000;

8.8. Thus, the State is not competent to separately reserve aspecific number of seats for candidates who have served in notifiedareas. Such candidates who had rendered services in notified rural andEdifficult areas are entitled to weightage in terms of proviso to Regulation9(IV);

8.9. Regulations have been framed with conscious decision tonot provide any reservation, as the same shall invariably have an adverseeffect on the inter-se merit and many candidates merely by virtue ofFbeing in–service candidates may steal march over candidates higherin merit;

8.10. That the provisions regarding giving weightage to thein-service candidates by way of incentive marks has been introducedin larger public interest and the same is just, rational and proper andthere was no occasion to enlarge the scope and provide for reservation,Gwhen the regulation itself does not contemplate any such reservation;

8.11. The State is obliged to adopt procedure as stipulated bythe Central Act and Regulation framed thereunder;

8.12. That when there is categorical expression of weightage, itHwould automatically exclude reservation in cases of admission to PGDegree courses;

8.13. Regulation 9 even if read liberally does not provide forreservation for in-service candidates, but only for giving weightagein the form of incentive marks as specified to the class of in-servicecandidates (who have served in notified remote and difficult areas inthe State);

8.14. Any reservation at the stage of Post-graduate Medicaleducation will necessarily result in dilution of minimum standards andmerit and will therefore, be contrary to the objective of the regulationitself;

8.15. Providing any reservation despite the same not beingprovided for in the Regulations would be akin to redrafting theRegulations itself. After due deliberations and keeping in mind the pastexperience, Medical Council of India has framed Regulations inter aliaproviding for giving incentive marks to in-service candidates who haveworked in notified remote and difficult areas in the State to determinetheir merit. The Regulation, as has been brought into force, aftersuccessive amendments, and providing any reservation contrary to theregulation would undo the regulation itself.

9. In the case of Dinesh Singh Chauhan (supra), the veryRegulation 9(IV) and 9(VII) fell for consideration. In the case ofDinesh Singh Chauhan (supra), after considering the decision of thisCourt in the case of Preeti Srivastava (supra), in para 24, it is heldas under:

“24. By now, it is well established that Regulation 9 is self-contained code regarding the procedure to be followed foradmissions to medical courses. It is also well established that theState has no authority to enact any law much less by executiveinstructions that may undermine the procedure for admission topostgraduate medical courses enunciated by the Centrallegislation and regulations framed thereunder, being subjectfalling 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 postgraduatedegree courses is one such area on which the Central legislationand regulations must prevail.”

(emphasis supplied)

9.1 Thereafter Regulation 9 has been considered in detail, therelevant paras are paras 26, 27, 29, 30, 31, 32, 33, 35, 39, 47, whichread as under:

“26. From the plain language of this proviso, it is amply clearthat it does not envisage reservation for in-service candidates inrespect of postgraduate “degree” courses with which we arepresently concerned. This proviso postulates giving weightage ofmarks to “specified in-service candidates” who have worked innotified remote and/or difficult areas in the State—both forpostgraduate “degree” courses as also for postgraduate“diploma” courses. Further, the weightage of marks so allottedis required to be reckoned while preparing the merit list ofcandidates.27. Thus understood, the Central enactment and the regulationsframed thereunder do not provide for reservation for in-servicecandidates in postgraduate “degree” courses. As there is noexpress provision prohibiting reservation to in-service candidatesin respect of admission to postgraduate “degree” courses, it wascontended that providing for such reservation by the StateGovernment is not impermissible in law. Further, there areprecedents of this Court to suggest that such arrangement ispermissible as separate channel of admission for in-servicecandidates. This argument does not commend to us. In the firstplace, the decisions pressed into service have considered theprovisions regarding admission process governed by theregulations in force at the relevant time. The admission processin the present case is governed by the regulations which havecome into force from the academic year 2013-2014. ThisRegulation is self-contained code. There is nothing in thisRegulation to even remotely indicate that separate channel foradmission to in-service candidates must be provided, at least inrespect of postgraduate “degree” courses. In contradistinction,however, 50% seats are earmarked for the postgraduate“diploma” courses for in-service candidates, as is discerniblefrom clause (VII). If the regulation intended similar separatechannel for in-service candidates even in respect of postgraduate“degree” courses, that position would have been made clear inRegulation 9 itself. In absence thereof, it must be presumed thata separate channel for in-service candidates is not permissible

for admission to postgraduate “degree” courses. Thus, the StateGovernment, in law, had no authority to issue Government Ordersuch as dated 28-2-2014, to provide to the contrary. Hence, theHigh Court was fully justified in setting aside the said governmentorder being contrary to the mandate of Regulation 9 of the 2000Regulations, as applicable from the academic year 2013-2014.

29. In the present case, we have held that providing 30%reservation to in-service candidates in postgraduate “degree”courses is not permissible. It does not, however, follow that givingweightage or incentive marks to in-service candidates forpostgraduate “degree” courses entails in excessive or substantialdeparture from the rule of merit and equality. For, Regulation 9recognises the principle of giving weightage to in-servicecandidates while determining their merit. In that sense, incentivemarks given to in-service candidates is in recognition of theirservice reckoned in remote and difficult areas of the State, whichmarks are to be added to the marks obtained by them in NEET.Weightage or incentive marks specified in Regulation 9 are thuslinked to the marks obtained by the in-service candidate in NEETand reckon the commensurate experience and services renderedby them in notified remote/difficult areas of the State. That is alegitimate and rational basis to encourage the medical graduates/doctors to offer their services and expertise in remote or difficultareas of the State for some time. Indisputably, there is widegap between the demand for basic health care and commensuratemedical facilities, because of the inertia amongst the youngdoctors to go to such areas. Thus, giving specified incentive marks(to eligible in-service candidates) is permissible differentiationwhilst determining their merit. It is an objective method ofdetermining their merit.

30. Coming to the next decision pressed into service in State ofM.P. v. Gopal D. Tirthani (2003) 7 SCC 83, it was case ofconducting separate entrance test for in-service candidates. Thatwas frowned upon by this Court. The Court, however, suggestedmodality of preparing two separate merit list for the twocategories and merit inter se of the successful candidates to beassessed separately in the two respective categories. The Courthad examined the question as to whether weightage can be given

to doctors for having rendered specified number of years ofservice in rural/tribal areas to determine the inter se merit. TheCourt analysed four earlier decisions of this Court; to wit, DineshKumar 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 andState of U.P. v. Pradip Tandon (1975) 1 SCC 267. The Courtin para 33 observed thus: (Tirthani case (2003) 7 SCC 83, SCCp. 106)

“33. … The case at hand presents an entirely different scenario.Firstly, it is case of postgraduation within the State and not anall-India quota. Secondly, it is not case of reservation, but oneof only assigning weightage for service rendered in rural/tribalareas. Thirdly, on the view of the law we have taken hereinabove,the assigning of weightage for service rendered in rural/tribalareas does not at all affect in any manner the candidates in opencategory. The weightage would have the effect of altering theorder of merit only as amongst the candidates entering throughthe exclusive channel of admissions meant for in-servicecandidates within the overall service quota. The statistics set outin the earlier part of the judgment provide ample justification forsuch weightage being assigned. We find merit and muchsubstance in the submission of the learned Advocate Generalfor the State of Madhya Pradesh that Assistant Surgeons (i.e.medical graduates entering the State services) are nottemperamentally inclined to go to and live in villages so asto make available their services to the rural population; they

have temptation for staying in cities on account of betterconditions, better facilities and better quality of life availablenot only to them but also to their family members as alsobetter educational facilities in elite schools which are to befound only in cities. In-service doctors being told in advanceand knowing that by rendering service in rural/tribal areasthey can capture better prospects of earning higherprofessional qualifications, and consequently eligibility forpromotion, acts as motivating factor and provides incentiveto young in-service doctors to opt for service in rural/tribalareas. In the set-up of health services in the State of MadhyaPradesh and the geographical distribution of population, no

fault can be found with the principle of assigning weightageto the service rendered in rural/tribal areas while finalisingthe merit list of successful in-service candidates for admissionto PG courses of studies. Had it been reservation,considerations would have differed. There is no specific challengeto the quantum of weightage and in the absence of any materialbeing available on record we cannot find fault with the rule ofweightage as framed. We hasten to add that while recasting andreframing the rules, the State Government shall take care to seethat the weightage assigned is reasonable and is worked out ona rational basis.”

31. However, in the present case, the Medical Council of Indiaitself has framed regulation predicating one merit list by addingthe weightage of marks assigned to in-service candidates fordetermining their merit in NEET.

32. The imperative of giving some incentive marks to doctorsworking in the State and more particularly serving in notifiedremote or difficult areas over period of time need not beunderscored. For, the concentration of doctors is in urban areasand the rural areas are neglected. Large number of posts in publichealthcare units in the State are lying vacant and unfilled in spiteof sincere effort of the State Government. This problem is facedby all States across India. This Court in Snehelata case (1992)2 SCC 26 had left it to the authorities to evolve norms regardinggiving incentive marks to the in-service candidates. The MedicalCouncil of India is an expert body. Its assessment about themethod of determining merit of the competing candidates mustbe accepted as final [State of Kerala v. T.P. Roshana (1979) 1SCC 572 (SCC para 16); also see Medical Council of India v.State of Karnataka (1998) 6 SCC 131]. After due deliberationsand keeping in mind the past experience, Medical Council of Indiahas framed regulations, inter alia, providing for giving incentivemarks to in-service candidates who have worked in notifiedremote and difficult areas in the State to determine their merit.The Regulation, as has been brought into force, after successiveamendments, is an attempt to undo the mischief.

33. As aforesaid, the real effect of Regulation 9 is to assignspecified marks commensurate with the length of service

rendered by the candidate in notified remote and difficult areasin the State linked to the marks obtained in NEET. That is aprocedure prescribed in the Regulation for determining merit ofthe candidates for admission to the postgraduate “degree” coursesfor single State. This serves dual purpose. Firstly, the freshqualified doctors will be attracted to opt for rural service, as laterthey would stand good chance to get admission to postgraduate“degree” courses of their choice. Secondly, the rural healthcareunits run by the public authority would be benefited by doctorswilling to work in notified rural or difficult areas in the State. Inour view, Regulation such as this subserves larger publicinterest. Our view is reinforced from the dictum in SnehelataPatnaik case (1992) 2 SCC 26. The three-Judge Bench by aspeaking order opined that giving incentive marks to in-servicecandidates is inexorable. It is apposite to refer to the dictum inthe said decision which reads thus: (SCC pp. 26-27, paras 1-2)

“1. We have already dismissed the writ petition and specialleave petitions by our order dated 5-12-1991. We would,however, like to make suggestion to the authorities for theirconsideration that some preference might be given to in-servicecandidates who have done five years of rural service. In thefirst place, it is possible that the facilities for keeping up withthe latest medical literature might not be available to such in-service candidates and the nature of their work makes itdifficult for them to acquire knowledge about very recentmedical research which the candidates who have come afterfreshly passing their graduation examination might have.Moreover, it might act as an incentive to doctors who haddone their graduation to do rural service for some time.Keeping in mind the fact that the rural areas had sufferedgrievously for non-availability of qualified doctors givingsuch incentive would be quite in order. The learned counselfor the respondents has, however, drawn our attention to thedecision of Division Bench of two learned Judges of thisCourt in Dinesh Kumar v. Motilal Nehru Medical College(1986) 3 SCC 727. It has been observed there that merelyby offering weightage of 15% to doctor for three years’rural service would not bring about migration of doctors fromthe urban to rural areas. They observed that if you want toTAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v.UNION OF INDIA & OTHERS [M. R. SHAH, J.]

produce doctors who are MD or MS, particularly surgeons,who are going to operate upon human beings, it is of utmostimportance that the selection should be based on merit. Thelearned Judges have gone on to observe that no weightageshould be given to candidate for rural service rendered byhim so far as admissions to postgraduate courses areconcerned (see Dinesh Kumar case (1986) 3 SCC 727, SCCpara 12 at p. 741).

2. In our opinion, this observation certainly does notconstitute the ratio of the decision. The decision is in noway dependent upon these observations. Moreover, thoseobservations are in connection with all-India selection and donot have equal force when applied to selection from asingle State. These observations, however, suggest that theweightage to be given must be the bare minimum requiredto meet the situation. In these circumstances, we are of theview that the authorities might well consider givingweightage up to maximum of 5% of marks in favour ofin-service candidates who have done rural service for fiveyears or more. The actual percentage would certainlyhave to be left to the authorities. We also clarify that thesesuggestions do not in any way confer any legal right on in-service students who have done rural service nor do thesuggestions have any application to the selection of thestudents up to the end of this year.”

35. As aforesaid, the Regulations have been framed by an expertbody based on past experience and including the necessity toreckon the services and experience gained by the in-servicecandidates in notified remote and difficult areas in the State. Theproviso prescribes the measure for giving incentive marks to in-service candidates who have worked in notified remote anddifficult areas in the State. That can be termed as qualitativefactor for determining their merit. Even the quantitative factorto reckon merit of the eligible in-service candidates is spelt outin the proviso. It envisages giving of incentive marks @ 10% ofthe marks obtained for each year of service in remote and/ordifficult areas up to 30% of the marks obtained in NEET. It isan objective method of linking the incentive marks to the marks

obtained in NEET by the candidate. To illustrate, if an in-servicecandidate who has worked in notified remote and/or difficultarea in the State for at least one year and has obtained 150 marksout of 200 marks in NEET, he or she would get 15 additionalmarks; and if the candidate has worked for two years, thecandidate would get another 15 marks. Similarly, if the candidatehas worked for three years and more, the candidate would geta further 15 marks in addition to the marks secured in NEET.15 marks out of 200 marks in that sense would work out to aweightage of 7.5% only, for having served in notified remote and/or difficult areas in the State for one year. Had it been caseof giving 10% marks en bloc of the total marks irrespective ofthe marks obtained by the eligible in-service candidates in NEET,it would have been different matter. Accordingly, someweightage marks given to eligible in-service candidate linked toperformance in NEET and also the length of service in remoteand/or difficult areas in the State by no standard can be said tobe excessive, unreasonable or irrational. This provision has beenbrought into force in larger public interest and not merely toprovide institutional preference or for that matter to createseparate channel for the in-service candidate, much lessreservation. It is unfathomable as to how such provision canbe said to be unreasonable or irrational.39. Reverting to the recent decision of this Court in Sudhir N.(2015) 6 SCC 685, the two-Judge Bench was dealing with thequestion of selection of in-service medical officers forpostgraduate medical education under Section 5(4) of the KeralaMedical Officers Admission to Postgraduate Courses under theService Quota Act, 2008. The said provision has been extractedin para 5 of the reported decision. It deals with the finalisationof select list by the Postgraduate Course Select Committeestrictly on the basis of seniority in service of the medical officersand following such other criteria as may be prescribed. Dealingwith that challenge the Court noticed that Regulation 9 is acomplete code by itself and then proceeded to answer thequestion whether the State was competent to enact law on thematter of admission on the basis of inter se seniority ofcandidates. In that context, the Court noted that the basis ofselection must be strictly as per norms specified in the MCI

Regulations. Any law with regard to that will be beyond legislativecompetence of the State Legislature. The Court noted thatweightage for in-service candidates is made permissible byRegulation 9. That is the limited departure from the merit listcriteria permitted by the Regulation itself. Neither in Sudhir N.(2015) 6 SCC 685 nor Tirtha (2003) 7 SCC 83 the Court hadthe occasion to deal with the question regarding challenge to theproviso to clause (IV) of Regulation 9.

47. We must hold that the High Court was justified in quashingthe stated government order providing for reservation to in-service candidates, being violative of Regulation 9 as in force.However, we modify the operative direction given by the HighCourt and instead direct that admission process for academicyear 2016-2017 onwards to the postgraduate degree course inthe State should proceed as per Regulation 9 including by givingincentive marks to eligible in-service candidates in terms ofproviso to clause (IV) of Regulation 9 [equivalent to third provisoto Regulation 9(2) of the old Regulations reproduced in the interimorder dated 12-5-2016]. We, accordingly, mould the operativeorder of the High Court to bring it in conformity with the directioncontained in the interim order dated 12-5-2016but to be madeapplicable to academic year 2016-2017 onwards on the basis ofRegulation 9 as in force. We are conscious of the fact that thisarrangement is likely to affect some of the direct candidates, ifnot large number of candidates whose applications were alreadyprocessed by the competent authority for postgraduate degreecourse concerned for academic year 2016-2017. However, theiradmissions cannot be validated in breach of or disregarding themandate of Regulation 9, as in force. The appeals against thejudgment of the High Court of Judicature at Allahabad dated 7-4-2016 are disposed of accordingly.”

(emphasis supplied)

9.2.The present batch of cases came up for hearing beforeanother Bench of three Judges. The Bench was of the opinion that thepresent batch of cases require consideration by larger Bench and thatis how the present batch of cases are referred to larger Bench. Onthe basis of the submissions made, the following reasons werementioned:

A(i) The decision in Dinesh Singh Chauhan (supra) hasnot considered the entries in the legislative lists ofthe Seventh Schedule, more particularly, Entry 66 ofthe Union List and Entry 25 of the Concurrent List;

(ii) The main contention of the petitioners is that whileBcoordination and determination of standards ininstitutions for higher education falls within theexclusive domain of the Union (Entry 66 List I),medical education is subject in the Concurrent List(Entry 25 List III). Though, Entry 25 of List III issubject to Entry 66 of List I, the State is not denudedCof its power to legislate on the manner and methodof making admission to postgraduate medicalcourses.

(iii) The contentions which have been raised in thepresent batch of petitions were not addressed beforeDthis Court in Dinesh Singh Chauhan (supra).

(iv) The judgment in Dinesh Singh Chauhan (supra)does not consider three decisions of the ConstitutionBench in R. Chitralekha (supra), Chitra Ghosh(supra) and Modern Dental College & ResearchECenter (supra); and

(v) There are decisions rendered by Benches of an equalstrength as in Dinesh Singh Chauhan (supra).

9.3 Therefore, the following issues arise for consideration andFdetermination of this Court in the present batch of writ petitions/appeals:

1. What is the scope and ambit of Entry 66 of List I?

2. What will be the impact/effect of MCI Regulations, 2000framed by the Medical Council of India in exercise ofits powers under Section 33 of the Indian MedicalGCouncil Act, 1956?

3. Whether in view of Entry 66 of List I, the State isdenuded of its power to legislate on the manner andmethod of the postgraduate medical courses, moreparticularly, making special provisions for in-servicecandidates in the postgraduate degree/diploma courses?

4. Whether Regulation 9 of MCI Regulations, 2000, moreparticularly, Regulation 9(IV) and 9(VII) takes away thepower of the States under Entry 25 of List III to providefor separate source of entry for in-service candidatesseeking admission to postgraduate medical courses?

5. Whether Regulation 9 of MCI Regulations, 2000 isunderstood to not allow for the States to provide for aseparate source of entry for in-service candidatesseeking admission to postgraduate degree courses, thesame is arbitrary, discriminatory and violative of Articles14 and 19(1)(g) of the Constitution of India, and alsoultra vires of the provisions of the Indian Medical CouncilAct, 1956?

6. Whether Regulation 9 is complete code in itself, asobserved by this Court in the case of Dinesh SinghChauhan (supra) affecting the rights/authority of theStates to provide for reservation and/or separate sourceof entry for in-service candidates seeking admission topostgraduate degree courses?

10. While considering the aforesaid issues, let us first considerthe scope and ambit of Entry 66 of List I – legislative competence ofthe Union in exercise of powers under Entry 66, List I of ScheduleVII of the Constitution of India.

