SATYAPRATA SAHOO & ORS.versusSTATE OF ORISSA & ORS.

                        [2012] 10 S.C.R. 204

A                  SATYAPRATA SAHOO & ORS.
                                   v.
                     STATE OF ORISSA & ORS.
                 (Civil Appeal Nos.5705-06 of 2012)
                          AUGUST 3, 2012
B
        [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.J

          Education - Medical College - Admission/Entrance to
    PG Medical courses - State of Odisha - Seats earmarked
C   for in-service category candidates - Weightage marks to in-
    service category candidates applying through the direct
    category route who had rendered service in rural/tribal/
    backward areas - Challenged - Held: If on the strength of
    such weightage, the in-service candidates encroach upon the
D   open category, i.e direct admission category, then such
    encroachment or inroad or appropriation of seats earmarked
    for open category candidates (direct admission category)
    would definitely affect the candidates who compete strictly on
    the basis of the merit - Purpose and object for giving
E   weightage to in-service candidates who have rendered rural/
    tribal service is laudable, but they have to come through the
    proper channel i.e. the channel exclusively earmarked for in-
    service candidates and not through the channel earmarked
    for candidates in the open category - Further, seats
F   earmarked for the open category by way of merit were few in
    number and encroachment by the in-service candidates into
    the open category would violate clause 9(1)(a) of the MCI
    regulations, which says students for PG medical courses shall
    be selected strictly on the basis of the inter se academic merit
G   i.e. on the basis of the merit determined by the competent test
    - Candidates of in-service category cannot encroach upon
    the open category, so also vice-versa - In view of the stand
    taken by the Medical Council of India that seats for post-
    graduate courses cannot be increased, direction given to the

H                                204
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 205
                 & ORS.
State of Odisha or their undertakings to take back the in-       A
service candidates into their service and permit them to serve
in the rural/tribal areas so that they can compete through the
category of in-se;vice candidates in the 50% seats earmarked
for them - The State of Odisha, the Medical Council of India
and respondents 1 to 4 directed to take urgent steps to re-      B
arrange the merit list and to fill up the seats of the direct
category, excluding in-service candidates who got admission
in the open category on the strength of said weightage, and
give admission to the open category candidates strictly on the
basis of merit - Postgraduate Medical Education                  c
Regulations, 2000 - Clause 9(2)(d), third proviso - Indian
Medical Council Act, 1956 - ss. 10-A and 11 (2).

     The appellants had appeared in the entrance
examination as 'direct candidates' (Open Category) and
qualified purely on merit for admission to Post-Graduate         D
(Medical) Selection 2012, Odisha in the Government
Medical Colleges in Odisha. The Prospectus for Post-
Graduate (Medical) Selection, 2012, Odisha dealt with
availability of seats both in the category of direct as well
as in-service candidates. Clause 11.2 of the Prospectus          E
stipulated additional weightage for candidates who were
in employment of Government of Odisha/Government of
Odis ha undertaking/Government. of India Public
Undertaking located in Odisha and had worked in Rural/
Tribal/Backward areas while applying through the                 F
category of direct candidates.

     The appellants challenged the validity of Clause 11.2
of the Prospectus submitting that it was violative of Article
14 of the Constitution; and also prayed for quashing the         G
Medical Council of India ('MCI') Notification No. 51210 of
17 .11.2009 (which provided weightage marks to in-
service candidates applying through the direct category)
on the ground that it was a clear encroachment and
appropriation of seats earmarked for the direct category         H
    206      SUPREME COURT REPORTS            [2012) 10 S.C.R.


A candidates to be filled up purely on merit, subject to rule
  of reservation. The appellants' challenge was repelled by
  the single Judge of the High Court as well as the Division
  Bench and therefore the instant appeals.

8      The main controversy in this case is whether
  candidates from direct admission category have to be
  selected strictly on the basis of their inter-se academic
  merit or whether it is legal to dilute the merit to the extent
  as indicated in the third Proviso to Clause 9(2)(d) of the
C Postgraduate Medical Education Regulations, 2000. By
  virtue of third proviso to Clause 9(2)(d) and clause 11.2
  of the Prospectus, candidates who fall under the in-
  service category are given a weightage through which
  they can make an in-road into the direct candidates
  category while retaining their rights to get admission for
D P.G. Course through in-service category.