10.1 In the case of Modern Dental College & Research Centre(supra), Constitution Bench of this Court again had an occasion todeal with and consider Entry 66 List I and Entry 25 List III. Afterconsidering catena of decisions of this Court, more particularly, thedecisions of this Court in the cases of Gujarat University (supra);R. Chitralekha (supra); Preeti Srivastava (supra); and BharatiVidyapeeth v. State of Maharashtra[17], it is held by this Court thatEntry 66 in List I is specific entry having very specific and limitedscope. It is further observed by this Court that it deals with“coordination and determination of standards” in institution of highereducation or research as well as scientific and technical institutions.The words “coordination and determination of standards” would meanlaying down the said standards. It is observed that thus, when it comes

Ato prescribing the standards for such institutions of higher learning,exclusive domain is given to the Union. The relevant observations arein paragraphs 101 to 105, which read as under:

“101. To our mind, Entry 66 in List I is specific entry havinga very specific and limited scope. It deals with coordination anddetermination of standards in institution of higher education orresearch as well as scientific and technical institutions. The words“coordination and determination of standards” would meanlaying down the said standards. Thus, when it comes toprescribing the standards for such institutions of higher learning,exclusive domain is given to the Union. However, that would notinclude conducting of examination, etc. and admission of studentsto such institutions or prescribing the fee in these institutions ofhigher education, etc. In fact, such coordination and determinationof standards, insofar as medical education is concerned, isachieved by parliamentary legislation in the form of the IndianMedical Council Act, 1956 and by creating the statutory bodylike Medical Council of India (for short “MCI”) therein. Thefunctions that are assigned to MCI include within its sweepdetermination of standards in medical institution as well ascoordination 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 areimparting higher education), that is prescribed in List III Entry25, thereby giving concurrent powers to both Union as well asStates. It is significant to note that earlier education, includinguniversities, was the subject-matter of List II Entry 11[“11. ”Education” including universities, subject to the provisionsof 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 (Forty-secondAmendment) Act, 1976 with effect from 3-7-1977 and at thesame time List II Entry 25 was amended [Unamended Entry 25in List III read as: “Vocational and technical training of labour”].Education, including university education, was thus transferredto the Concurrent List and in the process technical and medicaleducation was also added. Thus, if the argument of the appellantsis accepted, it may render Entry 25 completely otiose. When twoentries relating to education, one in the Union List and the other

in the Concurrent List, coexist, they have to be readharmoniously. Reading in this manner, it would become manifestthat when it comes to coordination and laying down of standardsin the higher education or research and scientific and technicalinstitutions, power rests with the Union/Parliament to the exclusionof the State Legislatures. However, other facets of education,including technical and medical education, as well as governanceof universities is concerned, even State Legislatures are givenpower by virtue of Entry 25. The field covered by List III Entry25 is wide enough and as circumscribed to the limited extent ofit being subject to List I Entries 63, 64, 65 and 66.102. Most educational activities, including admissions, have twoaspects: the first deals with the adoption and setting up theminimum standards of education. The objective in prescribingminimum standards is to provide benchmark of the calibre andquality of education being imparted by various educationalinstitutions in the entire country. Additionally, the coordination ofthe standards of education determined nationwide is ancillary tothe very determination of standards. Realising the vast diversityof the nation wherein levels of education fluctuated from lackof even basic primary education, to institutions of high excellence,it was thought desirable to determine and prescribe basicminimum standards of education at various levels, particularly atthe level of research institutions, higher education and technicaleducation institutions. As such, while balancing the needs of Statesto impart education as per the needs and requirements of localand regional levels, it was essential to lay down uniformminimum standard for the nation. Consequently, the Constitution-makers provided for List I Entry 66 with the objective ofmaintaining uniform standards of education in fields of research,higher education and technical education.

103. The second/other aspect of education is with regard to theimplementation of the standards of education determined byParliament, and the regulation of the complete activity ofeducation. This activity necessarily entails the application of thestandards determined by Parliament in all educational institutionsin accordance with the local and regional needs. Thus, while ListI 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 aspectsof education, except the determination of minimum standards andcoordination which was in national interest. Subsequently, videthe Constitution (Forty-second Amendment) Act, 1976, theexclusive legislative field of the State Legislature with regard toeducation was removed and deleted, and the same was replacedby amending List III Entry 25 granting concurrent powers to bothParliament and State Legislature the power to legislate withrespect to all other aspects of education, except that which wasspecifically covered by List I Entries 63 to 66.104. No doubt, in Bharati Vidyapeeth [BharatiVidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2SCEC 535] it has been observed that the entire gamut ofadmission falls under List I Entry 66. The said judgment by aBench of two Judges is, however, contrary to law laid down inearlier larger Bench decisions. In Gujarat University [GujaratUniversity v. Krishna Ranganath Mudholkar, AIR 1963 SC703 : 1963 Supp (1) SCR 112] , Bench of five Judges examinedthe 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 ofthe State to legislate in respect of education to the extent it isentrusted to Parliament, is deemed to be restricted. Coordinationand determination of standards was in the purview of List I andpower of the State was subject to power of the Union on thesaid subject. It was held that the two entries overlapped to someextent and to the extent of overlapping the power conferred byList I Entry 66 must prevail over power of the State. Validity ofa State legislation depends upon whether it prejudicially affects“coordination or determination of standards”, even inabsence of Union legislation. In R. Chitralekha v. State ofMysore [R. Chitralekha v. State of Mysore, AIR 1964 SC 1823: (1964) 6 SCR 368] , the same issue was again considered. Itwas observed that if the impact of the State law is heavy ordevastating as to wipe out or abridge the Central field, it may bestruck 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 wasobserved that to the extent that State legislation is in conflict withthe Central legislation under Entry 25, it would be void and

inoperative. To the same effect is the view taken in PreetiSrivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC120 : 1 SCEC 742] and State of Maharashtra v. SantDnyaneshwar Shikshan Shastra Mahavidyalaya [State ofMaharashtra v. Sant Dnyaneshwar Shikshan ShastraMahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637] . Though theview taken in State of M.P. v. Nivedita Jain [State ofM.P. v. Nivedita Jain, (1981) 4 SCC 296] and Ajay KumarSingh v. State of Bihar [Ajay Kumar Singh v. State of Bihar,(1994) 4 SCC 401] to the effect that admission standards coveredby List I Entry 66 could apply only post admissions was overruledin Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999)7 SCC 120 : 1 SCEC 742] , it was not held that the entire gamutof admissions was covered by List I as wrongly assumedin Bharati Vidyapeeth [Bharati Vidyapeeth v. State ofMaharashtra, (2004) 11 SCC 755 : 2 SCEC 535] .

105. We do not find any ground for holding that PreetiSrivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC120 : 1 SCEC 742] excludes the role of States altogether fromadmissions. Thus, observations in Bharati Vidyapeeth [BharatiVidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2SCEC 535] that entire gamut of admissions was covered by ListI Entry 66 cannot be upheld and overruled to that extent. Nodoubt, List III Entry 25 is subject to List I Entry 66, it is notpossible to exclude the entire gamut of admissions from List IIIEntry 25. However, exercise of any power under List III Entry25 has to be subject to Central law referable to Entry 25.”

(emphasis supplied)

In the concurring judgment, Bhanumati, J. in paragraphs 131 to134 and 147 to 149, has held as under:

“131. In order to answer the concern of other ConstitutionFramers, Dr Ambedkar went on to clarify the limited scope ofList I Entry 66 (as in the present form), as proposed by him inthe following words: (CAD Vol. 9, p. 796)

“Entry 57-A merely deals with the maintenance of certainstandards in certain classes of institutions, namely, institutionsimparting higher education, scientific and technical institutions,

ABC

DEF

institutions for research, etc. You may ask, “why this entry?”I shall show why it is necessary. Take for instance, the BADegree examination which is conducted by the differentuniversities in India. Now, most provinces and the Centre,when advertising for candidates, merely say that the candidateshould be graduate of university. Now, suppose theMadras University says that candidate at the BAExamination, if he obtained 15% of the total marks shall bedeemed to have passed that examination; and suppose theBihar University says that candidate who has obtained 20%of marks shall be deemed to have passed the BA degreeexamination; and some other university fixes some otherstandard, then it would be quite chaotic condition, and theexpression that is usually used, that the candidate should bea graduate, I think, would be meaningless. Similarly, there arecertain research institutes, on the results of which so manyactivities of the Central and Provincial Governments depend.Obviously, you cannot permit the results of these technical andscientific institutes to deteriorate from the normal standard andyet allow them to be recognised either for the Central

purposes, for all-India purposes or the purposes of the State.”

132. The intent of our Constitution Framers while introducingEntry 66 of the Union List was thus limited only to empoweringthe Union to lay down uniform standard of higher educationthroughout the country and not to bereft the State Legislature ofits entire power to legislate in relation to “education” andorganising its own common entrance examination.

133. If we consider the ambit of the present Entry 66 of theUnion List; no doubt the field of legislation is of very wide importand determination of standards in institutions for higher education.In the federal structure of India, as there are many States, it isfor the Union to coordinate between the States to cause themto work in the field of higher education in their respective Statesas per the standards determined by the Union. Entry 25 in theConcurrent List is available both to the Centre and the States.However, power of the State is subject to the provisions ofEntries 63, 64, 65, and 66 of the Union List; while the State iscompetent to legislate on the education including technical

education, medical education and universities, it should be as perthe standards set by the Union.

134. The words “coordination” and “determination of thestandards in higher education” are the preserve of Parliamentand are exclusively covered by Entry 66 of the Union List. Theword “coordination” means harmonisation with view to forgea uniform pattern for concerted action. The term “fixing ofstandards of institutions for higher education” is for the purposeof harmonising coordination of the various institutions for highereducation across the country. Looking at the present distributionof legislative powers between the Union and the States withregard to the field of “education”, that State’s power to legislatein relation to “education, including technical education,medical education and universities” is analogous to that of theUnion. However, such power is subject to Entries 63, 64, 65 and66 of the Union List, as laid down in Entry 25 of the ConcurrentList. It is the responsibility of the Central Government todetermine the standards of higher education and the same shouldnot be lowered at the hands of any particular State.147. Another argument that has been put forth is that the powerto enact laws laying down process of admission in universities,etc. vests in both Central and State Governments under Entry25 of the Concurrent List only. Under Entry 25 of the ConcurrentList and erstwhile Entry 11 of the State List, the StateGovernment has enacted various legislations that inter aliaregulate admission process in various institutions. For instance,Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam, RajivGandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya VidhiSansathan Vishwavidyalaya Adhiniyam, etc. were established bythe State Government in exercise of power under Entry 25 ofthe Concurrent List. Similarly, the Central Government has alsoenacted various legislations relating to higher education underEntry 25 of the Concurrent List pertaining to Centrally fundeduniversities such as the Babasaheb Bhimrao AmbedkarUniversity Act, 1994, the Maulana Azad National Urdu UniversityAct, 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, JIPMER, etc. but not in respect of other institutions runningin the State.

148. In view of the above discussion, it can be clearly laid downthat power of the Union under Entry 66 of the Union List is limitedto prescribing standards of higher education to bring aboutuniformity in the level of education imparted throughout thecountry. Thus, the scope of Entry 66 must be construed limitedto its actual sense of “determining the standards of highereducation” and not of laying down admission process. In no caseis the State denuded of its power to legislate under List III Entry25. More so, pertaining to the admission process in universitiesimparting higher education.

149. I have no hesitation in upholding the vires of the impugnedlegislation which empowers the State Government to regulateadmission process in institutions imparting higher education withinDthe State. In fact, the State being responsible for welfare anddevelopment of the people of the State, ought to take necessarysteps for welfare of its student community. The field of “highereducation” being one such field which directly affects the growthand development of the State, it becomes prerogative of the StateEto take such steps which further the welfare of the people andin particular pursuing higher education. In fact, the StateGovernment should be the sole entity to lay down the procedurefor admission and fee, etc. governing the institutions running inthat particular State except the Centrally funded institutions likeIIT, NIT, etc. because no one can be better judge of theFrequirements and inequalities-in-opportunity of the people of aparticular State than that State itself. Only the State legislationcan create equal level playing field for the students who arecoming out from the State Board and other streams.”

(emphasis supplied)

Thus, as held by the Constitution Bench of this Court in the caseof Modern Dental College (supra), in which this Court consideredcatena of earlier decisions of this Court dealing with the scope and ambitof Entry 66 List I, Entry 66 of List I is specific entry having veryspecific and limited scope; it deals with “Coordination and DeterminationHof 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 downthe said standards and therefore when it comes to prescribe thestandards for such institutions of higher learning, exclusive domain isgiven to the Union. It is specifically further observed that that wouldnot include conducting of examination etc. and admission of studentsto such institutions or prescribing the fee in these institutions of highereducation, etc. Thus, in exercise of powers under Entry 66 List I, theUnion cannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission within theState quota, which powers are conferred upon the States under Entry25 of List III. In exercise of powers under Entry 25 List III, the Stateshave power to make provision for mode of admissions, looking to therequirements 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 heldto be permissible by the concerned States, (see D.N. Chanchala(supra); Pradeep Jain v. Union of India[18]; Dr. Dinesh Kumar v.Motilal Nehru Medical College, Allahabad[19]; Gujarat Universityv. Rajiv Gopinath Bhatt[20]; AIIMS Students’ Union (supra); SaurabhChaudri v. Union of India[21]; and Yatinkumar Jasubhai Patel(supra)).

10.3 In recent decision of this Court in the case of YatinkumarJasubhai Patel (supra), the issue of “institutional preference” withinthe State quota was considered in which the Gujarat University framedthe 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 perthe All India 50% quota and the remaining seats will be available forthe candidates passing from the Gujarat University. That was providedto the candidates graduating from the Gujarat University. The aforesaidrule of “institutional preference” was challenged before the High Court.The vires of the afore-stated rules providing “institutional preference”giving preference to the candidates graduated from the GujaratUniversity was challenged on the ground that in view of introduction

18 (1984) 3 SCC 654

19 (1986) 3 SCC 727

20 (1996) 4 SCC 60

21 (2003) 11 SCC 146

Aof the NEET and the admissions are given solely on the basis of themerit and the marks obtained in NEET, the rules providing “institutionalpreference” shall be violative of the Indian Medical Council Act, 1956and the MCI Regulations, 2000 framed under the Indian Medical CouncilAct, 1956. The High Court dismissed the writ petition upholding the“institutional preference”. The same was the subject matter before thisBCourt. It was submitted on behalf of the writ petitioners that even theMCI Regulations for postgraduate admissions, MCI Regulations, 2000,do not permit the “institutional preference” and that the MCIRegulations, 2000 held by this Court to be complete code andtherefore no reservation is to be provided unless the same is permittedCunder the MCI Regulations, 2000. The decision of this Court in the caseof Dinesh Singh Chauhan (supra) was also placed into service.However, considering the plethora of decisions of this Court, referredto 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 “institutionalDpreference” up to 50% seats is permissible.11. Now let us consider the scope and ambit of the MCIRegulations, 2000, and whether MCI Regulations, 2000 take away thepower of the States under Entry 25 List III to provide for separatesource of entry for in-service candidates seeking admission toEpostgraduate degree courses?

11.1 At this stage, Regulation 9 of MCI Regulations, 2000, asamended on 15.2.2012, is required to be referred to, which reads asunder:F“9. Regulation 9, as amended on 15-2-2012, reads as follows:

“9. Procedure for selection of candidate for postgraduatecourses shall be as follows:

(I) There shall be single eligibility-cum-entranceexamination, namely, “National Eligibility-cum-EntranceGTest for admission to Postgraduate Medical Courses”in each academic year. The superintendence, directionand control of National Eligibility-cum-Entrance Test shallvest with National Board of Examinations under overallsupervision of the Ministry of Health & Family Welfare,Government of India.H

(II) 3% seats of the annual sanctioned intake capacity shallbe filled up by candidates with locomotory disability oflower limbs between 50% to 70%:

Provided that in case any seat in this 3% quota remainsunfilled on account of unavailability of candidates withlocomotory disability of lower limbs between 50% to70% then any such unfilled seat in this 3% quota shallbe filled up by persons with locomotory disability oflower limbs between 40% to 50% before they areincluded in the annual sanctioned seats for generalcategory candidates:

Provided further that this entire exercise shall becompleted by each medical college/institution as per thestatutory time schedule for admissions.

(III) In order to be eligible for admission to any postgraduatecourse in particular academic year, it shall benecessary for candidate to obtain minimum of marksat 50th percentile in “National Eligibility-cum-EntranceTest for Postgraduate courses” held for the saidacademic year. However, in respect of candidatesbelonging to the Scheduled Castes, the Scheduled Tribes,the Other Backward Classes, the minimum marks shallbe at 40th percentile. In respect of candidates asprovided in clause (II) above with locomotory disabilityof lower limbs, the minimum marks shall be at 45thpercentile. The percentile shall be determined on thebasis of highest marks secured in the all-India commonmerit list in “National Eligibility-cum-Entrance Test” forpostgraduate courses:

Provided when sufficient number of candidates in therespective categories fail to secure minimum marks asprescribed in National Eligibility-cum-Entrance Test heldfor any academic year for admission to postgraduatecourses, the Central Government in consultation with theMCI may at its discretion lower the minimum marksrequired for admission to postgraduate course forcandidates belonging to respective categories and marks

Aso lowered by the Central Government shall beapplicable for the said academic year only.

(IV) The reservation of seats in medical colleges/institutionsfor respective categories shall be as per applicable lawsprevailing in States/Union Territories. An all-India meritlist as well as Statewise merit list of the eligiblecandidates shall be prepared on the basis of themarks obtained in National Eligibility-cum-EntranceTest and candidates shall be admitted topostgraduate courses from the said merit lists only:

Provided that in determining the merit of candidateswho are in service of government/public authority,weightage in the marks may be given by thegovernment/competent authority as an incentive atthe rate of 10% of the marks obtained for each yearof service in remote and/or difficult areas up to themaximum of 30% of the marks obtained in NationalEligibility-cum-Entrance Test, the remote and difficultareas shall be as defined by the State Government/competent authority from time to time.

(V) No candidate who has failed to obtain the minimumeligibility marks as prescribed in clause (II) above shallbe admitted to any postgraduate courses in the saidacademic year.

(VI) In non-governmental medical colleges/institutions, 50%(fifty per cent) of the total seats shall be filled by theFState Government or the Authority appointed by them,and the remaining 50% (fifty per cent) of the seats shallbe filled by the medical colleges/institutions concernedon the basis of the merit list prepared as per the marksobtained in National Eligibility-cum-Entrance Test.

G(VII) 50% of the seats in postgraduate diploma courses shallbe reserved for medical officers in the governmentservice, who have served for at least three years inremote and/or difficult areas. After acquiring the PGdiploma, the medical officers shall serve for two moreyears in remote and/or difficult areas as defined by StateHGovernment/competent authority from time to time.

(VIII) The Universities and other authorities concerned shallorganise admission process in such way that teachingin postgraduate courses starts by 2nd May and by 1stAugust for super speciality courses each year. For thispurpose, they shall follow the time schedule indicatedin Appendix III.

(IX) There shall be no admission of students in respect ofany academic session beyond 31st May for postgraduatecourses and 30th September for super speciality coursesunder any circumstances. The universities shall notregister any student admitted beyond the said date.

(X) The MCI may direct, that any student identified ashaving obtained admission after the last date for closureof admission be discharged from the course of study,or any medical qualification granted to such studentshall not be recognised qualification for the purposeof the Indian Medical Council Act, 1956. The institutionwhich grants admission to any student after the last datespecified for the same shall also be liable to face suchaction as may be prescribed by MCI including surrenderof seats equivalent to the extent of such admission madefrom its sanctioned intake capacity for the succeedingacademic year.”

11.2 Regulations, 2000 are framed by the MCI in exercise of itspowers conferred under Section 33 of the Indian Medical Council Act,1956. The Indian Medical Council Act, 1956 has been enacted/passedby the Union in exercise of powers conferred under Entry 66, List I.Therefore, the main source of power of the MCI would be from Entry66 List I. As per Section 33 of the MCI Act, the Council may with theprevious sanction of the Central Government make regulations generallyto carry out the purpose of the said Act. Therefore, in exercise ofpowers under Section 33 of the MCI Act, Regulations 2000 are madeby the MCI. As observed hereinabove, the MCI draws the power fromEntry 66 List I. As observed hereinabove, Entry 66 List I is specificentry having very specific and limited scope which deals with“Coordination and Determination of Standards” of higher education forresearch as well as scientific and technical institutions. In fact, such“Coordination and Determination of Standards”, insofar as medical

Aeducation is concerned, is achieved by parliamentary legislation in theform of Indian Medical Council Act, 1956 and by creating the statutorybody like MCI. The functions that are assigned to MCI include withinits sweep “Determination of Standards” in medical institution as wellas “Coordination of Standards” and that of educational institutions. Asdiscussed hereinabove, when it comes to regulating “education” as such,Bwhich includes even medical education as well as universities, that isprescribed in List III, Entry 25.11.3 If one considers the Statement of Objects and Reasons ofthe Indian Medical Council Act, 1956, it cannot be said that the MedicalCouncil of India would have any authority or jurisdiction to frame anyCregulations with respect to reservation and/or making special provisionlike providing for separate source of entry for in-service candidatesseeking admission to postgraduate degree courses. Regulations, 2000have been made in exercise of powers under Section 33 of the MCIAct. Section 33 of the MCI Act reads as under:

“33. Power to make Regulations.The Council may, with theprevious sanction of the Central Government, make regulationsgenerally to carry out the purposes of this Act, and, withoutprejudice to the generality of this power, such regulations mayprovide for—

(a) the management of the property of the Council and themaintenance 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 ofFmembers necessary to constitute quorum;

(c) the resignation of members of the Council;

(d) the powers and duties of the President andVice-President;

(e) the mode of appointment of the Executive Committeeand other Committees, the summoning and holding ofmeetings, and the conduct of business of suchCommittees;

(f) the tenure of office, and the powers and duties of theHRegistrar and other officers and servants of the Council;

(fa) the form of the scheme, the particulars to be givenin such scheme, the manner in which the scheme isto be preferred and the fee payable with the schemeunder clause (b) of sub-section (2) of Section 10-A;

(fb) any other factors under clause (g) of sub-section (7)of Section 10-A;

(fc) the criteria for identifying student who has beengranted medical qualification referred to in theExplanation to sub-section (3) of Section 10-B;

(g) the particulars to be stated, and the proof of qualificationsto be given in applications for registration under this Act;

(h) the fees to be paid on applications and appeals underthis Act;

(i) the appointment, powers, duties and procedure ofmedical inspectors and visitors;

(j) the courses and period of study and of practical trainingto be undertaken, the subjects of examination and thestandards of proficiency therein to be obtained, inUniversities or medical institutions for grant ofrecognised medical qualifications;

(k) the standards of staff, equipment, accommodation,training and other facilities for medical education;

(l) the conduct of professional examinations, qualificationsof examiners and the conditions of admission to suchexaminations;

(m) the standards of professional conduct and etiquette andcode of ethics to be observed by medical practitioners;and

(ma) the modalities for conducting screening tests undersub-section (4-A), and under the proviso to sub-section (4-B), and for issuing eligibility certificateunder sub-section (4-B), of Section 13;

(mb) the designated authority, other languages and themanner of conducting of uniform entrance

Aexamination to all medical educational institutions atthe undergraduate level and postgraduate level;

(n) any matter for which under this Act provision may bemade by regulations.”

On fair reading of entire Section 33 of the MCI Act, it doesBnot confer any authority and/or power to the MCI to frame theregulations with respect to reservation in the medical courses, moreparticularly, to provide for separate source of entry for in-servicecandidates seeking admission to postgraduate degree courses, as soughtto be contended on behalf of the MCI and counsel opposing forCproviding for separate source of entry for in-service candidates.

12. In light of the above observations, we shall consider therelevant provisions of MCI Regulations, 2000, more particularly,Regulation 9. The title of Regulation 9 is “Procedure for selection ofcandidate for postgraduate courses”. Regulation 9(I) provides that thereDshall be single eligibility-cum-entrance examination, namely, NEET.Regulation 9(II) further provides that 3% seats of the annual sanctionedintake capacity shall be filled up by candidates with locomotory disability.Regulation 9(III) provides for the eligibility criteria. It provides that inorder to be eligible for admission to any postgraduate course in aparticular academic year, it shall be necessary for candidate to obtainEminimum of marks at 50[th] percentile in NEET for postgraduate courses.However, in respect of candidates belonging to SC/ST/OBC, theminimum marks shall be at 40[th] percentile. Thus, it can be seen thatRegulation 9(III) can be said to be providing the standards which shallbe within the domain and legislative competence of the Union and theFMCI, in exercise of powers under Entry 66, List I. The first part ofRegulation 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 per applicable lawsprevailing in States/Union Territories. It further provides forpreparing all-India merit list as well as State-wise merit list of the eligibleGcandidates on the basis of the marks obtained in NEET and candidatesshall be admitted to postgraduate courses from the said merit lists only.To that stage, it can be said that the same is within the legislativecompetence of the Union/MCI, in exercise of powers under Entry 66List I.

However, proviso to Regulation 9(IV) further provides that indetermining the merit of candidates who are in service of Government/public authority, weightage in the marks may be given by theGovernment/competent authority as an incentive at the rate of 10% ofthe marks obtained for each year of service in remote and/or difficultareas up to the maximum of 30% of the marks obtained in NEET. Itfurther provides that the remote and difficult areas shall be as definedby 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 topreparing the merit list only.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 theprevailing laws in the States. If that be so, then the proviso which assuch is not dealing with the reservation cannot be said to be in the formof an exception to first part of Regulation 9(IV) and it can be seenthat it is an independent provision dealing with the in-service candidatesand that too for the purpose of preparing the merit list. Thus, the provisobecomes the substantive provision and is more concerned with themarks to be allocated which is the concern of Regulation 9(III). It isalso required to be noted that even this proviso confers discretion onthe State to provide for weightage in marks for the services renderedin remote or difficult areas. The proviso only enables the States byconferring the discretion for weightage. The proviso has nothing to dowith the reservation in the postgraduate degree courses and thereforeit shall not negate the State’s power to make reservation and/or makespecial provision to provide for separate source of entry for in-servicecandidates seeking admission to postgraduate degree courses. Thus,Regulation 9(IV) as such cannot be said to be taking away the powerof the States under Entry 25, List III, to provide for separate sourceof entry for in-service candidates seeking admission to postgraduatedegree courses. Any contrary view would affect the right of the Statesto make reservation and/or to make special provision for admission inexercise of powers under Entry 25 List III. If it is construed thatRegulation 9 of the MCI Regulations, 2000, more particularly Regulation9(IV) provides for reservation and/or deals with the reservation for in-service candidates, in that case, it will be beyond the legislativecompetence of the Union as well as it will be ultra vires to the IndianMedical Council Act, 1956. As observed hereinabove, Section 33 ofthe Indian Medical Council Act, 1956 does not confer any power on

Athe MCI to make regulations with respect to reservation. At the costof repetition, it is observed that “institutional preference”, despite MCIRegulations, 2000, has been upheld and held to be permissible by theconcerned States.

13. The sum and substance of the above discussion would be

Bthat,

1) that Entry 66 List I is specific entry having verylimited scope;

2) it deals with “coordination and determination ofstandards” in higher education;

3) the words “coordination and determination ofstandards would mean laying down the saidstandards;

4) the Medical Council of India which has beenDconstituted under the provisions of the IndianMedical Council Act, 1956 is the creature of thestatute in exercise of powers under Entry 66 ListI and has no power to make any provision forreservation, more particularly, for in-servicecandidates by the concerned States, in exercise ofEpowers under Entry 25 List III;

5) that Regulation 9 of MCI Regulations, 2000 doesnot deal with and/or make provisions forreservation and/or affect the legislativecompetence and authority of the concerned Statesto make reservation and/or make special provisionlike the provision providing for separate sourceof entry for in-service candidates seekingadmission to postgraduate degree courses andtherefore the concerned States to be within theirauthority and/or legislative competence to providefor separate source of entry for in-servicecandidates seeking admission to postgraduatedegree courses in exercise of powers under Entry25 of List III; and

6) if it is held that Regulation 9, more particularly,Regulation 9(IV) deals with reservation for in-service candidates, in that case, it will be ultravires of the Indian Medical Council Act, 1956 andit will be beyond the legislative competence underEntry 66 List I.

14. Now so far as the law for in-service candidates and theobject and purpose to provide reservation and/or to make specialprovision for admission for in-service candidates is concerned, fewdecisions of this Court are required to be considered.

14.1 In the case of K. Duraisamy (supra), the Court wasconsidering the following provisions of the Government Order dated9.2.1999 issued by the State of Tamil Nadu:

“7. xxxxxxxxx

“1. (iii) (a) The reservation will be confined to and kept at 50%in favour of the in-service candidates on merit basis.

(b) 50% of the seats available in each of the specialities shallbe allotted exclusively to the service candidates.

(c) If sufficient number of eligible service candidates are notavailable for the seats reserved exclusively for them, suchvacancies shall be filled up by the non-service candidates fromthe merit list/waiting list in the respective reserved compartments.If vacancies exist even after this, such vacancies shall be filledup applying the order of preference indicated in the prospectus.

(d) The following categories of Medical Officers only will betreated as service candidates and considered for selection against50% of seats allocated exclusively for service candidates:

(1) All Medical Officers selected by the TNPSC andappointed in the Tamil Nadu Medical Services onregular basis, who have put in minimum of 2 years’continuous service as on 1-2-1999.

(2) Medical Officers (or) Health Officers in the PublicHealth Department who have been selected by theTNPSC and working under the control of DPH and PMand who apply for Public Health course i.e. diploma in

Public Health can be considered as service candidatesfor DPH as the above qualification namely diploma inPublic Health is essential for declaration of probation.However, to consider under service quota for MD(SPM), the candidates must have completed 2 years ofservice like the other postgraduate courses.

(3) Medical Officers who have put in 2 years of continuousservice and who are working in:

(i) Local bodies/municipalities in Tamil Nadu.

(ii) Government of India institutions in Tamil Nadu.

(iii) Public sector undertaking and organisation under thecontrol of the Government of India in Tamil Nadu.

(iv) Undertakings and organisations of the Governmentof Tamil Nadu. These Medical Officers shouldDproduce bona fide certificates from the authoritiesconcerned with the declaration to serve in therespective institutions for minimum period of 5years after completion of the course.

In that case, the Government of Tamil Nadu issued G.O dated9.2.1999 laying down the procedure for selection of candidates forEadmission to postgraduate diploma, degree, MDS and higher specialitycourses. The Government Order envisaged reservation confining up to50% in favour of the in-service candidates on merit basis and furtherstipulated that 50% of the seats available in each of the speciality shallbe allotted exclusively to the service candidates. The Government OrderFalso enumerated various categories of Medical Officers, who alone willbe treated as in-service candidates and considered for selection againstthe 50% of the seats allocated exclusively for service candidates. Theaforesaid Government Order was challenged before the High Court.The learned Single Judge, while allowing the writ petitions held thatreservation of 50% of seats for non-service candidates have to be givenGeffect to or worked out by selecting candidates from in-service andnon-service, on the basis of merit in the first instance and thereafterthe 50% seats reserved for in-service candidates shall be filled up bythe in-service candidates who could not gain selection on the basis ofmerit as against the other 50% earmarked as “open”. The learned SingleHJudge was further of the view that there is no category as “non-service

candidates”, and it is only the in-service candidates who form aseparate class. Aggrieved, some of the selected candidates filed writappeals, which came to be dismissed summarily. The appeals filed bythe State came up subsequently before another Division Bench andfinding themselves unable to agree with the order of dismissal of theearlier appeals, the matters were referred for consideration by largerBench. Thereupon the matters were placed before the Full Bench,which, in turn, reversed the judgment of the learned Single Judge anddismissed the writ petitions. The judgment of the Full Bench was thesubject matter before this Court. While considering the aforesaidprovisions, this Court answered the question, namely, “could the StateGovernment have legitimately made provision allocating 50% of seatsexclusively in favour of in-service candidates and keep open the avenuefor competition for them in respect of the remaining 50% along withothers”, in affirmative. In paragraphs 8 to 12, it is held as under:

“8. That the Government possesses the right and authority todecide from what sources the admissions in educationalinstitutions or to particular disciplines and courses therein haveto be made and that too in what proportion, is well establishedand by now proposition well settled, too. It has been theconsistent and authoritatively-settled view of this Court that atthe super-speciality level, in particular, and even at thepostgraduate level reservations of the kind known as “protectivediscrimination” in favour of those considered to be backwardshould be avoided as being not permissible. Reservation, even ifit be claimed to be so in this case, for and in favour of the in-service candidates, cannot be equated or treated on par withcommunal reservations envisaged under Articles 15(4) or 16(4)and extended the special mechanics of their implementation toensure such reservations to be the minimum by not counting thoseselected in open competition on the basis of their own merit asagainst the quota reserved on communal considerations.9. Properly speaking, in these cases, we are concerned with theallocation of seats for admission in the form of quota amongstin-service candidates on the one hand, and non-service or privatecandidates on the other and the method or manner of workingout in practice the allocation of seats among the members of therespective category. Could the State Government havelegitimately made provision allocating 50% of seats exclusively

in favour of the in-service candidates and keep open the avenuefor competition for them in respect of the remaining 50% alongwith others, denying fair contest in relation to substantial orsizeable number of other candidates, who are not in service andwho fall under the category of non-service candidates, will itselfbe open to serious doubt. One such attempt seems to have beenput in issue before the Madras High Court which held thatreservation in favour of the in-service candidates for the academicyear 1992-93 should be confined to 50% and awarding of twoadditional marks, instead of one additional mark for eachcompleted year of service in primary health centres wasunconstitutional 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 shouldappoint highly-qualified committee to determine from year toyear what, in fact, should be the percentage-wise reservationrequired for the in-service candidates, having regard to the thenprevailing situation and that the percentage of fifty per cent shall,if found appropriate, be reduced.

10. The stipulations governing the selection for admissions inthese cases have got to be viewed and construed in the abovebackdrop of events and legal position. The learned Single Judge,in our view, was certainly not right in equating the provisionsmade for allocation of seats in the form of fixation of quota inthis case with the usual form of communal reservations andallowing himself to be carried away by the peculiar method ofworking out such reservations in order to ensure adequaterepresentation to such candidates, and applying those principlesto construe provision of the nature involved in these cases. Yetanother error in the reasoning of the learned Single Judge lies inhis assumption that “open quota” seats have to be thrown opento all and are meant only to be filled up purely on the basis ofmerit performance and no one from even the class of candidatesin whose favour special quota has already been provided canbe excluded from consideration as against the “open quota”. Thisreasoning of the learned Single Judge not only ignores the objectand scheme underlying the allocation of seats for admissions for

the academic year 1999-2000, but has the consequence ofrewriting the prospectus and introducing altogether differentpattern of admissions, overriding the policy of the Governmentaimed at meeting out equal justice and affording equality ofopportunity to the different categories classified for the purpose.If the Government can be said to possess the power to fix aquota for the exclusive benefit of “in-service” candidates, it isbeyond comprehension or dictates of either reason or logic as towhy the Government cannot equally exclusively earmark theremaining seats in favour of “non-service” or private candidates,thereby confining the claims of service candidates to the numberof seats earmarked and allocated to them. As there can be aclassified category of “service candidates”, it is open to theGovernment to make classification of all those other than thosefalling in the category of service candidates as non-servicecandidates and allocate the remaining seats after allotment to theservice candidates for exclusive benefit of the source of non-service or private candidates. There is nothing in law whichdeprives the Government of any such powers and no suchimpediment has either been brought to our notice at the time ofhearing or seems to have been brought to the notice of thelearned Single Judge to warrant any such construction, as hasbeen adopted by him. We are also of the view that it does notlie in the mouth of the writ petitioners to raise bogey of selectionbased on merit alone, only in respect of portion of the seatsavailable for admission to non-service candidates, when theybelong to and are part of category or class who have got intheir favour fifty per cent of the number of seats in each of thedisciplines allocated to their category of “in-service” candidatesto be filled up exclusively from such “in-service” candidates onthe basis of their own inter se merit and not on the overall meritperformance of all the candidates — both in-service and non-service put together. The writ petitioners are found to haveapplied as in-service candidates and merely because they couldnot be selected within the number of seats earmarked for theircategory or class on the basis of the inter se merits among theirown class, they cannot be allowed to contend to the contrary inretrospect and on hindsight experience of having obtained moremarks, than those who got selected as against the seats

ABC

DEF

earmarked and allocated to the non-service candidates. Thejustification, both in law and on facts for exclusive allocation andstipulation of definite quota or number of seats for non-serviceor private candidates, in our view, lies in the very principle whichwarranted or enabled the fixation of quota of fifty per cent ofseats and exclusively allotted to the in-service candidates. Anycountenance of such claims of the appellants is likely to alsoendanger the very allocation of 50% of the seats exclusively tothe category of in-service candidates, too.

11. On consideration of the reasoning of the Full Bench as alsothe construction placed upon the Government Order and theprospectus, we are of the view that the State Government, inthe undoubted exercise of its power, has rightly decided, as amatter of policy, so far as the admissions to super-speciality-and-postgraduate diploma/degree/MDS courses for the academicsession 1999-2000 are concerned to have scheme or pattern oftwo sources of candidates based upon broad classification into

two categories, i.e., in-service candidates and non-service orprivate candidates with each one of them allocated exclusivelyfor their own respective category of candidates fifty per cent ofthe seats, the ultimate selection for admission depending uponthe inter se merit performance amongst their own category ofcandidates. As pointed out by the Full Bench, the change in thenomenclature of the categorisation from “open competition” in1998-1999, to “open quota” in 1999-2000 and the conspicuousomission in the scheme and the prospectus for 1999-2000 of aspecific stipulation like the one contained in clause X (5) in theprospectus for 1998-1999 that the 50% of the seats available foropen competition shall be made available for selection andadmission of both service and non-service candidates, as also thestipulation contained in the Government Order and the prospectusfor 1999-2000 under the caption “Criteria for selection under 50%open quota”, which specifically reads that all other eligibleMedical Officers except those specified in clause (iii)(d) above(meaning thereby Medical Officers who will be treated as servicecandidates and allowed to apply as such) are eligible to applyunder 50% of the open quota, supports the stand of the StateGovernment and the Selection Committee and justifies theselections for admission already made by them. The further

stipulation that the reservation will be confined to and kept at50% in favour of the in-service candidates on merit basis, coupledwith the other provisions noticed above make it abundantly clearthat the selection of the in-service candidates is confined to andhas to be kept at 50% only of the total seats and not against anyof the other seats, exclusively earmarked for the non-service orprivate candidates.

12. The mere use of the word “reservation” per se does not havethe consequence of ipso facto applying the entire mechanismunderlying the constitutional concept of protective reservationspecially designed for the advancement of any socially-and-educationally-backward classes of citizens or for the ScheduledCastes and the Scheduled Tribes, to enable them to enter andadequately represent in various fields. The meaning, content andpurport of that expression will necessarily depend upon thepurpose and object with which it is used. Since reservation hasdiverse natures and may be brought about in diverse ways withvaried purposes and manifold objects, the peculiar principles ofinterpretation laid down by the courts for implementingreservations envisaged under the Constitution in order to ensureadequate and effective representation to the backward classesas whole cannot be readily applied out of context and unmindfulof the purpose of reservations as the one made in this case, moreto safeguard the interest of candidates who were already inservice to enable such in-service candidates to acquire higherand advanced education in specialised fields to improve theirprofessional talents for the benefit of the patients to be treatedin such medical institutions where the in-service candidates areexpected to serve. That apart, where the scheme envisaged isnot by way of mere reservation but is one of classification ofthe sources from which admissions have to be accorded, fixationof respective quota for such classified groups, the principles attimes applied in construing provisions relating to reservationsimpliciter will have no relevance or application. Though theprescription of quota may involve in general sense reservationin favour of the particular class or category in whose favour aquota is fixed, the concepts of reservation and fixation of quotadrastically differ in their purport and content as well as the object.Fixation of quota in given case cannot be said to be the same

Aas mere reservation and whenever quota is fixed or providedfor one or more of the classified group or category, the candidatesfalling in or answering the description of different classifiedgroups in whose favour respective quota is fixed have toconfine their respective claims against the quota fixed for eachof such category, with no one in one category having any rightBto stake claim against the quota earmarked for the other classor category. Since we are of the view that the Full Bench hascorrectly come to the conclusion that the scheme adopted forselection of candidates for admissions in question provided for adefinite and fixed quota for the respective classified sources ofCadmission and the reasons assigned therefor do not suffer fromany infirmity whatsoever to call for any interference at our hands,these appeals fail and are dismissed.”

(emphasis supplied)

14.2 The question with respect to reservation for in-serviceDcandidates in medical colleges – post graduate courses again fell forconsideration before this Court in the case of Gopal D. Tirthani(supra). In the aforesaid case, the State of Madhya Pradesh, whilemaking the Madhya Pradesh Medical and Dental PG EntranceExamination Rules, 2002, provided for reservation of 20% seats in PGEdegree/diploma courses for employees of the Government of MadhyaPradesh (in-service). The Rules further provided that such in-servicecandidates are exempted from pre-PG Entrance Examination and shallbe nominated for doing postgraduation in various degree/diplomacourses as per selection criteria, terms and conditions of employerDepartment. The Rules further provided that selection will be done onFthe basis of the individual cumulative performance at the first, secondand third MBBS examinations if such examinations have been passedfrom the same university. The Rules which were under challenge beforethe High Court further provided that only those candidates who havecompleted five years of service under the Government of MadhyaGPradesh and who are not serving on contractual basis will be eligiblefor selection as candidates who are in-service. The Rules furtherprovided that for the purpose of selection of candidates who are in-service, 40% of the marks as weightage would be given. The High Courtstruck down as ultra vires the PG admission (In-service) Rules, 2002based on the following findings arrived at by it:H

“11.xxxxxxxxxA“(a) There can be reservation for in-service employees forpostgraduate medical courses and reservation made forthe said employees in the 2002 Rules does not sufferfrom any constitutional invalidity.

(b) There has to be common entrance examination foradmission in postgraduate medical courses so as to testthe comparative merit.

(c) The ‘In-Service Rules’ which provide for separate andlimited examination for in-service candidates contraveneCthe basic tenet and principle enunciated in theRegulations framed by the Medical Council of India and,therefore, the same are ultra vires.

(d) Conferral of benefit by grant of weightage to somein-service candidates/employees on the basis of theirrendering services in rural areas is hit by Article 14 ofthe Constitution as well as stands in oppugnation to theRegulations framed by the Medical Council of India andhence, is invalid and is liable to be struck down.