       The appellants lament that already 66% reservation
  is there in the State for P.G. Admissions, including all
  reservations and only 34% seats are available for direct
E unreserved category on merit and if third proviso to
  Clause 9(2)(d) of the M.C.I. Regulation and Clause 11.2 of
  the Prospectus are given effect to, then those seats
  would be occupied by the in-service candidates large in
  number and candidates who comes strictly on the basis
F of merit through the competitive examination will have to
  stand out.

          Allowing the appeals, the Court
       HELD: 1.1. This Court in various judgments has
G acknowledged the fact that weightage could be given for
  doctors who have rendered service in rural/tribal areas
  but that weightage is available only in in-service category,
  to which 50% seats for PG admission has already been
  earmarked. If on the strength of that weightage, they
H encroach upon the open category, i.e direct admission
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 207
                 & ORS.
category, then such encroachment or inroad or                A
appropriation of seats earmarked for open category
candidates (direct admission category) would definitely
affect the candidates who compete strictly on the basis
of the merit. (Para 23] (223-E-F]
                                                             B
     1.2. The purpose and object for giving weightage to
in-service candidates who have rendered rural/tribal
service is laudable and their interest has been taken care
of by the Medical Council of India as well as the
prospectus issued for admission to the various medical       C
colleges in State of Odisha but they have to come
through the proper channel i.e. the channel exclusively
earmarked for in-service candidates and not through the
channel earmarked for candidates in the open category.
The in-service candidates are also free to compete
through the open category just like any other who fall       D
under that category. Further, those who get admission in
post graduate courses through the open category have
to execute a bond stating that they would serve rural/
tribal areas after completion of their post-graduation. In
fact, weightage is given to those candidates who have        E
rendered service in rural/tribal areas when they compete
for admission to PG (Medical) Courses in in-service
category for whom 50% seats are earmarked. (Para 24]
(223-G-H; 224-A-C]
                                                             F
    1.3. There is another fallacy in Clause 11.2 read with
Clause 6.2.1 of the prospectus. Clause 6.2.1 of the
prospectus says in-service candidate is one who at the
time of application is in the employment in Government
of Odisha and has completed a length of 5 years of           G
service which include all categories of employment like
contractual/temporary/ad-hoc/regular by 31st December
2011. Therefore, a doctor who is doing rural service on
contract or on temporary basis or on ad hoc basis by 31st
December 2011 will also get the benefit. At the same time,
                                                             H
    208     SUPREME COURT REPORTS            [2012] 10 S.C.R.

A the candidates who pass out MBBS either in regular
  service or in contractual I temporary/ ad hoc in a private
  hospital even though serving in a remote/tribal areas
  would not get that benefit even though those doctors are
  also rendering the same service. Every doctor who goes
B out of medical college after MBBS would not get an
  opportunity to serve in a rural/ tribal area by way of
  contractual/temporary/ad-hoc or regular service offered
  by the State of Odisha or a public sector. Few may fall in
  that category for various reasons and they get an
c advantage and those who get that advantage of course
  can, claim weightage when they are being considered in
  the in-service category. [Para 25] [224-D-G]
         1.4. Further, the seats earmarked for the open
    category by way of merit are few in number and
D   encroachment by the in-service candidates into that open
    category would violate clause 9(1 )(a) of the MCI
    regulations, which says students for PG medical courses
    shall be selected strictly on the basis of the inter se
    academic merit i.e. on the basis of the merit determined
E   by the competent test. Direct category or open category
    is a homogeneous class which consists of all categories
    of candidates who are fresh from college, who have
    rendered service after MBBS in Government or private
    hospitals in remote and difficult areas like hilly areas,
F   tribal and rural areas and so on. All of them have to
    complete on merit being in the direct candidate category,
    subject to rules of reservation and eligibility. But there
    can be no encroachment from one category to another.
    Candidates of in-service category cannot encroach upon
G   the open category, S.P also vice-versa. [Para 26] [224-H;
    225-A-D]
      1.5. Except State of Odisha and, to some extent, State
  of Tamil Nadu, none of the other States in India, has
  incorporated such a clause in any of their prospectus for
H admission to the graduate medical courses and students
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 209
                 & ORS.
who fall under the open category in those States are,            A
therefore, not affected by such weightage. [Para 27) [225-
D-E]

     State of M.P. & Ors. v. Gopa/ D. Tirthani & Ors. (2003) 7
SCC 83: 2003 (1) Suppl. SCR 797; Dr. Snehelata Patnaik           B
& Ors. v. State of Orissa & Ors. (1992) 2 SCC 26: 1992 (1)
SCR ~35; State of U.P. and Others. v. PradiP. Tandon and
Others. (1975) 1 SCC 267: 1975 (2) SCR 761 Dinesh Kumar
(Dr.) (II) v. Moti/al Nehru Medical College (1986) 3 SCC 727:
1986 ( 3) SCR 345 - referred to.
                                                                 c
     2.1. The question is how to mould the reliefs,
especially when one cannot, in the facts and
circumstance of the case, direct the State of Odisha and
the Medical Council of India to increase the seats so as
to accommodate the appellants. Section 1OA of the MCI            D
Act provides that admissions can be made by Medical
Colleges only within sanctioned capacity for which
permission under Section 10A/recognition under Section
11 (2) has been granted. Seats which are legitimately due
to the appellants are being occupied by the candidates           E
from in-service category. Though it would not be possible
to increase the seats, however, candidates who are
meritorious should get admission. [Paras 28, 31 and 32)
[225-F; 226-G; 227-B]

     2.2. Too appellants had approached the High Court           F
of Orissa on 13.01.2012 i.e soon after the prospectus was
issued and the declaration of the provisional merit list
took place on 10.04.2012 subsequent to the filing of the
writ petition. The Single Judge rendered the judgment
before the results were declared on 23.03.2012 and the           G
Division Bench dismissed the appeal on 09.04.2012. The
first counseling was conducted between 21.04.2012 to
23.04.2012. Since the appellants had approached the
court on 13.01.2012 and the matter was sub judice before
a court of law and this proceeding is only a continuation        H
   210      SUPREME COURT REPORTS             [2012) 10 S.C.R.

A of the writ petition filed by them on 13.01.2012, the
  admissions given to the in-service candidates necessarily
  would be subject to the outcome of the petitions pending
  before the court of law. Therefore, non-impleadment of
  few of those candidates in these proceedings would not
s affect the legitimate claim raised by the appellants. [Para
  33] [227 -C-F]

       2.3. The contesting respondents submitted that they
  are undergoing studies from May 2012 onwards and, at
C this distance of time, if they are displaced, that will cause
  serious injustice to them since they have already left the
  government service/public sector undertakings for
  joining the post graduate course. In view of the stand
  taken by the Medical Council of India that seats for post-
  graduate courses cannot be increased, direction is given
D to the State of Odisha or their undertakings to take back
  the in-service candidates into their service and permit
  them to serve in the rural/tribal areas so that they can
  compete through the category of in-service candidates
  in the 50% seats earmarked for them for admission to the
E post-graduate course. [Para 34] [227-G-H; 228-A-B]

       State of Punjab and Others v. Renuka Sing/a and Others
  (1994) 1 SCC 175: 1993 (3) Suppl. SCR 866; Medical
  Council of India v. State of Karnataka (1998) 6 SCC 131:
F 1998 (3) SCR 740; Mriduldhar (Minor) and another v. Union
  of India and Others (2005) 2 SCC 65: 2005 (1) SCR 380 -
   referred to.
      3. This Court is inclined to set aside the judgment of
  the Division Bench as well as Single Judge by quashing
G the proviso to clause 9(2)(d) of the MCI regulations to the
  extent indicated above as well as clause 11.2 of the
  prospectus issued for admission to the Post Graduate
  Medical Examination 2012 in the State of Odisha. The
  State of Odisha, the Medical Council of India and
H respondents 1 to 4 are directed to take urgent steps to
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 211
                 & ORS.
re-arrange the merit list and to fill up the seats of the     A
direct category, excluding in-service candidates who got
admission in the open category on the strength of
weightage, within a period of one week and give
admission to the open category candidates strictly on the
basis of merit. [Para 35] [228-C-D]                           B

                    Case Law Reference:
  2003 (1) Suppl. SCR 797 referred to      Paras 4,8,20,
                                                  21,22
  1992 (1) SCR 335           referred to   Paras 4, 22        c
  1975 (2) SCR 761           referred to   Para 22
  1986 (3) SCR 345           referred to   Para 22
  1993 (3) Suppl. SCR 866referred to       Para 28            D
  1998 (3) SCR 740           referred to   Para 29
  2005 (1) SCR 380           referred to   Para 30
    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.          E
5705-5706 of 2012.