(e) The distinction made between the in-service womenemployees/women candidates who have served in ruralareas for three years and other women candidates whohave rendered service in other areas is discriminatory.

(f) The stance put forth by some of the petitioners that therehas to be some reservation for the category ofemployees who are Assistant Surgeons from amongstthe quota meant for ‘in-service candidates’ is devoid ofany substance and hence, deserves rejection.

(g) The limited and separate examination which has alreadybeen held cannot be given the stamp of approvalbecause we have already held that In-ServiceGCandidates Rules, 2002 are unconstitutional.” In substance, the High Court upheld the validity of reservationof 20% seats out of the total in favour of in-service candidates.It held that the in-service candidates and open categorycandidates had to be subjected to one common entrance test forH

12. In substance, the High Court upheld the validity of reservationof 20% seats out of the total in favour of in-service candidates.It held that the in-service candidates and open categorycandidates had to be subjected to one common entrance test for

determining the comparative merit for entrance into thepostgraduate courses of study, and that the holding of twoseparate tests — one for in-service candidates and one for opencategory candidates — was unsustainable, being in contraventionof the Regulations framed by the Medical Council of India….”

(emphasis supplied)

Having noted the laudable purpose sought to be achieved bymaking special provisions for in-service candidates and having noted,in-service candidates on attaining higher academic achievements wouldbe available to be posted in rural areas by the State Government, thisCCourt upheld the Rules providing reservation for in-service candidatesin PG courses. The relevant observations are in paragraphs 19 to 21,which read as under:

“19. The controversy in the present litigation does not concernthe open category candidates; it is confined to the in-servicecandidates. We, therefore, propose to preface our discussion bydetermining the nature of 20% seats allocated to the in-servicecandidates — whether it is by way of reservation or quota or isa channel of entry. Our task stands simplified by the law laiddown by three-Judge Bench decision of this Court recentlyin K. Duraisamy v. State of T.N. [(2001) 2 SCC 538] Thequestion arose for decision in almost similar factual background.The seats were at the State level and not all-India quota seats.The State Government had allocated 50% of the seats exclusivelyfor in-service candidates and left the remaining 50% seats asopen quota i.e. to be filled in from out of such candidates as werenot in State Government service. The classification was madeas “service quota” and “open quota”, for in-service candidatesand other candidates respectively, confining the respective class/cadre candidates to the respective percentages earmarked forthe two of them exclusively. The Court held:

(i) the Government possesses the right and authority todecide from what sources the admissions in educationalinstitutions or to particular disciplines and courses thereinhave to be made and that too in what proportion;

(ii) that such allocation of seats in the form of fixation ofquota is not to be equated with the usual form of

communal reservation and, therefore, the constitutionaland legal considerations relevant to communalreservations are out of place while deciding the casebased on such allocation of seats;

(iii) that such exclusive allocation and stipulation of definitequota or number of seats between in-service and non-service or private candidates provided two separatechannels of entry and candidate belonging to oneexclusive quota cannot claim to steal march intoanother exclusive quota by advancing claim based onmerit. Inter se merit of the candidates in each quota shallbe determined based on the merit performance of thecandidates belonging to that quota;

(iv) that the mere use of the word “reservation” per se isnot decisive of the nature of allocation. Whether it is areservation or an allocation of seats for the purpose ofproviding two separate and exclusive sources of entrywould depend on the purpose and object with which theexpression has been used and that would bedeterminative of the meaning, content and purport of theexpression. Where the scheme envisages not merereservation but is one for classification of the sourcesfrom which admissions are to be accorded, fixation ofrespective quota for such classified groups does notattract applicability of considerations relevant toreservation simpliciter.20. K. Duraisamy case [(2001) 2 SCC 538] was considered andexplained by another three-Judge Bench of this Court in AIIMSStudents’ Union v. AIIMS [(2002) 1 SCC 428] . The followingobservation is appropriate and apposite for the purpose of thecase at hand and is, therefore, extracted and reproducedhereunder. The Court was considering the question of allocationof seats between in-service and open category candidates, thecandidates in both the categories being medical graduates, andnot reservation in favour of the weaker sections of society orthose who deserve or need to be affirmatively discriminated. TheCourt then said: (SCC pp. 447-48, para 31)

“Some of them had done graduation sometime in the past andwere either picked up in the government service or had soughtfor joining government service because, maybe, they could notget seat in postgraduation and thereby continue their studiesbecause of shortage of seats in higher level of studies. Onaccount of their having remained occupied with their serviceobligations, they became detached or distanced fromtheoretical studies and therefore could not have done so wellas to effectively compete with fresh medical graduates at thePG entrance examination. Permitting in-service candidates todo postgraduation by opening separate channel foradmittance would enable their continuance in governmentservice after postgraduation which would enrich healthservices of the nation. Candidates in open category havingqualified in postgraduation may not necessarily feel attractedto public services. Providing two sources of entry at thepostgraduation level in certain proportion between in-servicecandidates and other candidates thus achieves the laudableobject of making available better doctors both in public sectorand as private practitioners. The object sought to be achievedis to benefit two segments of the same society by enrichingboth at the end and not so much as to provide protection andencouragement to one at the entry level.”

21. To withstand the test of reasonable classification within themeaning of Article 14 of the Constitution, it is well settled thatthe classification must satisfy the twin tests: (i) it must be foundedon an intelligible differentia which distinguishes persons or thingsplaced in group from those left out or placed not in the group,and (ii) the differentia must have rational relation with theobject sought to be achieved. It is permissible to use territoriesor the nature of the objects or occupations or the like as the basisfor classification. So long as there is nexus between the basisof classification and the object sought to be achieved, theclassification is valid. We have, in the earlier part of the judgment,noted the relevant statistics as made available to us by the learnedAdvocate-General under instructions from Dr Ashok Sharma,Director (Medical Services), Madhya Pradesh, present in theCourt. 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 byspecialists and block medical officers who must be postgraduates.There is nothing wrong in the State Government setting apart adefinite percentage of educational seats at postgraduation levelconsisting of degree and diploma courses exclusively for the in-service candidates. To the extent of the seats so set apart, thereis separate and exclusive source of entry or channel foradmission. It is not reservation. In-service candidates, and thecandidates not in the service of the State Government, are twoclasses based on an intelligible differentia. There is laudablepurpose sought to be achieved. In-service candidates, on attaininghigher academic achievements, would be available to be postedin rural areas by the State Government. It is not that an in-servicecandidate would leave the service merely on account of havingsecured postgraduate degree or diploma though secured byvirtue of being in the service of the State Government. If thereis any misapprehension, the same is allayed by the StateGovernment obtaining bond from such candidates as conditionprecedent to their taking admission that after completing PGdegree/diploma course they would serve the State Governmentfor another five years. Additionally, bank guarantee of rupeesthree lakhs is required to be submitted along with the bond. Thereis, thus, clearly perceptible reasonable nexus between theclassification and the object sought to be achieved.”

(emphasis supplied)

However, this Court has further held that there shall be only onecommon entrance test. In paragraphs 25 to 28, it is held as under:

“25. The eligibility test, called the entrance test or the pre-PGtest, is conducted with dual purposes. Firstly, it is held with theobject of assessing the knowledge and intelligence quotient of acandidate whether he would be able to prosecute postgraduatestudies if allowed an opportunity of doing so; secondly, it is forthe purpose of assessing the merit inter se of the candidateswhich is of vital significance at the counselling when it comes toallotting the successful candidates to different disciplines whereinthe seats are limited and some disciplines are considered to bemore creamy and are more coveted than the others. The conceptof minimum qualifying percentage cannot, therefore, be given

complete go-by. If at all there can be departure, that has to beminimal and that too only by approval of experts in the field ofmedical education, which for the present are available as bodyin the Medical Council of India.

26. The Medical Council of India, for the present, insists, throughits Regulations, on common entrance test being conductedwhereat the minimum qualifying marks would be 50%. The Stateof Madhya Pradesh must comply with the requirements of theRegulations framed by the Medical Council of India and hold acommon entrance test even if there are two separate channelsof entry and allow clearance only to such candidates who securethe minimum qualifying marks as prescribed by the MCIRegulations. If the State has case for making departure fromsuch rule or for carving out an exception in favour of anyclassification then it is for the State to represent to the CentralGovernment and/or the Medical Council of India and make outa case of justification consistently with the afore-quotedobservation of this Court in Dayanand Medical College andHospital case [(2001) 8 SCC 664] .

27. The in-service candidates may have been away fromacademics and theories because of being in service. Still theyneed to be assessed as eligible for entrance in PG. For taking upsuch examination, they must either keep updating themselvesregularly or concentrate on preparatory studies to entranceexaminations but without sacrificing or compromising with theirobligations to the people whom they are meant to serve onaccount of being in State services.

28. Clearly, the State of Madhya Pradesh was not justified inholding and conducting separate entrance test for in-servicecandidates. Nor could it have devised formula by combiningclauses (i) and (iii) of Regulation 9(1) by resorting to clause (iv).Recourse can be had to clause (iii) when there is only oneuniversity. When there is only one university in one State, thestandard of assessment can reasonably be assumed to have beenthe same for assessing the academic merit of the students passingfrom that university. When there are more universities than onein State, the standards of different universities and theirassessment methods cannot obviously be uniform and may differ.

Then it would be futile to assess the comparative merit ofindividual performances by reference to clause (iii). The HighCourt is, therefore, right in forming an opinion that in the Stateof Madhya Pradesh, where five universities exist, the method ofevaluation contemplated by clause (iii) is not available either insubstitution of or in addition to clause (i). The candidates qualifiedat the pre-PG or PG entrance test held in common for in-serviceand open category candidates, would then be divided into twoseparate merit lists to be prepared for the two categories andmerit inter se of the successful candidates shall be available tobe assessed separately in the two respective categories.”

C(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% seatsin post-graduation in the universities of Madhya Pradeshfor in-service candidates is not reservation; it is aseparate and exclusive channel of entry or source ofadmission, the validity whereof cannot be determined onthe constitutional principles applicable to communalreservations. Such two channels of entry or two sourcesof admission is valid provision.

2. There can be only one common entrance test fordetermining eligibility for postgraduation for in-servicecandidates and those not in service. The requirementof minimum qualifying marks cannot be lowered orrelaxed contrary to the Medical Council of IndiaRegulations framed in this behalf.

3. In the State of Madhya Pradesh there are fiveuniversities i.e. there are universities more than one.Regulation 9(2)(iii) cannot be made use of in the Stateof Madhya Pradesh either singly or in combination withclause (i) for determining the eligibility for entrance intoPG courses.

4. It is permissible to assign reasonable weightage toservices rendered in rural/tribal areas by the in-service

candidates for the purpose of determining inter se meritwithin the class of in-service candidates who havequalified in the pre-PG test by securing the minimumqualifying marks as prescribed by the Medical Councilof India.

(emphasis supplied)

14.3 The question with respect to reservation and/or specialprovisions for admission to PG courses with respect to in-servicecandidates again fell for consideration before this Court in the case ofSudhir N (supra). In the said decision, this Court also consideredCRegulation 9 of the MCI Regulations, 2000, which provided that generalcategory candidates must secure 50% marks in the common entranceexamination. In the aforesaid case of Sudhir N (supra), 40% of theseats available in the State of Kerala for postgraduate medical admissionwere reserved for in-service doctors serving in the Health ServiceDepartment, Medical College Lecturers and doctors serving in the ESIDdepartment of the State. However, it was further provided that theadmission shall be made strictly on the basis of inter se seniority of thein-service candidates who have appeared in the common entranceexamination for the postgraduate medical admission and have obtainedthe minimum eligibility benchmark in the test in terms of the RegulationsEframed by the MCI. Writ petitions were filed before the High Courton the ground that the State legislature could not enact law that wouldmake selection for admission to the PG courses dependent solely onthe seniority of the in-service candidates without prescribing theminimum conditions of eligibility for the candidates concerned. The HighCourt in principle agreed that the admission to PG courses should beFmade only on the basis of inter se seniority provided the candidatesappear in the common entrance examination and qualify.

After considering various decisions of this Court, ultimately, thisCourt upheld the decision of the High Court that inasmuch as theprovision of Section 5(4) of the 2008 Act which provides for selectionGof 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 in-service candidates afterconsidering the decision of this Court in the case of Gopal D. Tirthani(supra) holding that in-service candidates to be treated as separateHchannel for admission to postgraduate courses within that category.

Also, admission can be granted only on the basis of merit. It is to benoted that in the said decision, this Court observed that Regulation 9 ofthe Regulations 2000 is complete code by itself. However, the saidobservation can be said to be confined to the controversy before theCourt and the reference which was made shall be considered and dealtwith hereinbelow at an appropriate stage.

Thus, making special provision for in-service candidates and theprovisions for providing reservation for in-service candidates inpostgraduate medical courses have been upheld and approved by thisCourt 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 theextent of 10% of the marks obtained by the candidates in the competitiontest and to the extent of maximum 30% marks, this Court has inparagraph 44 has observed as under:

“44. Dealing with this contention, we find that the setting in whichthe proviso to clause (IV) has been inserted is of some relevance.The State Governments across the country are not in positionto provide healthcare facilities in remote and difficult areas inthe State for want of doctors. [Rural Health Statistics for 2014-2015 published by the Government of India, Ministry of Health& Family Welfare depicting the shortage of doctors in rural areasparticularly State of Uttar Pradesh, which reads thus:

In fact there is proposal to make one-year service for MBBSstudents to apply for admission to postgraduate courses, in remoteand difficult areas as compulsory. That is kept on hold, as wasstated before the Rajya Sabha. The provision in the form ofgranting weightage of marks, therefore, was to give incentive tothe in-service candidates and to attract more graduates to joinas medical officers in the State healthcare sector. The provisionwas first inserted in 2012. To determine the academic merit of

Acandidates, merely securing high marks in NEET is not enough.The academic merit of the candidate must also reckon theservices rendered for the common or public good. Having servedin rural and difficult areas of the State for one year or above,the incumbent having sacrificed his career by rendering servicesfor providing healthcare facilities in rural areas, deserve incentiveBmarks to be reckoned for determining merit. Notably, the StateGovernment is posited with the discretion to notify areas in thegiven State to be remote, tribal or difficult areas. That declarationis made on the basis of decision taken at the highest level; andis applicable for all the beneficial schemes of the State for suchCareas and not limited to the matter of admissions to postgraduatemedical courses. Not even one instance has been brought to ournotice to show that some areas which are not remote or difficultareas has been so notified. Suffice it to observe that the merehypothesis that the State Government may take an improperdecision whilst notifying the area as remote and difficult, cannotDbe the basis to hold that Regulation 9 and in particular proviso toclause (IV) is unreasonable. Considering the above, theinescapable conclusion is that the procedure evolved inRegulation 9 in general and the proviso to clause (IV) inparticular is just, proper and reasonable and also fulfils the testEof Article 14 of the Constitution, being in larger public interest.”

(emphasis supplied)

15. The object and purpose of providing separate source ofadmission for in-service candidates is noted by this Court in the casesof K. Duraisamy (supra); Gopal D. Tirthani (supra); and Sudhir NF(supra). Even the same is noted by this Court in the case of DineshSingh Chauhan (supra) while upholding the reservation for in-servicedoctors in postgraduate diploma courses. It has been consistently heldby this Court that there is legitimate and rational basis in providing aseparate channel/source of entry for in-service candidates in order toGencourage them to offer their services and expertise to the State. Thereis sufficient nexus with the larger goal of equalization of educationalopportunities and to sufficiently prefer the doctors serving in the varioushospitals run and maintained out of public funds, in the absence of whichthere would be serious dearth of qualified Post-graduate doctors tomeet the requirements of the common public. It is stated that theH

Government is facing public health crisis. The effective and competentmedical treatment is not available in the rural and difficult areas. In-service doctors who pursue higher studies would naturally serve in ruraland difficult areas if such incentive in the form of reservation isprovided.

15.1 The action of the State to provide for the in-service quotais in the discharge of its positive constitutional obligations to promoteand provide better health care facilities for its citizens by upgrading thequalifications of the existing in-service doctors so that the citizens mayget more specialized health care facility. Such action is in discharge ofits constitutional obligations as provided in Article 47 of the Constitutionof India, which is the corresponding fundamental right of the citizensprotected under Article 21 of the Constitution of India.

15.2 It is settled law that Article 21 of the Constitution of Indiaconfers on the citizens of India fundamental right to life and personalliberty. Right to health is integral part of the Right to life and is facetof Article 21. In the case of Devika Biswas v. Union of India[22], afterconsidering its earlier decisions in the case of CESC Ltd. v. SubhashChandra Bose[23] and in the case of Paschim Banga Khet MazdoorSamity v. State of West Bengal[24], it is observed in paras 107, 108 and109 as under:

“107. It is well established that the right to life under Article 21of the Constitution includes the right to lead dignified andmeaningful life and the right to health is an integral facet of thisright. In CESC Ltd. v. Subhash Chandra Bose (1992) 1 SCC 441dealing with the right to health of workers, it was noted that theright to health must be considered an aspect of social justiceinformed by not only Article 21 of the Constitution, but also theDirective Principles of State Policy and international covenantsto which India is party. Similarly, the bare minimum obligationsof the State to ensure the preservation of the right to life andhealth were enunciated in Paschim Banga Khet Mazdoor Samityv. State of W.B. (1996) 4 SCC 37.

22 (2016) 10 SCC 726

23 (1992) 1 SCC 441

24 (1996) 4 SCC 37

EFG

A108. In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC161, this Court underlined the obligation of the State to ensurethat the fundamental rights of weaker sections of society are notexploited owing to their position in society.

109. That the right to health is an integral part of the right to lifedoes not need any repetition.”

(emphasis supplied)

15.3 In recent decision in the case of Association of MedicalSuperspeciality Aspirants & Residents v. Union of India[25], it isobserved 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 primaryduty. No doubt the Government is rendering this obligation byopening government hospitals and health centres, but in order tomake it meaningful, it has to be within the reach of its people,as far as possible, to reduce the queue of waiting lists, and itDhas to provide all facilities to employ best of talents and tone upits administration to give effective contribution, which is also theduty 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 hasEa constitutional obligation to provide health facilities (state ofPunjab v. Mohinder Singh Chawla, (1997) 2 SCC 83). Thefundamental right to life which is the most precious human rightand which forms the ark of all other rights must therefore beinterpreted in broad and expansive spirit so as to invest it withFsignificance and vitality which may endure for years to come andenhance the dignity of the individual and the worth of the humanperson. The right to life enshrined in Article 21 cannot berestricted to mere animal existence. It means something muchmore than just physical survival. The right to life includes the rightto live with human dignity and all that goes along with it, namely,Gthe bare necessaries of life such as adequate nutrition, clothingand shelter, and facilities for reading, writing and expressingoneself in diverse forms, freely moving about and mixing andcommingling with fellow human beings.”

(emphasis supplied)

15.4 healthy body is the very foundation for all human activities.In welfare State, therefore, it is the obligation of the State to ensurethe creation and the sustaining of conditions congenial to good health.Maintenance and improvement of public health have to rank high asthese are indispensable to the very physical existence of the communityand on the betterment of these depends the building of the society ofwhich the Constitution makers envisaged. It is observed by this Courtin the case of Vincent Panikurlangara v. Union of India[26] that“attending to public health is of high priority, perhaps the one at thetop”. It is the primary duty of welfare State to ensure that medicalfacilities are adequate and available to provide treatment.

15.5 In the case of CESC Ltd. (supra), this Court has observedand held that right to health is fundamental right. It went further andobserved that health is not merely absence of sickness. The term healthimplies more than an absence of sickness. Medical care and healthfacilities not only protect against sickness but also ensure stablemanpower for economic development. Facilities of health and medicalcare 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[27], this Court through Justice Krishna Iyer observed: “TheState will realize that Article 47 makes it paramount principle ofgovernance that steps are taken for the improvement of public healthas amongst its primary duties.

15.7 Even otherwise, the power of the State under Entry 6, ListII of Schedule VII to legislate in the subject matter of public healthand hospital is exclusive.

15.8 Article 47 of the Constitution reiterates the constitutionalobligation imposed on the State to improve public health. The DirectivePrinciple provides as follows:

“47. Duty of the State to raise the level of nutrition and thestandard of living and to improve public health – The State shallregard the raising of the level of nutrition and the standard ofliving of its people and the improvement of public health as amongits primary duties and, in particular, the State shall endeavour to

26 AIR 1987 SC 990

27 1980 Cri LJ 1075 = 1981 SCR (1) 97 = AIR 1980 SC 1622

Abring about prohibition of the consumption except for medicinalpurposes of intoxicating drinks and of drugs which are injuriousto health.”