    From the Judgment & Order dated 9.4.2012 of the High
Court of Orissa at Cuttack in W.A. No. 120 and 121 of 2012.

    Shyam Diwan, lndu Malhotra, Amarjit Singh Bedi, Avijit    F
Patnaik, Neha Kapoor for the Appellants.

      Krishnan Venugopal, Nidesh Gupta, Kaushik Mishra,
Jayant Mohan, Amit Kumar, Atul Kumar, Rekha Bakshi, Avijit
Mani Tripathi, Sanjeeb Panigrahi, L. Nidhiram Sharma,         G
Siddhartha Chowdhury, Somanath Padhan, Anagha S. Desai,
Kirti Renu Mishra, Apurva Upmanyu for the Respondents.

    The Judgment of the Court was delivered by

    K.S. RADHAKRISHNAN, J. 1. Leave granted.                  H
    212      SUPREME COURT REPORTS                [2012] 10 S.C.R.


A        2. The appellants, who have appeared in the Entrance
    Examination for Post-Graduate (Medical) Selection 2012,
    Odisha are challenging the validity of Clause 11.2 of the
    Prospectus for selection of candidates for Post-Graduate
    (Medical) Courses in the Government Medical Colleges of
B   Odisha for the Academic Year, 2012, as violative of Article 14
    of the Constitution of India.

         3. The appellants appeared in the entrance examination
    as 'direct candidates' (Open Category) and have qualified
    purely on merit for admission to Post Graduate (Medical)
C   Courses 2012 in the Government Medical Colleges in Odisha.
    The Prospectus issued for Post-Graduate (Medical) Selection,
    2012, Odisha deals with the availability of the seats both in the
    category of direct as well as in-service. Clause 4 of the
    Prospectus gives the category-wise details of the seats for P.G.
D   (Medical) Courses in three Government Medical Colleges in
    Odisha for the Academic Year 2012. For the category MD/MS
    Course, in-service category, 87 seats are available and for
    direct category, 86 seats are available, totaling 173 seats.
    Appellants, who fall under the category of direct candidates, as
E   already indicated, are aggrieved by Clause 11.2 of the
    Prospectus which stipulates an additional weightage for
    candidates who are in employment of Government of Odisha/
    Government of Odisha undertaking I Government of India Public
    Undertaking located in Odisha and had worked in Rural/Tribal/
F   Backward areas while applying through the category of direct
    candidates. Additional weightage of 10% of marks secured in
    the P.G. Entrance Examination per year of completion of
    service in Rural/Tribal/Backward areas, subject to the
    maximum of 30% of marks secured in the entrance
G   examination, in service to be given to those candidates who
    apply through direct category.

           4. Appellants submit that the above clause is wholly
    arbitrary, discriminatory and goes contrary to the ratio laid down
    by this Court in State of M.P. & Ors. V. Gopal D. Tirlhani &
H
  SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 213
        & ORS. [K.S. RADHAKRISHNAN, J.]
  Ors. (2003) 7 SCC 83 and Dr. Snehelata Patnaik & Ors. V.              A
  State of Orissa & Ors. (1992) 2 SCC 26. Appellants have also
  prayed for quashing the Medical Council'.of India (in short 'MCI')
  Notification No. 51210 of 17 .11.2009·. providing weightage
  marks to in-service candidates applying through the direct
  category, which according to the appellants, is a clear               B
  encroachment and appropriation of seats earmarked for the
  direct category candidates which has to be filled up purely on
  merit, subject to rule of reservation. Appellants' challenge was
  repelled by the learned single Judge of the Orissa High Court
  as well as the Division Bench: Hence, the~e aP.Peals.                 c
                                               I     ,