15.9 As observed hereinabove, Article 21 of the Constitution ofIndia imposes an obligation on the State to safeguard the life of everyBperson. Preservation of human life is thus of paramount importance.Thus, when the State provides separate source of admission for in-service doctors as distinct class and within the State quota and theobject is laudable, the State is within its power to provide such separatesource 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 withCthe laudable object of meeting the requirement of qualified postgraduatedoctors for the public health services, more particularly, in the rural,tribal and difficult areas. As such, there is no conflict between the powerof the Union and the State. As observed hereinabove, the occupied filedof Union legislation in exercise of power under Entry 66, List I is relatedDto minimum standards of medical education and the State is providingthe in-service quota without impinging the prescribed minimum standards.It is settled proposition of law that in case of two entries might beoverlapping, in that case, the interpretation must be in furtherance ofachieving the ultimate object, in the present case to provide better healthcare in the rural, tribal and difficult areas. Any interpretation whichEwould negate and/or become nugatory the other entry, is to be avoided.There must be harmonious reading between the two entries. In thepresent case, as such and as observed hereinabove, there shall not beany conflict between the power of the Union and the State, whileexercising the powers under Entry 66 List I by the Union and underFEntry 25 List III by the States. Therefore, as such, the State is withinits power and is empowered to make reservation in the seats of thepostgraduate medical courses, more particularly, for in-service doctors.

15.10 In the federal structure, the State, as well as the Parliament,have constitutional directive for the upliftment of Scheduled Castes,GScheduled Tribes, and socially and backward classes. Therefore, theState Government have the right to provide reservation and in the fieldof employment and education, looking to the specific/special need ofpublic requirement in the particular area. There is no constitutional barto take further affirmative action as taken by the State Government inthe cases to achieve the goal. Therefore, by allotting specificHpercentage within its State quota and to provide preferential treatment

to particular class, cannot be said to be beyond the legislativecompetence of the State. On the contrary, as observed hereinabove,the State is within its power and authority to provide such preferentialtreatment to provide better public health in the rural, tribal and hillyareas.

16. It is to be noticed that earlier also the concerned States didprovide reservation for in-service government medical officers/doctorsand the concerned States, as such, achieved the goal of meeting thepublic health services in the rural, tribal and difficult areas. However,because of the misinterpretation of the MCI Regulations, 2000, theproblems have arisen.

17. Even otherwise, Regulation 9 of the MCI Regulations, 2000to the extent not providing for any reservation for in-service candidatesworking in the rural, tribal and difficult areas can be declared ultra vireson the ground of being arbitrary, discriminatory and violative of Articles14 and 21 of the Constitution of India. It is required to be noted thatRegulation 9, more particularly Regulation 9(VII) makes provision forreservation for in-service candidates for admission to postgraduatediploma courses only. However, there is no reason coming out of eitherfrom the Regulations or in any form of material produced by the MCIshowing as to on what basis MCI takes stand that similar in-servicereservation is not permissible for admission to postgraduate degreecourses. Therefore, if the very concept of in-service reservation ispermissible and incorporated in the MCI Regulations, 2000, oppositionto similar reservation for postgraduate degree courses is unreasonableand irrational.

18. Now so far as the observations made by this Court in thecases of Sudhir N (supra) and Dinesh Singh Chauhan (supra) thatthe MCI Regulations, 2000 is complete code is concerned, it is clearthat the observations made by this Court in the case of Sudhir N(supra) that Regulation 9 of the MCI Regulations, 2000 is completecode is required to be considered with reference to the context andcontroversy before the Court.

18.1 In the case of Sudhir N (supra), the State law which wasunder consideration by the Court provided that the seniority list ofselected candidates to be prepared directly based on seniority of in-service doctors, irrespective of marks obtained by such in-service

Acandidates in common PG entrance examination. In that context, thisCourt held that Regulation 9 of MCI Regulations, 2000 is the onlyeffective and permissible basis for granting admission to postgraduatemedical courses and therefore it was observed that Regulation 9 of MCIRegulations, 2000 is complete code. Therefore, the observations inthe case of Sudhir N (supra) that Regulation 9 is complete code inBitself may not be construed with respect to providing reservation and/or making special provision like providing separate source of entry forin-service candidates within the State quota and subject to fulfilling ofother criteria fixed and provided by the MCI. Therefore, the observationsmade by this Court in the case of Dinesh Singh Chauhan (supra)Cand as held by this Court in the case of Sudhir N (supra) thatRegulation 9 is complete code in itself cannot be accepted and is heldto be not good law.19. When we consider the subsequent amendment in the year2018, as made by notification dated 12.07.2018, it is provided that aDmedical college/medical institution shall be entitled to seek equal numberof Post Graduate Degree (MD/MS) seats by surrendering recogniseddiploma seats in corresponding course. In view of the above, it has sohappened that by and large in every State the diploma seats areconverted in PG Degree (MD/MS) seats by surrendering recogniseddiploma seats. The resultant effect is that in-service candidates/doctorsEshall not be entitled to any seat even in PG Diploma courses whichhas been provided under Regulation 9(VII) of MCI Regulations 2000,as amended from time to time. Therefore, ultimately, it will affect thepublic health and the common people in the rural, tribal and hilly areaswhere there is dearth of good and highly qualified doctors. Therefore,Fif the rights of the States to provide such reservation for in-servicedoctors in postgraduate degree/diploma courses is not recognised, inthat case, the ultimate sufferer would be the public health and thecommon people, particularly the people residing in rural, tribal and hillyareas.

GConclusions:

20. The sum and substance of the above discussion and conjointreading of the decisions referred to and discussed hereinabove, ourconclusions are as under:

1) that Entry 66 List I is specific entry having very

limited scope;

2) it deals with “coordination and determination ofstandards” in higher education;

3) the words “coordination and determination ofstandards would mean laying down the saidstandards;

4) the Medical Council of India which has beenconstituted under the provisions of the IndianMedical Council Act, 1956 is the creature of thestatute in exercise of powers under Entry 66 List Iand has no power to make any provision forreservation, more particularly, for in-servicecandidates by the concerned States, in exercise ofpowers under Entry 25 List III;

5) that Regulation 9 of MCI Regulations, 2000 doesDnot deal with and/or make provisions for reservationand/or affect the legislative competence andauthority of the concerned States to make reservationand/or make special provision like the provisionproviding for separate source of entry for in-service candidates seeking admission toEpostgraduate degree courses and therefore theconcerned States to be within their authority and/orlegislative competence to provide for separatesource of entry for in-service candidates seekingadmission to postgraduate degree courses inFexercise 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 in-servicecandidates, in that case, it will be ultra vires of theIndian Medical Council Act, 1956 and it will bebeyond the legislative competence under Entry 66List I.;

7) Regulation 9 of MCI Regulations, 2000 to the extenttinkering with reservation provided by the State forin-service candidates is ultra vires on the ground that

Ait is arbitrary, discriminatory and violative of Articles14 and 21 of the Constitution of India;

8) that the State has the legislative competence and/orauthority to provide for separate source of entryfor in-service candidates seeking admission toBpostgraduate degree/diploma courses, in exercise ofpowers under Entry 25, List III. However, it isobserved that policy must provide that subsequent toobtaining the postgraduate degree by the concernedin-service doctors obtaining entry in degree coursesCthrough such separate channel serve the State in therural, tribal and hilly areas at least for five yearsafter obtaining the degree/diploma and for that theywill execute bonds for such sum the respective Statesmay consider fit and proper; andD9) it is specifically observed and clarified that thepresent decision shall operate prospectively and anyadmissions given earlier taking contrary view shallnot be affected by this judgment.

E27. In view of our above discussions and conclusions, the CivilAppeals are allowed in the aforesaid terms and the impugned judgmentof 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 of2019, MAT 1239/2019, MAT 1245/2019, MAT 1267 of 2019 and MAT1333 of 2019 is hereby set aside. Writ Petition Nos. 196/2018 connectedFwith Writ Petition No.252/2018, Writ Petition No. 295/2018 and WritPetition No. 293/2018 stand allowed in the aforesaid terms. Allconnected interlocutory applications stand disposed of.

Before parting we acknowledge and appreciate the cooperationGby the learned Senior Counsels and other Advocates appearing on behalfof their respective parties and assisting the Court in concluding hearingin such an important matter, through virtual court in time when theentire world is facing pandemic and difficult time. Such gesture andcooperation is highly appreciable.

ANIRUDDHA BOSE, J.

1. Permission to file petition for special leave to appeal is grantedin the matter registered as D-42890/19. Leave granted in all the petitionsfor special leave to appeal.

2. There are altogether seventeen main proceedings which arebefore us, all involving common question of law. That question is asto whether under the scheme of our Constitution and the provisions ofthe 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, State hasany power to reserve seats for admission in postgraduate medical degreecourses for the medical professionals working in governmentalorganisations within that State. Such medical professionals we shall referto henceforth in this judgment as “in-service doctors”. We find that thisis the term commonly used to describe them in medico-administrativeparlance in different parts of the country. Legislations pertaining tomedical education in this country is primarily guided by two entries ofthe Seventh Schedule to the Constitution of India, being Entry 66 ofList I (Union List) and Entry 25 of List III (Concurrent List). Theseentries read:-

“Entry 66 of List I- Co-ordination and determination ofstandards in institutions for higher education or research andscientific and technical institutions.”

“Entry 25 of List III- Education, including technicaleducation, medical education and universities, subject to theprovisions of entries 63, 64, 65 and 66 of List I; vocationaland technical training of labour.”

The conflict between the power of the Union and the State inthis set of cases does not arise out of any primary legislation, butemerges out of subordinate or delegated legislations. The respectiveStates have issued Executive Orders to introduce such reservation. TheStates of Kerala and West Bengal, have, however traced their powerof reservation to certain State legislations and Rules made in that behalf.But these factors are not of much significance for adjudication of thesematters. We shall deal with the subject-controversy applying theestablished principles for resolving disputes arising out of interpretationof statutory instruments in relation to legislative competence of theUnion and the States.

A3. Reference has also been made in course of hearing of thesematters before us to two other entries in the State list for tracing thesource of State’s power to effect such reservation. Entry 6 in the StateList covers “Public Health and Sanitation; hospitals and dispensaries”.Entry 32 of the same List specifies “Incorporation, regulation andwinding up of corporation, other than those specified in List I, andBuniversities, unincorporated trading, literary, scientific, religious and othersocieties and associations; co-operative societies.” Learned counselappearing for some of the parties defending the reservation have soughtto anchor the legislative power of the States to make reservation ofthis nature on these entries as well. But we do not accept thisCsubmission. We are of the view that admission to postgraduate degreecourses in medical education cannot be linked to the subject-headsspecified against the said two entries. The consequence of reservationof 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 entriescannot be linked to any statutory instrument originating from StateDproviding for reservation of in-service doctors in postgraduate medicaldegree courses. We also would like to make it clear here that theexpression “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-Econtroversy is concerned, this expression really implies separate sourceof entry to the postgraduate medical degree courses. We shall explainthis distinction in greater detail later in this judgment.

4. Under the 1956 Act, different Rules and Regulations havebeen made to carry out the purposes of the said statute. Section 10DFthereof mandates common entrance examination both at theundergraduate and postgraduate level. What concerns us in the presentset of proceedings is Clause 9 of the 2000 Regulations which containsprocedures for selection of candidates for postgraduate medical courses.This clause along with its sub-clauses has undergone certainamendments from time to time and has been brought in its present shapeGby way of notification published on 5[th] April, 2018. The said clause,as it stands now, stipulates:-

“9. Procedure for selection of candidate for postgraduate coursesshall be as follows:-

(1) There shall be uniform entrance examination to allmedical educational institutions at the Postgraduate levelnamely ‘National Eligibility-cum-Entrance Test’ foradmission to postgraduate courses in each academicyear and shall be conducted under the overallsupervision of the Ministry of Health & Family Welfare,Government of India.

(2) The “designated authority” to conduct the `NationalEligibility-cum-Entrance Test’ shall be the NationalBoard of Examination or any other body/organization sodesignated by the Ministry of Health and FamilyWelfare, Government of India.

(3) In order to be eligible for admission to PostgraduateCourse for an academic year, it shall be necessary fora candidate to obtain minimum of marks at 50thpercentile in the ‘National Eligibility-Cum-Entrance Testfor Postgraduate courses held for the said academicyear. However, in respect of candidates belonging toScheduled Castes, Scheduled Tribes, and OtherBackward Classes, the minimum marks shall be at 40thpercentile. In respect of candidates with benchmarkdisabilities specified under the Rights of Persons withDisabilities Act, 2016, the minimum marks shall be at45[th] percentile for General Category and 40[th] percentilefor SC/ST/OBC. The percentile shall be determined onthe basis of highest marks secured in the All IndiaCommon merit list in National Eligibility-cum-EntranceTest for Postgraduate courses.Provided when sufficient number of candidates in the respectivecategories fail to secure minimum marks as prescribed in NationalEligibility-cum-Entrance Test held for any academic year foradmission to Postgraduate Courses, the Central Government inconsultation with Medical Council of India may at its discretionlower the minimum marks required for admission to PostGraduate Course for candidates belonging to respective categoriesand marks so lowered by the Central Government shall beapplicable for the academic year only.

(4) The reservation of seats in Medical Colleges/institutionsfor respective categories shall be as per applicable lawsprevailing in States/Union Territories. An all India meritlist as well as State-wise merit list of the eligiblecandidates shall be prepared on the basis of the marksobtained in National Eligibility-cum-Entrance Test andcandidates shall be admitted to Postgraduate Coursesfrom the said merit lists only.

Provided that in determining the merit of candidates who are inservice of government/public authority, weightage in the marksmay be given by the Government/Competent Authority as anincentive upto 10% of the marks obtained for each year ofservice in remote and/or difficult areas or Rural areas uptomaximum of 30% of the marks obtained in National Eligibility-cum Entrance Test. The remote and/or difficult areas or Ruralareas shall be as notified by State Government/Competentauthority from time to time.”

(5) 5% seats of annual sanctioned intake capacity shall befilled up by persons with benchmark disabilities inaccordance with the provisions of the Rights of Personswith Disabilities Act, 2016, based on the merit list ofNational Eligibility-Cum-Entrance Test for admission toPostgraduate Medical Courses.

In order to be eligible for admission to Postgraduate Course foran academic year, it shall be necessary for candidate to obtainminimum of marks at 50th percentile in the ‘National Eligibility-Cum-Entrance Test’ for Postgraduate courses held for the saidacademic year. However, in respect of candidates belonging toScheduled Castes, Scheduled Tribes, and Other BackwardClasses, the minimum marks shall be at 40th percentile. In respectof candidates with benchmark disabilities specified under theRights of Persons with Disabilities Act, 2016, the minimum marksshall be at 45th percentile for General Category and 40thpercentile for SC/ST/OBC.

(6) No candidate who has failed to obtain the minimumeligibility marks as prescribed in Sub-Clause (3) aboveshall be admitted to any Postgraduate courses in the saidacademic year.

(7) In non-Governmental medical colleges/institutions, 50%(Fifty Percent) of the total seats shall be filled by StateGovernment or the Authority appointed by them, and theremaining 50% (Fifty Percent) of the seats shall be filledby the concerned medical colleges/institutions on thebasis of the merit list prepared as per the marks obtainedin National Eligibility-cum-Entrance Test.”

(8) 50% of the seats in Postgraduate Diploma Courses shallbe reserved for Medical Officers in the Governmentservice, who have served for at least three years inremote and /or difficult areas and / or Rural areas. Afteracquiring the Postgraduate Diploma, the MedicalOfficers shall serve for two more years in remote and/or difficult areas and / or Rural areas as defined byState Government/Competent authority from time totime.

(9) The Universities and other authorities concerned shallorganize admission process in such way that teachingin broad speciality postgraduate courses starts by 1stMay and for super speciality courses by 1st August eachyear. For this purpose, they shall follow the time scheduleindicated in Appendix-III.

(10) There shall be no admission of students in respect ofany academic session beyond 31st May for postgraduatecourses and 31st August for super speciality coursesunder any circumstances. The Universities shall notregister any student admitted beyond the said date.

(11) No authority / institution shall admit any candidate toany postgraduate medicine course in contravention ofthe criteria / procedure as laid down by theseRegulations and / or in violation of the judgements passedby the Hon’ble Supreme Court in respect of admissions.Any candidate admitted in contravention / violation ofaforesaid shall be discharged by the Council forthwith.The authority / institution which grants admission to anystudent in contravention / violation of the Regulationsand / or the judgements passed by the Hon’ble SupremeCourt, shall also be liable to face such action as may

be prescribed by the Council, including surrender ofseats equivalent to the extent of such admission madefrom its sanctioned intake capacity for the succeedingacademic year / years.]”

5. The disputes in these matters largely centre around sub-clauseB(4) and (8) of the said clause. The content thereof subsisted in the saidRegulations in the form of sub-clauses (IV) and (VII) of Clause 9 ofthe 2000 Regulations in substantially same form, when the said clausewas earlier amended, by Notification dated 15[th] February, 2012. Sub-clauses (IV) and (VII) of Clause 9 of the 2000 Regulations stood interms of the aforesaid notification as:C

“IV. The reservation of seats in medical colleges/institutions forrespective categories shall be as per applicable laws prevailingin States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on thebasis of the marks obtained in National Eligibility-cum-EntranceDTest and candidates shall be admitted to Post Graduate coursesfrom the said merit lists only.

Provided that in determining the merit of candidates who are inservice of government/public authority, weightage in the marksmay be given by the Government/Competent Authority as anEincentive at the rate of 10% of the marks obtained for each yearof service in remote and/or difficult areas upto the maximum of30% of the marks obtained in National Eligibility-cum-EntranceTest. The remote and difficult areas shall be as defined by StateGovernment/Competent authority from time to time.

VII. 50% of the seats in Post Graduate Diploma Courses shallbe reserved for Medical Officers in the Government Service, whohave served for at least three years in remote and/or difficultareas. After acquiring the PG Diploma, the Medical Officers shallserve for two more years in remote and/or difficult areas asGdefined by State Government/Competent authority from time totime.”

6. There has been another development impacting the prospectsof in-service doctors in pursuing higher educational qualifications. TheMedical Council of India (MCI) has started permitting conversion ofseats in post-graduate diploma course to “degree-seats” from July, 2018.H

So far as the State of Tamil Nadu is concerned, (who are the respondentno.3 in Writ Petition(civil) No. 196 of 2018) of the 545 post-graduatediploma seats, 542 seats have been converted into seats for post-graduate degree courses. This has been brought to our notice by thelearned Senior Counsel for the State of Tamil Nadu, Mr. C.S.Vaidyanathan and Mr. V. Giri. Such conversion, we are apprised, is beingpermitted by virtue of an amendment brought by the MCI to “TheOpening of New or Higher Course of Study or Training(including Post-graduate Course of Study or Training) andIncrease of Admission Capacity in any Course of Study orTraining (including Post-graduate Course of Study or Training)Regulations 2000.” This amendment permits medical colleges orinstitutions to surrender their postgraduate diploma seats to be replacedby postgraduate degree seats. The said amendment was brought aboutby notification No.MCI-18(1)/2018-Med./122294 dated 12[th] 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 havesubsisting provisions for reservation of in-service doctors on the basisof different forms of statutory instruments. In Writ Petition (Civil)No.196 of 2018, in which the petitioners are Tamil Nadu MedicalOfficers’ Association and two in-service doctors of that State who hadappeared in the National Eligibility-cum-Entrance Test (NEET) in theyear 2018 for admission to postgraduate degree course for the academicyear 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 incorporatedin Clause 9 of the 2000 Regulations as sub-clause (8) in substance.This Court has permitted intervention of G.M.S. Class II MedicalOfficers’ Association in this Writ Petition. The latter entity representsin-service doctors of the State of Gujarat. The said Association hadasked for transfer of petition pending in the High Court of Gujarat,registered as SCA No.5773/2019 (GMS Class II Medical OfficersAssociation vs. State of Gujarat & Ors.) to this Court in TransferPetition (Civil)No. 633 of 2020. This Court, by an order passed on 22[nd]June, 2020, considering urgency of the matter, did not considerappropriate to transfer the matter. The petitioner for transfer, however,was permitted to intervene in the matter. Ms. Meenakshi Arora, learned

ASenior Advocate argued for them before us. Their grievances, asoutlined in their application, is over, inter-alia, change in the policy inthe State of Gujarat by effecting reservation for in-service candidatessponsored by the State Government of 50 per cent seats in the diplomacourses only, excluding the degree courses from such reservation orseparate source of entry. This has been done under Rule 6 of theBGujarat Professional Postgraduate Medical Educational Courses(Regulation of Admission) Rules, 2018. These Rules have beenframed under the Gujarat Professional Medical Educational Collegesor Institutions (Regulation of Admission and Fixation of Fees) Act, 2007.Subsequently, all the medical colleges in the State of Gujarat haveCapplied for conversion of their diploma seats into degree courses. Theapplicants contend that such conversion would nullify the effect ofClause 9(8) of the 2000 Regulations. The Association’s concern is thatsuch conversion would further shrink future academic pursuit of thein-service doctors from that State. It appears that the State of Gujarathad provision for 25 per cent reservation for in-service candidates inDpostgraduate degree courses before the MCI brought in the amendedRegulations. The Association seeks invalidation of said Rule 6 as alsodirection upon the State to implement policy of granting incentive marksin terms of proviso to Clause 9(4) of the 2000 Regulations.