        5. Shri Shyam Diwan, learned senior ccwnsel appearing
• for the appellants submits that providing additional weightage
  marks to in-service candidates who had rtit:idered
                                                 ....      service in
  Rural/Tribal/Backward areas while corl$idering their
  applications for admission through the direct candidate               D
  category amounts to making an artificial differentiation between
  a homogenous class i.e. direct candidates and in-service
  candidates. Learned senior counsel pointed out that on account
  of additional weightage benefit given to the doctors who have
  rendered less than five years of service in Rural/Tribal/Backward     E
  areas both in Government of Odisha or Public Sector
  Undertakings owned by the State Government, will be an
  advantageous position and that would amount to drawing
  an artificial differentiation between a homogeneous class i.e.
  direct candidates and in-service candidates and also within the       F
  in-service candidates, which action would be hit by Article 14
  of the Constitution of India .
                       •
       6. Learned senior counsel also pointed out that the same
  further amounts to providing horizontal reservation within the        G
  seats meant for in-service candidates. Learned senior counsel
  pointed out that the admission through direct candidates route
  be made purely on merit on the basis of the common entrance
  examination and not on the basis of the additional weightage
  granted to a few doctors who had the advantage of serving in          H
    214      SUPREME COURT REPORTS                [2012] 10 S.C.R.


A   Rural/Tribal/Backward areas while in employment in
    Government of Orissa, Public Sector Undertakings owned by
    the State Government.

        7. Mrs. lndu Malhotra, learned senior counsel, also
B submitted that such candidates can always come through the
  in-service category, a normal route for admission to PG
  (Medical) Course. Learned senior counsel pointed out that
  additional weightage is always available to them when they
  come through the in-service category route, however, the same
  cannot be extended to them while applying for admission as
C direct category candidates, lest they may make an inroad into
  the direct category, which is arbitrary, discriminatory and
  violative of Article 14 of the Constitution of India.

          8. Shri Krishnan Venugopal, learned senior counsel
D   contesting on behalf of the respondents, on the other hand,
    submitted that there is no illegality in Clause 11.2 of the
    Prospectus which gives additional weightage to in-service
    candidates who fall under the direct candidates route, as well
    as third proviso added after clause 9(2)(d) of the Post Graduate
E   Medical Education (Amendment) Regulations 2000 as
    amended by Post Graduate Medical Education (Amendment)
    Regulation 2009 (Part II) vide Notification dated 17.11.2009.
    Learned senior counsel pointed out that classification of
    candidates as per Clause 6 and sub-clauses providing
F   weightage marks to such in-service candidates as per Clause
    11.2 of the Prospectus, cannot be termed as discrimination
    between direct and in-service candidates and amongst the in-
    service candidates. Learned senior counsel also pointed out
    that the weightage marks given to in-service candidates who
G   have rendered service in Rural/Tribal/Backward areas and
    qualified in the entrance examination, cannot be termed as
    "horizontal reservation" as it is only the weightage of marks
    given for rendering service to the people in Rural/Tribal/
    Backward areas, in view of the law laid down by this Court in
H   Gopa/ D. Tirthani (supra).
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 215
      & ORS. [K.S. RADHAKRISHNAN, J.]
      9. Shri Kirti R. Mishra, learned senior counsel appearing      A
on behalf of the 4th respondent, submitted that the prospectus
has been issued strictly in accordance with the Notification No.
51210 dated 17.11.2009 issued by the Medical Council of
India, whereby additional weightage marks given as an
incentive for determining the merit in the entrance examination      B
passed for P.G. admission. Learned senior counsel submitted
that the weightage in marks is given as an incentive at the rate
of 10% of the marks obtained up to maximum of 30% of the
marks obtained for each year of service rendered in remote
or difficult areas. It was also pointed out that the additional      c
benefit is an incentive only and by awarding such an incentive,
there is no violation of Article 14 of the Constitution of India.

     10. Learned counsel appearing for the MCI referred to the
counter affidavit filed on its behalf and submitted that the third
proviso to Regulation 9(2)(d) of the Post Graduation                 D
Regulation, 2000 (as amended) does not provide for or
contemplate any separate channel of entry for in service
candidates in admission to P.G. Degree Courses like that
provided for P.G. Diploma Courses. The proviso only provides
that a weightage may be given at the rate of 10% of the marks        E
obtained for each year in service in remote or difficult areas
upto the maximum of 30% of the marks obtained in the entrance
examination and has secured minimum required percentage
of marks for government service rendered in remote/difficult
areas.                                                               F
    We heard counsels on either side at length.

      11. Medical Council of India, in exercise of its powers
conferred by Section 33 read with Section 20 of the Indian
Medical Council Act, 1956, framed the Postgraduate Medical           G
Education Regulations, 2000. Clause 9 of the Regulations
2000 deals with the selection of the postgraduate students.
Clause 9(1) was substituted in terms of Notification published
in the Gazette of India on 20.10.2008 and the same now reads
as follows:                                                          H
    216      SUPREME COURT REPORTS                   [2012] 10 S.C.R.