8. Reservation for in-service candidates in postgraduate medicalEcourses has been prevalent in various States in different forms for quitesome time now, though the extent of such reservation has varied, fromState to State, year to year. In the State of Maharashtra, reservationof this category of doctors in post-graduate degree seats had beensubsisting since 6[th] January, 1990 on the basis of GovernmentFResolutions, and the reservation percentage stood at 25 per cent onthe basis of Resolution dated 22[nd] February, 1996. This has beenpleaded in Writ Petition(C)No. 295 of 2018. This Writ Petition, as alsoWrit Petition (Civil) No. 293 of 2018 and Writ Petition (Civil) No. 252of 2018 deal with Clause 9 of the 2000 Regulations prior to its

amendment effected on 5[th] April 2018. The petitioner in that proceedingGis State appointed medical officer seeking the benefit of in-servicecandidates’ 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 increasedfrom 27 per cent to 40 per cent with effect from the 2001 session.HThe petitioners being in-service doctors aspiring to undertake post-

graduate degree courses seek declaration to the effect that the Stateretains power to reserve postgraduate degree seats for the in-servicedoctors even after coming into operation of Clause 9(IV) of the 2000Regulations in the form we have already referred to. Their alternativeprayer is for invalidation of sub-clauses (IV) and (VII) of Clause 9 ofthe 2000 Regulations.

9. The State of Kerala had enacted the Kerala MedicalOfficers Admission to Postgraduate Courses under ServiceQuota Act, 2008 for providing reservation in postgraduate courses formedical officers in service of the State Government on prescribed termsand conditions. This Statute empowers the State Government to reserveupto 40 per cent of post-graduate seats for in-service candidates. TheState had policy of reservation of 40 per cent of the seats available inpostgraduate medical admissions for in-service doctors on the basis ofseniority.10. The State of West Bengal framed the West Bengal MedicalEducation Service, the West Bengal Health Service and theWest Bengal Public Health-cum-Administrative Service(Placement on Trainee Reserve) Rules, 2015 under Section 21 ofthe West Bengal State Health Services Act, 1990. Note to Rule 3 thereofconfers power on the State Government to specify the number of seatsin different postgraduate courses which may be available to the in-service doctors. There have been subsequent Executive Orders issuedin this regard. Reservation for the in-service doctors by the StateGovernment was successfully challenged before the High Court bytwentytwo medical graduates appearing from the open category whohad cleared the entrance examination through the Postgraduate NEET,2019 conducted by the National Board of Examination at all India level.Reservation for in-service doctors in West Bengal was being continuedin terms of memorandum bearing no. HF/O/MERT/433//W-43/13dated 18[th] April, 2013. The seats involved were for MD-MS courses,which are postgraduate medical degree courses. In terms of the 2000Regulations, half of the total number of seats had been reserved forAll India quota and the other half had been reserved for the State quota.After the second round of counselling, the vacancies remaining fromthe national quota were reverted back to the State. The complaint ofthe writ petitioners before the High Court was that the State wasseeking to fill up these reverted seats in 60:40 ratio for the open category

Aand in-service candidates. learned Single Judge of the High Courtallowed the writ petition on the ground that such reservation wascontrary to the provisions of the 2000 Regulations. The decision of theFirst Court was affirmed by Division Bench of the High Court.Admission of the in-service doctors to postgraduate degree coursespursuant to reservation of 40 per cent of the State quota seats wasBdirected to be cancelled and fresh merit list was also directed to beprepared. In SLP(C) 26665 of 2019 and 26507-26510, 25487-25490 of2019 and Diary No. 42980 of 2019, the in-service doctors have assailedthe judgment of the Division Bench of the Calcutta High Court. TheState of West Bengal is the appellant-petitioner in SLP(C) Nos. 26448Cof 2019 whereas the Vice Chancellor, West Bengal University of HealthSciences is the appellant-petitioner in SLP(C)No. 26449 of 2019 andSLP(C)No. 26648 of 2019.

11. The main proceeding giving rise to this reference is WritPetition (Civil) No.196 of 2018. Mr. Arvind Datar, learned SeniorDAdvocate 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 writ of mandamus or any othersuitable writ/order/direction that Regulation 9 of the PostGraduate Medical Education Regulations, 2000 (moreEparticularly, Regulation 9 (IV) and 9(VII), does not takeaway the power of the States under Entry 25, List IIIto provide for separate source of entry for in-servicecandidates seeking admission to Degree Courses;

(b) Alternatively, if Regulation 9 of the Post GraduateFMedical Education Regulations, 2000 is understood tonot allow for States to provide for separate source ofentry for in-service candidates seeking admission toDegree Courses, declare, by issuance of writ ofmandamus or any other suitable writ/order/direction,Regulation 9 (more particularly, Regulation 9 (IV) andG9 (VII) as being arbitrary, discriminatory and violativeof Article 14 and Article 19(1)(g)of the Constitution andalso ultra vires the provisions of the Indian MedicalCouncil Act 1956; and

(c) Pass any such further orders/directions which thisHHon’ble Court may deem fit and proper in the interestof 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 UttarPradesh & Ors. vs. Dinesh Singh Chauhan [(2016) 9 SCC 749]had examined the question as to whether having regard to the provisionsof Clause 9 of the 2000 Regulations, State’s power to provide forreservation of in-service candidates in postgraduate medical degreecourses 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 casewas that the effect of Clause 9 of the 2000 Regulations was in effectforfeiture of the power of the States in making provisions for reservationin postgraduate medical degree courses for in-service doctors. This casedealt with Clause 9 of the 2000 Regulations as it stood prior to 5[th] April2018. In Sudhir N.& Ors. vs. State of Kerala & Ors. [(2015) 6SCC 685), Division Bench of this Court has held that Clause 9 ofthe 2000 Regulations is complete code by itself inasmuch as itprescribes the basis for determining the eligibility of candidates includingthe method to be adopted for determining inter-se merit which remainsthe only basis for such admission. In the case of Dinesh SinghChauhan (supra), this view was confirmed by the three-judge Benchof this Court. We must, however, point out here that in the case ofSudhir N. (supra), the question which was addressed was as towhether in-service candidates could be given admission on the basisof 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 itprevailed after the amendment made on 15[th] February 2012), the StateGovernments have been conferred with the power to give weightagein the marks as an incentive of upto 10 per cent of the marks obtainedfor each year of service in remote and the difficult areas. Rural areaswas added to this List on the basis of amendment made on 5[th] April2018. capping of 30 per cent of the marks obtained in the NEET onsuch weightage has been specified in the said proviso. Sub-clause(8)of the present Regulations, which is broadly similar to sub-clause VIIof the same Regulations in its earlier form, thereof permits the StateGovernments to reserve 50 per cent of the seats in postgraduatediploma courses for in-service doctors who have served for at leastthree years in remote and/or difficult areas or rural areas. Thisreservation is subject to further condition that after acquiring apostgraduate diploma the medical officers should serve two more years

Ain remote and/or in difficult areas or rural areas as defined by the StateGovernment or the competent authorities.

14. In the case of Dinesh Singh Chauhan (supra), before theHigh Court at Allahabad, legality of two government orders dated 28[th]February, 2014 and 17[th] April, 2014 was questioned. These ordersBimposed condition of working for three years in rural or difficult areasfor the in-service doctors aspiring for postgraduate study. The State ofUttar Pradesh at the material time had 30 per cent quota for in-servicecandidates in the postgraduate degree courses as well. The High Courtheld that the admission process specified in Clause 9 of 2000 Regulationsshould be strictly adhered to. The finding of the High Court, asCsummarised in the judgment of Dinesh Singh Chauhan (supra), was:-“6. The High Court whilst adverting to the decisions of this Courtincluding the recent judgment in Sudhir N. v. State of Kerala[(2015) 6 SCC 685 : (2015) 2 SCC (L&S) 323] held thatRegulation 9 is complete code and the admission process mustDstrictly adhere to the norms stipulated therein. It, thus, proceededto quash the Government Notification-cum-Government Orderdated 28-2-2014 and directed that admissions to postgraduate“degree” courses be proceeded strictly on merits amongst thecandidates who have obtained requisite minimum marks in theEcommon entrance examination in question. It also noted that asper Regulation 9, at best, the in-service candidates who haveworked in remote and difficult areas in the State, as notified bythe 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 areasFup to the maximum of 30% marks obtained in National Eligibility-cum-Entrance Test.”

15. In the aforesaid decision, the three-judge Bench of this Courtproceeded on the basis that the procedure for admission to postgraduatecourses falls within Entry 66 of List I to the Seventh Schedule of theGConstitution of India. It was, inter-alia, held in this judgment:-

“24. By now, it is well established that Regulation 9 is aself-contained code regarding the procedure to be followed foradmissions to medical courses. It is also well established that theState has no authority to enact any law much less by executive

instructions that may undermine the procedure for admission topostgraduate medical courses enunciated by the Centrallegislation and regulations framed thereunder, being subjectfalling within Schedule VII List I Entry 66 of the Constitution(see Preeti Srivastava v. State of M.P.). The procedure forselection of candidates for the postgraduate degree courses isone such area on which the Central legislation and regulationsmust prevail.

25. Thus, we must first ascertain whether Regulation 9, asapplicable to the case on hand, envisages reservation of seatsfor in service medical officers generally for admission topostgraduate “degree” courses. Regulation 9 is compositeprovision prescribing procedure for selection of candidates—bothfor postgraduate “degree” as well as postgraduate “diploma”courses:

25.1. Clause (I) of Regulation 9 mandates that there shall be asingle National Eligibility-cum-Entrance Test (hereinafter referredto as “NEET”) to be conducted by the designated authority.

25.2. Clause (II) provides for three per cent seats of the annualsanctioned intake capacity to be earmarked for candidates withlocomotory disability of lower limbs. We are not concerned withthis provision.

25.3. Clause (III) provides for eligibility for admission to anypostgraduate course in particular academic year.

25.4. Clause (IV) is the relevant provision. It provides forreservation of seats in medical colleges/institutions for reservedcategories as per applicable laws prevailing in States/UnionTerritories. The reservation referred to in the opening part of thisclause is, obviously, with reference to reservation as per theconstitutional scheme (for the Scheduled Caste, the ScheduledTribe or the Other Backward Class candidates); and not for thein-service candidates or medical officers in service. It furtherstipulates that all-India merit list as well as Statewise merit listof the eligible candidates shall be prepared on the basis of themarks obtained in NEET and the admission to postgraduatecourses in the State concerned shall be as per the merit list only.Thus, it is provision mandating admission of candidates strictly

ABC

as per the merit list of eligible candidates for the respectivemedical courses in the State. This provision, however, containsa proviso. It predicates that in determining the merit of candidateswho are in service of the Government or public authority,weightage in the marks may be given by the Government/competent authority as an incentive @ 10% of the marksobtained for each year of service in specified remote or difficultareas of the State up to the maximum of 30% of the marksobtained in NEET. This provision even if read liberally does notprovide for reservation for in-service candidates, but only ofgiving weightage in the form of incentive marks as specifiedto the class of in-service candidates (who have served in notifiedremote and difficult areas in the State).

26. From the plain language of this proviso, it is amply clear thatit does not envisage reservation for in-service candidates inrespect of postgraduate “degree” courses with which we areDpresently concerned. This proviso postulates giving weightage ofmarks to “specified in-service candidates” who have worked innotified remote and/or difficult areas in the State—both forpostgraduate “degree” courses as also for postgraduate“diploma” courses. Further, the weightage of marks so allottedis required to be reckoned while preparing the merit list ofEcandidates.

27. Thus understood, the Central enactment and the regulationsframed thereunder do not provide for reservation for in-servicecandidates in postgraduate “degree” courses. As there is noexpress provision prohibiting reservation to in-service candidatesin respect of admission to postgraduate “degree” courses, it wascontended that providing for such reservation by the StateGovernment is not impermissible in law. Further, there areprecedents of this Court to suggest that such arrangement ispermissible as separate channel of admission for in-servicecandidates. This argument does not commend to us. In the firstplace, the decisions pressed into service have considered theprovisions regarding admission process governed by theregulations in force at the relevant time. The admission processin the present case is governed by the regulations which havecome into force from the academic year 2013-2014. ThisRegulation is self-contained code. There is nothing in thisRegulation to even remotely indicate that separate channel for

admission to in-service candidates must be provided, at least inrespect of postgraduate “degree” courses. In contradistinction,however, 50% seats are earmarked for the postgraduate“diploma” courses for in-service candidates, as is discerniblefrom clause (VII). If the regulation intended similar separatechannel for in-service candidates even in respect of postgraduate“degree” courses, that position would have been made clear inRegulation 9 itself. In absence thereof, it must be presumed thata separate channel for in-service candidates is not permissiblefor admission to postgraduate “degree” courses. Thus, the StateGovernment, in law, had no authority to issue Government Ordersuch as dated 28-2-2014, to provide to the contrary. Hence, theHigh Court was fully justified in setting aside the said governmentorder being contrary to the mandate of Regulation 9 of the 2000Regulations, as applicable from the academic year 2013-2014.”16. The reliefs prayed for by the petitioners in WritPetition(C)No. 252 of 2018, Writ Petition(C)No. 295 of 2018 and WritPetition(C)No. 293 of 2018 are broadly the same. In the petitioninstituted by the Association of Tamil Nadu Medical Officers, it hasbeen pleaded that since the year 1989, the State of Tamil Nadu had apolicy for providing separate source of entry for in-service candidatesto the extent of the 50 per cent of the seats in degree courses.Thereafter the State had also provided weightage to those in-servicedoctors who have served in rural, remote or difficult areas. Thegrievances of the petitioners arose in the light of the findings of thisCourt in the case of Dinesh Singh Chauhan (supra). The petitioners’apprehension was that it would be impermissible for the State to providea separate source of entry for in-service candidates and that any suchexercise of power by State would be in contradiction of Clause 9 whichwould cause grave prejudice to them. In this context, they made theprayers which we have already referred to. Bench of three Hon’bleJudges of this Court, at the time of the admission of the Writ Petition(Civil) no. 196 of 2018, on 13[th] April 2018 opined that the said writpetition required consideration by larger bench. Before the said Benchof 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 1964SC 1823), Kumari Chitra Ghosh & Anr. vs. Union of India & Ors.[(1969) 2 SCC 228] and Modern Dental College and ResearchCentre & Ors. vs. State of Madhya Pradesh & Ors. [(2016) 7

ASCC 353] had not been considered in the case of Dinesh SinghChauhan (supra).

17. The Bench of three Hon’ble Judges in the order passed on13[th] April 2018, observed and directed:-

“12. Having heard the learned senior counsel appearing on bothBthe sides extensively, we are of the view that Dinesh SinghChauhan (supra), has not considered the legislative Entries inrespect of the contentions we have noted above. Apparently, itappears no such contentions were raised before the Court. Sameis the situation with regard to the non-reference with respect toCthe three Constitution Bench decisions we have referred to above.As far as Modern Dental (supra) is concerned, perhaps thejudgment had not been published by the time the judgment inDinesh Singh Chauhan (supra) was rendered.

13. The petitioners have raised several other contentions andDinvited our reference to the judgments by Benches of equalstrength as in Dinesh Singh Chauhan (supra).

14. In the above circumstances, we are of the view that thesewrit petitions require consideration by larger Bench.

15. Learned senior counsel appearing for the petitioners havestrenuously pressed for an interim order since the counseling haseither commenced or in some States it is only about tocommence. Having regard to the entire facts and circumstancesof the case, we feel it is appropriate that even the interim reliefFshould be considered by the larger Bench.

16. Accordingly, place the matters before the Hon’ble the ChiefJustice of India for consideration by larger Bench, emergently.”

18. It is in this perspective the said writ petition has been referredGto us. In the other proceedings which we are hearing now also the samequestion of constitutional law is involved. There are, however, certainfactual variations as regards the manner in which such reservation iscontemplated. We shall briefly discuss first the ratio of the judgment inthe case of R. Chitralekha (supra). This was case decided whenpower was exclusively with the State Legislature to legislate in respectH

of “Education including universities, subject to the provisions of Items63, 64, 65 and 66 of List I and 25 of List III”. At that point of time,these items were enumerated against Entry 11 of List II of the SeventhSchedule to the Constitution. The dispute in that case before theConstitution Bench of this Court arose from an order passed by theState Government directing reservation of certain percentage of seatsin professional and technical colleges and institutions. Such reservationwas for Backward Classes and Scheduled Castes and Tribes. TheGovernment order issued on 26[th] July, 1963 also defined BackwardClasses. The criteria for marking, as stipulated, was that 25 per centof maximum marks for examination in the optional subjects was to betaken into account for making the selection of candidates for admissionto engineering colleges was to be fixed as interview marks. Criteriafor allotting marks in the interview was also specified. The SelectionCommittee had evolved certain different marking criteria for interviews.Some of the unsuccessful candidates had approached the High Courtfor quashing the orders issued by the Government in the matter ofadmissions to those institutions. The petitioning candidates asked fordirection that admission should be in the order of merit. The‘reservation’ part of Governmental Order was sustained by the HighCourt. The High Court, however, held that the Selection Committee hadabused the powers conferred upon it. The interviews were set asideand direction was issued by the High Court for holding interviews afreshin accordance with the scheme laid down by the Government. It wasurged before the Constitution Bench of this court by the writ petitionerstherein that the State Government had no power to appoint selectioncommittee for admitting students to colleges on the basis of qualificationshigher than or different from those prescribed by the university. Oneof the grounds for questioning the power of the State Government toappoint selection committee was that coordination and determinationof standards of university was Union subject and the State had nopower to lay down Rules for maintaining the standards of universityeducation. Referring to an earlier decision of this Court, in the case ofGujarat University & Anr. vs. Shri Krishna & Ors. [(AIR) 1963SC 703], it was held by the Constitution Bench:-

“The question was whether medium of instruction wascomprehended by either of those entries or whether it fell underboth. In that context it was observed at p. 715-16:

‘The State has the power to prescribe the syllabi and courses ofstudy in the institutions named in Entry 66 (but not falling withinEntries 63 to 65) and as an incident thereof it has the power toindicate the medium in which instruction should be imparted. Butthe Union Parliament has an overriding legislative power to ensurethat the syllabi and courses of study prescribed and the mediumselected do not impair standards of education or render thecoordination of such standards either on an all India or other basisimpossible or even difficult.’

This and similar other passages indicate that if the law made bythe State by virtue of Entry 11 of List II of the Seventh Scheduleto the Constitution makes impossible or difficult the exercise ofthe legislative power of the Parliament under the entry“coordination and determination of standards in institutions forhigher education or research and scientific and technicalinstitutions” reserved to the Union, the State law may be bad.This cannot obviously be decided on speculative and hypotheticalreasoning. If the impact of the State law providing for suchstandards on Entry 66 of List I is so heavy or devastating as towipe out or appreciably abridge the central field, it may be struckdown. But that is question of fact to be ascertained in eachcase. It is not possible to hold that if State Legislature made

law prescribing higher percentage of marks for extra-curricularactivities in the matter of admission to colleges, it would bedirectly encroaching on the field covered by Entry 66 of List Iof the Seventh Schedule to the Constitution. If so, it is notdisputed that the State Government would be within its rights toFprescribe qualifications for admission to colleges so long as itsaction does not contravene any other law.”

19. In the case of Modern Dental College (supra), aConstitution Bench of this Court examined the impact of Entry 66 ofthe Union List while analysing the legislative power of the State inGregulating 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 Entry25. In the process, List II Entry 32 also needs glance. Thus,for proper analysis, we reproduce these entries below:

List I

66. Coordination and determination of standards in institutions forhigher education or research and scientific and technicalinstitutions.

List II

32. Incorporation, regulation and winding up of corporations, otherthan those specified in List I, and universities; unincorporatedtrading, literacy, scientific, religious and other societies andassociations; cooperative societies.

List III

25. Education, including technical education, medical educationand universities, subject to the provisions of entries 63, 64, 65and 66 of List I; vocational and technical training of labour.”

101. To our mind, Entry 66 in List I is specific entry having avery specific and limited scope. It deals with coordination anddetermination of standards in institutions of higher education orresearch as well as scientific and technical institutions. The words“coordination and determination of standards” would mean layingdown the said standards. Thus, when it comes to prescribing thestandards for such institutions of higher learning, exclusive domainis given to the Union. However, that would not include conductingof examination, etc, and admission of students to such institutionsor 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 byparliamentary legislation in the form of the Indian Medical CouncilAct, 1956 and by creating the statutory body like Medical Councilof India (for short “MCI”) therein. The functions that are assignedto MCI include within its sweep determination of standards in amedical institution as well as coordination of standards and thatof educational institutions. When it comes to regulating“education” as such, which includes even medical education aswell as universities (which are imparting higher education), thatis prescribed in List III Entry 25, thereby giving concurrentpowers to both Union as well as States. It is significant to notethat 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 bythe Constitution (Forty-second Amendment) Act, 1976 with effectfrom 3-7-1977 and at the same time List II entry 25 wasamended. Education, including university education, was thustransferred to the concurrent List and in the process technicaland medical education was also added. Thus, if the argument ofthe appellants is accepted, it may render Entry 25 otiose. Whentwo entries relating to education, one in the Union List and theother in the concurrent List, coexist, they have to be readharmoniously. Reading in this manner, it would become manifestthat when it comes to coordination and laying down of standardsin the higher education or research and scientific and technicalinstitutions, power rests with the Union/Parliament to the exclusionof the State Legislatures. However, other facets of education,including technical and medical education, as well as governanceof universities is concerned, even State Legislatures are givenpower by virtue of Entry 25. The field covered by List III entry25 is wide enough and as circumscribed to the limited extent ofit being subject to List I Entries 63, 64, 65 and 66.”

102. Most educational activities, including admissions, have twoaspects: the first deals with the adoption and setting up theminimum standards of education. The objective in prescribingminimum standards is to provide benchmark of the calibre andquality of education being imparted by various educationalinstitutions in the entire country. Additionally, the coordination ofthe standards of education determined nationwide is ancillary tothe very determination of standards. Realising the vast diversityof the nation wherein levels of education fluctuated from lackof even basic primary education, to institutions of high excellence,it was thought desirable to determine and prescribe basicminimum standards of education at various levels, particularly atthe level of research institutions, higher education and technicaleducation institutions. As such, while balancing the needs of Statesto impart education as per the needs and requirements of localand regional levels, it was essential to lay down uniformminimum standard for the nation. Consequently, the Constitution-makers provided for List I Entry 66 with the objective ofmaintaining uniform standards of education in fields of research,higher education and technical education.

103. The second/other aspect of education is with regard to theimplementation of the standards of education determined byParliament, and the regulation of the complete activity ofeducation. This activity necessarily entails the application of thestandards determined by Parliament in all educational institutionsin accordance with the local and regional needs. Thus, while ListI Entry 66 dealt with determination and coordination of standards,on the other hand, the original List II Entry 11 granted the Statesthe exclusive power to legislate with respect to all other aspectsof education, except the determination of minimum standards andcoordination which was in national interest. Subsequently, videthe Constitution (Forty-second Amendment) Act, 1976, theexclusive legislative field of the State Legislature with regard toeducation was removed and deleted, and the same was replacedby amending List III Entry 25 granting concurrent powers to bothParliament and State Legislature the power to legislate withrespect to all other aspects of education, except that which wasspecifically 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] ithas been observed that the entire gamut of admission falls underList I Entry 66. The said judgment by Bench of two Judges is,however, contrary to law laid down in earlier larger Benchdecisions. In Gujarat University [Gujarat University v.Krishna Ranganath Mudholkar, AIR 1963 SC 703 : 1963 Supp(1) SCR 112] , Bench of five Judges examined the scope ofList II Entry 11 (which is now List III Entry 25) with referenceto List I Entry 66. It was held that the power of the State tolegislate in respect of education to the extent it is entrusted toParliament, is deemed to be restricted. Coordination anddetermination of standards was in the purview of List I and powerof the State was subject to power of the Union on the saidsubject. It was held that the two entries overlapped to someextent and to the extent of overlapping the power conferred byList I Entry 66 must prevail over power of the State. Validity ofa State legislation depends upon whether it prejudicially affects“coordination or determination of standards”, even in

absence of Union legislation. In R. Chitralekha v. State ofMysore [R. Chitralekha v. State of Mysore, AIR 1964 SC 1823: (1964) 6 SCR 368] , the same issue was again considered. Itwas observed that if the impact of the State law is heavy ordevastating as to wipe out or abridge the Central field, it may bestruck 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 wasobserved that to the extent that State legislation is in conflict withthe Central legislation under Entry 25, it would be void andinoperative. To the same effect is the view taken in PreetiSrivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC120 : 1 SCEC 742] and State of Maharashtra v. SantDnyaneshwar Shikshan Shastra Mahavidyalaya [State ofMaharashtra v. Sant Dnyaneshwar Shikshan ShastraMahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637] . Though theview 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) 4SCC 401] to the effect that admission standards covered by ListI Entry 66 could apply only post admissions was overruled inPreeti Srivastava [Preeti Srivastava v. State of M.P.,(1999) 7SCC 120 : 1 SCEC 742], it was not held that the entire gamutof admissions was covered by List I as wrongly assumed inBharati Vidyapeeth [Bharati Vidyapeeth v. State ofMaharashtra, (2004) 11 SCC 755 : 2 SCEC 535.

105. We do not find any ground for holding that PreetiSrivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC120 : 1 SCEC 742] excludes the role of States altogether fromadmissions. Thus, observations in Bharati Vidyapeeth [BharatiVidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2SCEC 535] that entire gamut of admissions was covered by ListI Entry 66 cannot be upheld and overruled to that extent. Nodoubt, List III Entry 25 is subject to List I Entry 66, it is notpossible to exclude the entire gamut of admissions from List IIIEntry 25. However, exercise of any power under List III Entry25 has to be subject to Central law referable to Entry 25.

In Her concurring opinion, Banumathi J.(as her Ladyship thenwas) observed :-

“132. The intent of our Constitution Framers while introducingentry 66 of the Union List was thus limited only to empoweringthe Union to lay down uniform standard of higher educationthroughout the country and not to bereft the State Legislature ofits entire power to legislate in relation to “education” andorganising its own common entrance examination.”

20. The Constitution Bench in the case of Modern DentalCollege (supra) did not opine that there was plenary legislative powerof the Union covering the entire field of admission in higher educationalinstitutions. In the case of Dinesh Singh Chauhan (supra), anotherConstitution Bench decision of this Court Dr. Preeti Srivastava &Anr. vs. State of M.P. & Ors.(1999)7 SCC 120 was referred to andfollowed. In the case of Dr. Preeti Srivastava (supra), this Courtexamined the following question:

“The question is whether apart from providing reservation foradmission to the postgraduate courses in Engineering andMedicine for special category candidates, it is open to the Stateto prescribe different minimum qualifying marks, for specialcategory candidates seeking admission under the reservedcategory.”

21. The case of Preeti Srivastava (supra) involved the questionof prescribing minimum percentage of qualifying marks for the reservedcategory candidates (with reference to Article 15(4) of the Constitutionof India). As regards the respective powers of the State and the Unionto legislate in the field of education, it was held:

“35. The legislative competence of Parliament and thelegislatures of the States to make laws under Article 246 isregulated by the VIIth Schedule to the Constitution. In the VIIthSchedule as originally in force, Entry 11 of List II gave to theState an exclusive power to legislate on “education includinguniversities, subject to the provisions of Entries 63, 64, 65 and66 of List I and Entry 25 of List III”.

Entry 11 of List II was deleted and Entry 25 of List III wasamended with effect from 3-1-1976 as result of the Constitution42nd Amendment Act of 1976. The present Entry 25 in theConcurrent List is as follows:

“25. Education, including technical education, medical educationand universities, subject to the provisions of Entries 63, 64, 65and 66 of List I; vocational and technical training of labour.”

Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 ofList I is as follows:

“66. Coordination and determination of standards in institutionsfor higher education or research and scientific and technicalinstitutions.”

Both the Union as well as the States have the power to legislateon education including medical education, subject, inter alia, toCEntry 66 of List I which deals with laying down standards ininstitutions for higher education or research and scientific andtechnical institutions as also coordination of such standards. AState has, therefore, the right to control education includingmedical education so long as the field is not occupied by anyUnion legislation. Secondly, the State cannot, while controllingDeducation in the State, impinge on standards in institutions forhigher education. Because this is exclusively within the purviewof the Union Government. Therefore, while prescribing thecriteria for admission to the institutions for higher educationincluding higher medical education, the State cannot adverselyEaffect the standards laid down by the Union of India under Entry66 of List I. Secondly, while considering the cases on the subjectit is also necessary to remember that from 1977, education,including, inter alia, medical and university education, is now inthe Concurrent List so that the Union can legislate on admissioncriteria also. If it does so, the State will not be able to legislateFin this field, except as provided in Article 254.”

22. On the aspect of laying down norms for admission, it washeld in the case of Dr. Preeti Srivastava (supra):

36. It would not be correct to say that the norms for admissionhave no connection with the standard of education, or that therules for admission are covered only by Entry 25 of List III.Norms of admission can have direct impact on the standardsof education. Of course, there can be rules for admission whichare consistent with or do not affect adversely the standards ofeducation prescribed by the Union in exercise of powers underEntry 66 of List I. For example, State may, for admission to

the postgraduate medical courses, lay down qualifications inaddition to those prescribed under Entry 66 of List I. This wouldbe consistent with promoting higher standards for admission tothe higher educational courses. But any lowering of the normslaid down can and does have an adverse effect on the standardsof education in the institutes of higher education. Standards ofeducation in an institution or college depend on various factors.Some of these are:

(1) the calibre of the teaching staff;

(2) proper syllabus designed to achieve high level ofeducation in the given span of time;

(3) the student-teacher ratio;

(4) the ratio between the students and the hospital bedsavailable to each student;

(5) the calibre of the students admitted to the institution;

(6) equipment and laboratory facilities, or hospital facilitiesfor training in the case of medical colleges;

(7) adequate accommodation for the college and theattached hospital; and

(8) the standard of examinations held including the mannerin which the papers are set and examined and theclinical performance is judged.”

23. From composite reading of these authorities, the positionof law as emerges, is that all aspects of admission cannot be said tobe covered by Entry 66 of the Union List, even if the entire admissionprocess is incorporated in single code. Certain aspects of admissionstipulated by the State may trespass into legislative zone of “coordinationand determination of standards.” One illustration of such potentialtrespass would be lowering the eligibility criteria for admission fixedby Union legislation, the 2000 Regulations in this case. In such asituation, the State would be encroaching upon exclusive field of theUnion. The case of Preeti Srivastava (supra) was decided broadlyon this rationale. But there can be Rules on facets of admission processin institutions of higher education framed by the State legislature whichwould not have impact on the subjects enumerated against Entry 66 ofthe Union List, and thus would not result in conflict with the latter. Whileanalysing the State’s power to legislate under Entry 11 of List II of the

ASeventh schedule of the Constitution, as it originally existed, it has beenobserved in the case of Modern Dental College (supra) that“…except the determination of minimum standards and coordinationwhich was in the national interest..”, the State had power to legislatewith respect to all other aspects of education. Now that the subjectsof erstwhile Entry 11 of List II find their way in the Concurrent List,Bthe State’s power is further subject to any statutory instrument owingits origin to any Union legislation, even if such statutory instrument isnot enacted on the basis of exclusive power of the Union contained inEntry 66 of List I. In that context, we would have to examine as towhether these facets of admission to the postgraduate medical degreeCcourse from separate entry channel comprising of in-service doctorsstand already covered or occupied by the statutory instrument in theform of 2000 Regulations owing its origin to Union legislation comeswithin the ambit of Entry 66 of List-I. If not, the subject-entry wouldbe in the concurrent list and it would be permissible for the States tolay down their own norms, which are not covered by any UnionDlegislations. In the case of Modern Dental College (supra), this wasthe judicial approach of the Constitution Bench. We find support fortaking this view from the case of R. Chitralekha (supra) also. In thelatter authority, of course, the competing entries were in List I and ListII of the Seventh Schedule of the Constitution and the dispute was onmethodology of marking in the selection process as also reservation forEBackward Classes and Scheduled Castes. In R. Chitralekha (supra),this Court, in substance took the view that the subject heads of Entry66 of List I did not encompass every aspect of admission process inhigher educational institutions and opined that State legislativecompetence stood retained to deal with certain features connected withFthe admission process also, unless the State’s action in that regarddirectly encroached upon the subjects comprised within the Union List.There can thus be certain features of the admission procedure overwhich the State can also have power to make stipulations. In morerecent case, Yatinkumar Jasubhai Patel and Others vs. State ofGujarat and Ors. [(2019) 10 SCC 1], Bench comprising of threeGJudges examined similar question involving interpretation of GujaratUniversity Act, 1949. In consideration of this Court was Rules framedby the Gujarat University for the purpose of governing admission topostgraduate course. So far as 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.H

This Court observed, inter-alia, in this judgment:-

“9.5. Even while giving admissions in the State quota/institutionalreservation quota, still the admissions are required to be givenon the basis of the merits determined on the basis of NEETexamination results. Under the circumstances, introduction of theNEET scheme, as such, has nothing to do with the “institutionalpreference.....”

24. The third authority referred to by the three Hon’ble Judgesof this Court while referring the Writ Petition of Tamil Nadu MedicalOfficers Association & Ors., in pursuance of which these mattershave been placed before us on reference, is the decision of anotherConstitution Bench of this Court, the case of Kumari Chitra Ghosh& Anr.(supra). The dispute in this case was over reservations madein respect of certain categories of students for admission to the MBBScourse in medical college under the Delhi University. 25 per cent ofthe seats (excluding the seats reserved for Government of Indianominees) were reserved for girl students. There was, however, eightstipulated categories of students who were eligible for admission. Thesecategories included being residents of Delhi, wards of centralgovernment servants posted in Delhi, cultural scholars etc.

25. The minimum percentage of marks which candidate seekingadmission was to obtain in the aggregate of compulsory subject was55. The appellants obtained 62.5% marks and were domiciled in Delhi.But they could not obtain admission because of admission given to certainstudents nominated by the Central Government who got marks lowerto what they had obtained. They approached the Delhi High Courtquestioning 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 classificationof 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 doesnot forbid reasonable classification. In order to pass the test ofpermissible classification two conditions must be fulfilled- (i) thatthe classification is founded on intelligible differentia whichdistinguishes persons or things that are grouped together fromothers left out of the group and (ii) differentia must have rational

relation to the object sought to be achieved. The first group ofpersons for whom seats have been reserved are the sons anddaughters of residents of Union Territories other than Delhi.These areas are well known to be comparatively backward andwith the exception of Himachal Pradesh they do not have anyMedical College of their own. It was necessary that personsdesirous of receiving medical education from these areas shouldbe provided some facility for doing so. As regards the sons anddaughters of Central Government servants posted in IndianMissions abroad it is equally well known that due to exigenciesof their service these persons are faced with lot of difficulties inthe matter of education. Apart from the problems of language, itis not easy or always possible to get admission into institutionsimparting medical education in foreign countries. The Cultural,Colombo Plan and Thailand scholars are given admission inmedical institutions in this country by reason of reciprocalarrangements of educational and cultural nature. RegardingJammu and Kashmir Scholars it must be remembered that theproblems relating to them are of peculiar nature and there donot exist adequate arrangements for medical education in the Stateitself for its residents. The classification in all these cases is basedon intelligible differentia which distinguished them from the groupto which the appellants belong.

9. It is the Central Government which bears the financial burdenof running the medical college. It is for it to lay down the criteriafor eligibility. From the very nature of things it is not possible tothrow the admission open to students from all over the country.The Government cannot be denied the right to decide from whatFsources the admission will be made. That essentially is questionof policy and depends inter alia on an overall assessment andsurvey of the requirements of residents of particular territoriesand other categories of persons for whom it is essential to providefacilities for medical education. If the sources are properlyclassified whether on territorial, geographical or other reasonableGbasis it is not for the courts to interfere with the manner andmethod of making the classification.”

This judgment was founded on the principle of reasonableclassification and has been subsequently followed in other cases as wellwhere certain categories of candidates have been given benefits in theHadmission process based on certain specified criteria.

27. The issue to be addressed now is as to whether Clause 9 ofthe 2000 Regulations is relatable to Entry 66 of List I of Seventh Scheduleof the Constitution or as to whether the source of power to make suchRegulation, particularly in relation to providing separate entry channelfor in-service candidates come under Entry 25 of the Concurrent List.In the event we find that the entry relates to the Concurrent List, insuch situation also we shall have to examine if the field for formulatingadmission quota for in-service doctors stands entirely occupied by theaforesaid MCI Regulations or not. For this exercise, however, we shallhave to analyse the different provisions of Clause 9 of the 2000Regulations.

28. Before we embark on such analysis, we shall deal with twoother aspects of dispute having Constitutional import involved in thisreference. First, we would test the nature or character of the Statequota, which we have so far referred to as reservation. Clause 9 (4)or Clause 9 (IV) as it stood prior to 5[th] April 2018 of the 2000Regulations permit reservation as per the applicable laws of the Stateor the Union Territory. In the case of Dinesh Singh Chauhan (supra),the three Judge Bench of this Court opined that the reservation referredto in the opening part of the said clause is akin to reservation as perconstitutional scheme and does not embrace reservation for in-servicecandidates. We have quoted paragraph 25.4 of the report in which suchview has been expressed. We are in agreement with the opinionexpressed in the case of Dinesh Singh Chauhan on this constructionof Clause 9 (4) of the 2000 Regulations. In series of judgmentsincluding the cases of D.N. Chanchala vs. The State of Mysore andOthers [(1971) 2 SCC 293], K. Duraiswami & Anr. vs. State ofTamil Nadu & Ors. [(2001) 2 SCC 538], AIIMS Students Unionvs. 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 beenheld that allocation of seats for in-service candidates is only separateor exclusive channel of entry or source of admission and such entry-path cannot be equated with reservation provisions incorporated ascompensatory discrimination. But classifying category of candidatesfor 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 reasonableclassification, it has been held in the case of Gopal D. Tirthani(supra):-

“21. To withstand the test of reasonable classification within themeaning of Article 14 of the Constitution, it is well settled thatthe classification must satisfy the twin tests: (i) it must be foundedon an intelligible differentia which distinguishes persons or thingsplaced in group from those left out or placed not in the group,and (ii) the differentia must have rational relation with theobject sought to be achieved. It is permissible to use territoriesor the nature of the objects or occupations or the like as the basisfor classification. So long as there is nexus between the basisof classification and the object sought to be achieved, theclassification is valid. We have, in the earlier part of the judgment,noted the relevant statistics as made available to us by the learnedAdvocate-General under instructions from Dr Ashok Sharma,Director (Medical Services), Madhya Pradesh, present in theCourt. 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 byspecialists and block medical officers who must be postgraduates.There is nothing wrong in the State Government setting apart adefinite percentage of educational seats at postgraduation levelconsisting of degree and diploma courses exclusively for the in-service candidates. To the extent of the seats so set apart, thereis separate and exclusive source of entry or channel foradmission. It is not reservation. In-service candidates, and thecandidates not in the service of the State Government, are twoclasses based on an intelligible differentia. There is laudablepurpose sought to be achieved. In-service candidates, on attaininghigher academic achievements, would be available to be postedin rural areas by the State Government. It is not that an in-servicecandidate would leave the service merely on account of havingsecured postgraduate degree or diploma though secured byvirtue of being in the service of the State Government. If thereis any misapprehension, the same is allayed by the StateGovernment obtaining bond from such candidates as conditionprecedent to their taking admission that after completing PGdegree/diploma course they would serve the State Governmentfor another five years. Additionally, bank guarantee of rupeesthree lakhs is required to be submitted along with the bond. Thereis, thus, clearly perceptible reasonable nexus between theclassification and the object sought to be achieved.”29. The same view stands consistently reflected in large bodyauthorities, including the cases of Dr. Snehalata Patnaik & Ors vs.State of Orissa & Ors [(1992) 2 SCC 26], Pre PG MedicalSangharsh Committee & Anr. vs. Dr. Bajrang Soni & Ors. [(2001)8 SCC 694], and the case of AIIMS Students Union (supra). In thecase of Satyabrata Sahoo & Ors. vs State of Orissa & Ors. [(2012)8 SCC 203] also, there were two entry channels, one for in-servicecandidates and the other for open-category candidates. Provisions forthese two entry paths were not under challenge in that case. Theconstitutionality of institutional preference in postgraduate courses infavour of in-house candidates was found to be valid, on the basis ofreasonable classification in the case of AIIMS (supra). The case ofYatin Kumar Jasubhai Patel & Ors. (supra) also is based on similarreasoning. In order to justify the retention of such source of entry intopostgraduate medical degree courses, it was argued on behalf of theState of Tamil Nadu and State of West Bengal by Mr. Vaidyanathanand Mr. Giri, for the former and Mr. Rakesh Dwivedi, learned SeniorAdvocate for the latter that such reservation was necessary for properfunctioning of the public health system as the respective States haveshortage of specialised better qualified doctors to serve the remote areas.This stand has been supported by Mr. P.V. Surendranath, learned SeniorAdvocate appearing for the West Bengal University of Health Sciences.The same stand has been taken by Mr. Jaideep Gupta, learned SeniorAdvocate for the State of Kerala and Mr. Rahul Chitnis, learnedAdvocate for the State of Maharashtra. The theme of argument onbehalf of the in-service doctors has been that they have to dischargearduous duties serving large number of patients across the respectiveStates and it is always not possible for them to academically update tomeet the theoretical standards set by the MCI for the entranceexamination. Mr. Sanjay Hegde and Mr. Vijay Hansaria, learned SeniorAdvocates 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 2018.Learned Senior Advocates for these petitioners as also the appellantin-service doctors in the appeals arising out of the judgment of the HighCourt of Calcutta have sought to justify their defence on the samegrounds. On the aspect of legislative competence, the rival argumentshave already been dealt with in our discussions earlier in this judgment.We are satisfied that the doctors in employment of the States and alliedsectors form separate and distinct class and for the purpose ofadmission in postgraduate degree courses they can be given certain

Aelements of preference. Holding them to be distinct group fits in withoverall objective of having medical professionals with superiorqualification for tending to the needs of the general public. Moreover,the 2000 Regulations by permitting award of incentive marks to themand also providing for 50 per cent reservation in diploma coursesindirectly recognise this category of doctors as separate class. ButBdo the provisions of 2000 Regulations permit the States to provide quotafor such in-service candidates?

30. In the case of Modern Dental College (supra), it has beenexplained the manner in which Entry 66 of List I ought to be interpretedwhile dealing with admission to postgraduate medical admission course.CIt has been held in this judgment that the said entry in List I is havinga very specific and limited scope. It has also been held in the saiddecision that while setting standards in educational institutions for higherstudies would be in the exclusive domain of the Union, that might notinclude conducting of examination etc. Regulating medical educationwould come within Entry 25 of the List III giving concurrent powersDto both Union as well as States. In the case of Modern DentalCollege (supra), the rules for admission into medical postgraduatecourses framed by the State government were assailed.31. Referring to the judgment of this Court in the case of PreetiSrivastava (supra), the Constitution Bench did not find any ground forEholding that the said judgment excluded the role of States altogetherfrom admissions.

32. Now, turning to the context in which we are adjudicating thepresent set of proceedings, we have to ascertain as to whether settingapart specified percentage of seats for in-service doctors in postgraduateFmedical degree courses is referable to matters of admissions orstandards of education. It has been acknowledged in the decision ofModern Dental College (supra) that there may be certain overlappingof subjects vis-à-vis Entry 66, List I and Entry 25, List III to the SeventhSchedule of the Constitution of India. In our opinion, the question ofproviding separate entry-path to in-service doctors may have someGeffect on overall standard of medical education at the postgraduatedegree level institutions, as the students who would gain admission tosuch courses may not come purely on the basis of uniform order ofmerit. But that is not the manner in which we ought to interpret theexpression “standards” in institutions of higher education. TheHConstitution Bench judgment in the case of Modern Dental College

(supra) has construed the words “coordination and determination ofstandards” to mean laying down the standards of education. Analysisof Clause 9 of the 2000 Regulations reveals that the said clause providesa minimum entry standard in the form of clearance of the NEET onobtaining minimum of marks of 50 per cent by general categorycandidates. Once these standards are laid down, we are of the viewthat if the State authorities provide an independent channel of entry forin-service doctors in postgraduate medical degree courses, who fulfilthe aforesaid minimum standards, as the latter expression has beenconstrued in the case of Modern Dental College (supra), provisionsto that effect would not be in breach of the constitutional scheme. Theimpact on the “standards”, as the expression is to be construed in Entry66 of the first list, would be far too distant from admission norms framedby the State authorities for such in-service doctors. The separate entry-channel for in-service doctors would be integral to the admission norms,relatable to the Entry 25 of the Concurrent List. Such admission normsif compatible with minimum standards laid down by the MCI, wouldfall under the items specified against the aforesaid entry of List III.

33. The question that arises next is whether Clause 9 of the 2000Regulations lay down the procedure for admission in such mannerthat providing separate entry channel for in-service doctors eventhrough the State merit list by an independent statutory instrument wouldbe contrary to the provisions of the 2000 Regulations or not. If that isthe case, then the respective State legislations and Regulations wouldfall foul of Article 246 and Article 254 of the Constitution of India. Wereproduce below the text of Articles 246 and 254 of the Constitutionof India:-

“Article 246- Subject-matter of laws made by Parliament andby the Legislatures of States.-

(1) Notwithstanding anything in clauses (2) and (3),Parliament has exclusive power to make laws withrespect to any of the matters enumerated in List I inthe Seventh Schedule (in this Constitution referred toas 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 thematters 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 anyState has exclusive power to make laws for such Stateor any part thereof with respect to any of the mattersenumerated in List II in the Seventh Schedule (in thisConstitution referred to as the “State List”).

(4) Parliament has power to make laws with respect to anymatter for any part of the territory of India not included[in State] notwithstanding that such matter is matterenumerated in the State List.

Article 254- Inconsistency between laws made by Parliamentand laws made by the Legislatures of States- (1) If any provisionCof law made by the Legislature of State is repugnant to anyprovision of law made by Parliament which Parliament iscompetent to enact, or to any provision of an existing law withrespect to one of the matters enumerated in the Concurrent List,then, subject to the provisions of clause (2), the law made byDParliament, whether passed before or after the law made by theLegislature of such State, or, as the case may be, the existinglaw, shall prevail and the law made by the Legislature of the Stateshall to the extent of the repugnancy, be void.

(2) Where law made by the Legislature of State withErespect to one of the matters enumerated in theConcurrent List contains any provision repugnant to theprovisions of an earlier law made by Parliament or anexisting law with respect to that matter, then, the lawso made by the Legislature of such State shall, if it hasbeen reserved for the consideration of the President andFhas received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament formenacting at any time any law with respect to the same matterincluding law adding to, amending, varying or repealing the lawso made by the Legislature of the State.”

34. It has been argued on behalf of the Union of India byMr. Aman Lekhi, learned Additional Solicitor General of India and byMr. Vikas Singh, learned Senior Advocate appearing for the MCI thatthe said Clause 9 is self-contained code and there is an implied barupon permitting separate source of entry for in-service doctors. Clause9(4) of the 2000 Regulations makes provisions for reservation of seats

in postgraduate courses, not making any distinction between degree anddiploma courses. In Clause 9(8) thereof, or in Clause 9(VII) in its earlierform, reservation of 50 per cent seats in diploma courses has beenprescribed. Main stand of the MCI is that the degree course is full-fledged three years course and clinical subjects in such course is oneof the most sought after by the students. It is MCI’s case thatpostgraduate degrees enable the students to pursue super specialitycourses later on as well as become teachers in medical institutes. ThePG diploma course, on the other hand, according to the MCI, is ofgreater practical value for treating patients in remote and difficult orrural areas of the country. The MCI, according to Mr. Singh has soughtto strike balance between competing interest of in-service candidatesand direct candidates as also interest of the States in ensuring qualitymedical treatment to remote areas, while not compromising on merit.This stand has been supported by Mr. Nidhesh Gupta, learned SeniorAdvocate representing private respondents from open- categoryappearing in the appeals arising out of the judgment of the CalcuttaHigh Court. The disadvantages spelt out by the in-service doctors is ofbeing out of touch with academic developments because of theirpressing duties often in remote locations. These disadvantages wereconsidered by this Court in the case of AIIMS (supra), and it wasrecorded 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 andwere either picked up in the government service or had soughtfor joining government service because, may be, they could notget seat in postgraduation and thereby continue their studiesbecause of shortage of seats in higher level of studies. Onaccount of their having remained occupied with their serviceobligations, they became detached or distanced from theoreticalstudies and therefore could not have done so well as toeffectively compete with fresh medical graduates at the PGentrance examination. Permitting in-service candidates to dopostgraduation by opening separate channel for admittancewould enable their continuance in government service afterpostgraduation which would enrich health services of the nation.Candidates in open category having qualified in postgraduationmay not necessarily feel attracted to public services. Providingtwo sources of entry at the postgraduation level in certainproportion between in-service candidates and other candidates

Athus achieves the laudable object of making available betterdoctors both in public sector and as private practitioners. Theobject sought to be achieved is to benefit two segments of thesame society by enriching both at the end and not so much as toprovide protection and encouragement to one at the entry level.”

B35. According to Mr. Singh, these drawbacks being faced byin-service doctors can be overcome by awarding incentive markscontemplated in proviso to sub-clause (4) of Clause 9. Even if weproceed on the basis that Clause 9 is self-contained code, as held inthe case of Sudhir N. (supra), such interpretation having been approvedin the case of Dinesh Singh Chauhan (supra), in our view self-Ccontained code can cover only those subjects which are contained insuch code. This is not an exhaustive code covering every feature ofadmission to postgraduate degree courses in medical education. If thecode does not refer to certain matters, which do not have impact on ordilute the main subject for which the code is made, appropriateauthorities are not enjoined from making provisions for such uncoveredDareas. This we hold because the field of legislation involved in thesubject-dispute is shared field between the Union and the States. Thelegislative disability of the States would occur only when the Unionlegislation covers the same subject on which State undertakes legislativeexercise and the State legislative instrument is found to be repugnantEto the latter. There also can be vacant legislative zones within code,and such vacant zones can be filled up by the appropriate legislature.We have already referred to the provisions contained in the codepertaining to the admission process. Clause 9(4)(or Clause 9(IV) in itsearlier form) of the 2000 Regulations further stipulates that candidatesshall be admitted to post-graduate courses from the two merit lists only,Fas referred to in the said clause. On behalf of the writ petitioners whohad instituted proceedings in the High Court at Calcutta, it was submittedthat if statute requires thing to be done in particular manner, itmust be done in that manner or not at all as held in Nazir Ahmed vs.King Emperor AIR 1936 PC 253. Certain other authorities reiteratingthe same dictum have been cited. This principle, however, has becomeGso well-established in our jurisprudence that we do not consider itnecessary to specifically refer to those authorities in this judgment. Buthaving regard to Clause 9(4) of the 2000 Regulations, we do not thinkprovision for reservation of in-service doctors by the State from theState-wise merit list published in pursuance of that provision would resultHin deviation from mandatory statutory scheme. The aforesaid sub-clause is required to be construed in the light of the State’s power tomake provisions over the admission norms, provided the candidates fulfilthe basic admission criteria contained in the 2000 Regulations. Havingregard to the legal and factual context of this case and considering thefact that the issue of legislative competence arises in respect of an entrybelonging to shared, and not exclusive field of legislations, in our opinionthe said sub-clause cannot be interpreted to mean that the State isdenuded of the power to make separate channel of admission to thesaid courses for in-service doctors from the State merit list. This is anissue of legislative competence and the Nazir Ahmed dictum does notcome into conflict with the interpretation we are giving to this clause.Application of that principle solely on the basis of Union legislation,without examining the scope of the State’s legislative power in the givencontext, would be contrary to the constitutional scheme in havingconcurrent field of legislation. The said sub-clause does not prescribespecific bar on the State authorities in providing for such reservationor such separate entry-channel. The principle of implied exclusion alsowould not apply here in our opinion. The principle of implied exclusionis derived from the latin dictum “expressio unius est exclusioalterius”. There are authorities, which caution the Courts againstindiscriminate application of this doctrine, describing it to be “dangerousmaster” (Mary Angel and Ors. vs. State of Tamil Nadu (1999) 5SCC 209, State of Karnataka vs. Union of India & Anr. (1977) 4SCC 608, and Assistant Collector of Central Excise vs. NationalTobacco of India Ltd. (1972) 2 SCC 560).

36. When subject falls in shared field of legislation, there maybe cases where the dominant legislative body may not have had madeprovisions in legislative instrument for which it had power to do so.But in such situation the dominant legislative body cannot prevent thesecondary legislative body from making provisions in that regard. Wewould make it clear here that we are using the terms “dominantlegislative body” to describe the Union legislature and “secondarylegislative body” to refer to the State legislature in the context of theconcurrent list only. We are doing so because in case of repugnancybetween two legislative instruments originating from the Union and theState legislatures in relation to any entry therein, the former is to prevailas per the constitutional scheme. Turning back to the aspect of occupiedfield, if certain areas of legislative entry is left void by the UnionLegislature, these void areas would come within the legislative powerof the secondary legislative body as the constitutional entry gives both

Athe legislative bodies co-existing, power to legislate on such subjects.Clause 9 of the 2000 Regulations is no doubt self-contained code.But as we have already observed, it is not an exhaustive code coveringall aspects of admission in postgraduate medical degree courses. Thescope of this code and extent of its operation has been explained bythis Court in the case of Yatinkumar Jasubhai Patel & Ors. (supra).BNegation of power of the State cannot be matter of inference, orsuch negation cannot be in anticipation that the Union Legislature maymake provisions in future in the vacant legislative space. The authoritiesin support of this proposition are West U.P. Sugar Mills Association& Ors vs. State of Uttar Pradesh & Ors. (2020 SCC Online SCC380), 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 caseswhere the State legislature makes law repugnant to any provision oflaw made by the Parliament, the Parliamentary law would prevail. WeDdo not find the 2000 Regulations so overwhelming in its scope and extentthat we can proceed on the presumption that the entire field of admissionto postgraduate medical course stands covered by it. In the facts ofthe given case, we do not think we can proceed on the basis of therebeing implied repugnancy. Such repugnancy has to be direct and positive.

E37. Is there any vacant space for State to prescribe separateentry-channel for in-service doctors, having regard to the admissionprocess laid down in the 2000 Regulations? In the case of ModernDental College (supra), it has been observed, referring to the earlierEntry 11 of List II, that the States had exclusive power to legislate withFrespect to all aspects of education barring determination of standardsand coordination by the Parliament. In the case of Preeti Srivastava(supra), legislative competence of the State making admission rules notinconsistent with the standards set down by the Union Legislature hasbeen acknowledged. It has been observed in the judgment of ModernDental College (supra) that except the determination of minimumGstandards and coordination, State’s power in regulating medical educationwas preserved. When the said entry (i.e. Entry 11 of List II) wasbrought to the Concurrent List by 42[nd] Amendment to the Constitutionof India, the form of State’s power remained the same, provided ofcourse there was no repugnancy of State statutory instrument withany Union legislative provisions covering the same subject.H

38. We are of the opinion that the admission process stipulatinga distinct source of entry for in-service candidates by itself would notconstitute breach of the provisions of Clause 9 of the 2000 Regulations,provided that the minimum standards mandated by the said Regulationsfor being eligible to pursue postgraduate medical degree course areadhered to. separate source of entry for in-service doctors throughthe State merit list in our view would come within the legislative powerand competence of the State. We also take note of the fact thatreservation for in-service doctors has been long standing practise andthe rationale behind such reservation appears to be reasonable to us.But we refrain from dilating on the necessity of maintaining such practiseas in this judgment, we are primarily concerned with the question ofcompetence of State authorities in making Rules providing for suchreservation.39. Clause 9(4) of the 2000 Regulations stipulates entry into thepostgraduate courses from the two merit lists, one all India and the otherthat of the State. The same was the scheme of Clause 9(IV) in itserstwhile form. The dispute in these proceedings, however, is mainlyon admission norms to postgraduate degree courses. If the Stateauthorities provide reservation for in-service doctors from within theState’s own merit list, our view is that such an exercise would berelatable to the admission process and the same would not be in breachof any prohibition flowing from the 2000 Regulations. This would entailsome form of variation of the merit list of the State, but we do not findany prohibition under the 2000 Regulations against State undertakingthat exercise. Such step undertaken by the State would be relatable tothe State’s legislative power derived from Entry 25 of the ConcurrentList and not covered by the 2000 Regulations. We do not find anyrepugnancy with the 2000 Regulations if the State authorities createsuch distinct channel of entry.

40. In the case of Gopal D. Tirthani (supra), there wasreservation for in-service candidates. This was found to be separateand exclusive channel of entry or source of admission. As we havealready observed, having separate entry-channel for in-servicecandidates to postgraduate medical courses has been long standingpractise. The Bench of three Hon’ble Judges of this Court in the caseof Dinesh Singh Chauhan (supra) sought to distinguish this factor onthe ground that the provisions of Clause 9, which was applicable at thattime the case of Gopal D. Tirthani (supra) was decided, was different

Afrom its form as it subsisted when the former case was decided. Butthe relevant clause, as reproduced in the judgment of Gopal D. Tirthani(supra) did not contain any provision for separate entry route forin-service candidates. Paragraph 6 of the said judgment [reported in(2003) 7 SCC 83] reproduces Clause 9(1) as it prevailed then. We arequoting below the said paragraph:-B

“6. Regulation 9 of the Regulations framed by the MedicalCouncil of India reads as follows:-

“9. Selection of postgraduate students-(1) Students forpostgraduate medical courses shall be selected strictly on thebasis of their academic merit.

For determining the academic merit, the university/institution mayadopt any one of the following procedures both for degree anddiploma courses:

(i) on the basis of merit as determined by competitivetest conducted by the State Government or by thecompetitive authority appointed by the State Governmentor by the university/group of universities in the sameState;

(ii) on the basis of merit as determined by centralized testheld at the national level; or

(iii) on the basis of the individual cumulative performanceat the first, second and third MBBS examinations, ifsuch examinations have been passed from the sameuniversity; or

(iv) combination of (i) and (iii)

Provided that whatever entrance test for postgraduate admissionsis held by State Government or university or any otherauthorized examining body, the minimum percentage of marksfor eligibility for admission to postgraduate medical course shallbe fifty per cent for all the candidates:

Provided further that in non-governmental institutions fifty percent of the total seats shall be filled by the competent authorityand the remaining fifty per cent by the management of theinstitution on the basis of merit.”

41. The selection criteria as contained in Clause 9 of the 2000Regulations, which was considered by this Court in the case of GopalD. Tirthani (supra) and the content of Clause 9, which is the subjectof 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 merit based approach. Reservation of in-servicecandidates was made through Executive Orders of the StateGovernment. We are not to undertake word to word comparison ofClause 9 as it prevailed at different points of time. What matters hereis that in its original or earlier version, no provision for reservation orseparate entry-channel for in-service doctors has been shown to us byany of the learned counsel appearing for the parties. The StateGovernment Orders laid down such distinct source of entry.Interpretation of the same clause in its present form should also be basedon the same underlying reasoning.

42. Because of these reasons, we hold that there is no bar inClause 9 of the Postgraduate Medical Education Regulations, 2000 asit prevailed on 15[th] February 2012 and subsequently amended on 5[th]April, 2018 on individual States in providing for reservation of in-servicedoctors for admission into postgraduate medical degree courses. Butto take benefit of such separate entry channel, the aspiring in-servicedoctors must clear the NEET Examination with the minimum prescribedmarks as stipulated in the 2000 Regulations. We respectfully differ fromthe views expressed by the Bench of three Hon’ble Judges of this Courtin the case of the State of Uttar Pradesh & Ors. vs. Dinesh SinghChauhan [(2016) 9 SCC 749] to the extent it has been held in the saiddecision that reservation for the said category of in-service doctors bythe State would be contrary to the provisions of 2000 Regulations. Inour opinion, that is not the correct view under the Constitution. Thereference is answered accordingly.

43. We also expect that the statutory instruments of the respectiveState Governments providing for such separate channel of entry shouldmake minimum service in rural or remote or difficult areas for aspecified period mandatory before candidate could seek admissionthrough such separate channel and also subsequent to obtaining thedegree. On completion of the course, to ensure the successfulcandidates serve in such areas, the State shall formulate policy ofmaking the in-service doctors who obtain entry in postgraduate medical

Adegree courses through independent in-service channel execute bondsfor such sum the respective States may consider fit and proper.

44. So far as the appeals against the judgment of the CalcuttaHigh Court are concerned, we are of the opinion that the judgment andorder of the High Court at Calcutta in MAT No.1222 of 2019 (Dr. Md.BBabul Akhtar and Ors. vs. Dr. Md. Nazir Hossain & Ors.) alongwith the allied appeals were not founded on proper interpretation oflaw for the reasons we have already discussed. We accordingly setaside the judgment under appeal, delivered on 1[st] October, 2019. Allthe appeals are accordingly allowed. The memorandum dated 18[th] April,2013 is restored and the writ petition filed in the High Court at CalcuttaC(W.P. No.8990(W) of 2019) shall stand dismissed. The writ petitionsfiled 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 of2018 shall stand allowed in the above terms.45. We, however, direct that the doctors who are alreadyDundergoing the postgraduate degree courses on the basis of beingsuccessful in the original writ petition filed in the High Court at Calcuttashall not be disturbed from pursuing the said course. The same directionshall also cover successful medical students who have alreadyundertaken admission in postgraduate medical degree courses followingthe applicable admission process and are pursuing their postgraduateEstudies in the States of Gujarat, Haryana, Kerala, Maharashtra andTamil Nadu.

46. All connected applications shall stand disposed of. Interimorders, if any shall stand dissolved.

47. There shall be no order as to costs.F

Kalpana K. Tripathy

Matters disposed of.