A               "9(1){a} Students for Post Graduate medical courses
          shall be selected strictly on the basis of their lnter-se
          Academic Merit.

                (b) 50% of the seats in Post Graduate Diploma
          Courses shall be reserved for Medical Officers in the
B
          Government service, who have served at least three years
          in remote and difficult areas. After acquiring the PG
          Diploma, the Medical Officers shall serve for two more
          years in remote and/or difficult areas."

C      12. Clauses 9(1)(a) and 9(1)(b) when read together would
  indicate that 50% seats are earmarked for direct category
  candidates and 50% seats are earmarked for in service
  category. Clause 9(1 )(a) clearly states that students for post
  graduate medical courses shall be selected strictly on the basis
D of their inter-se academic merit and Rule 9(1)(b) states that
  50% of the seats stand reserved for in service candidates who
  have at least three years service in remote and difficult areas.

       13. The methodology to be adopted for determining
E academic merit is provided in Clause 9(2), which is relevant
  for our purpose and hence extracted hereunder:

               "9(2) For determining the 'Academic Merit', the
          University/Institution may adopt the following methodology:-

F          (a)   On the basis of merit as determined by a
                 'competitive test' conducted by the state
                 government or by the competent authority ~ppointed
                 by the state government or by the university/group
                 of universities in the same state; or
G          (b)   On the basis of merit as determined by a
                 centralized competitive test held at the national level; ,
                 or

           (c)   On the basis of the individual cumulative
H                performance at the first, second and third MBBS
  SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 217
        & ORS. [K.S. RADHAKRISHNAN, J.)
             examinations provided admissions are University          A
             wise. Or

      (d) Combination of (a) and (c)

            Provided that wherever 'Entrance Test' for
      postgraduates admission is held by a state government           8
      or a university or any other authorized examining body, the
      minimum percentage of marks for eligibility for admission
      to postgraduate medical course shall be 50 percent for
      general category candidates and 40 percent for the
      candidates belonging to Scheduled Castes, Scheduled             C
      Tribes and Other Backward Classes.

             Provided further that in Non-Governmental institutions
      fifty percent of the total seats shall be filled by the
      competent authority notified by the State Government and        o
      the remaining fifty percent by the management(s) of the
      institution on the basis of lnter-se Academic Merit."

     14. However, the following proviso was added after clause
 9(2)(d) in terms of Gazette Notification published on
 17.11.2009 and the same reads as follows:                            E

            "Further provided that in determining the merit and
      the entrance test for postgraduate admission weightage
      in the marks may be given as an incentive at the rate of
      10% of the marks obtained for each year in service in           F
      remote or difficult areas upto the maximum of 30% of the
      marks obtained."

        15. Above Clause 9, therefore, stipulates the methodology
  to be adopted for determining the inter-se academic merit of        G
  candidates who fall under direct category and of those
  candidates who ultimately fall under 50% seats reserved for in-
1 service candidates. Clause 9(1 )(a) clearly stipulates that
  students for postgraduate medical courses shall be selected
  strictly on the basis of "inter-se academic merit". The main
                                                                      H
    218       SUPREME COURT REPORTS                [2012] 10 S.C.R.


A   controversy in this case is whether the candidates from direct
    admission category has to be selected strictly on the basis of
    their inter-se academic merit or whether it is legal to dilute the
    merit to the extent as indicated in the third Proviso to Clause
    9(2)(d). Candidates who fall in the direct candidates category,
B whether they are fresh from the college or serving elsewhere,
    either on Government service or under public-sector
    undertakings, working in rural/Tribal area or otherwise or
    doctors who are serving in private hospitals or nursing homes
  · etc. situate in remote or difficult area, all fall in that direct
c category and all of them have to take a common entrance
    examination and admission criteria is only comparative merit.
    When the comparative merit is the only criteria in the open
    category, the question is whether a weightage can be given
    exclusively to those candidates who are in service of State of
    Odisha/Government of Odisha undertaking, whether
0
    contractual/temporary/ad-hoc/regular on the ground that they
    had worked in rural/tribal/backward areas. It may be noted that
    50% seats have already been earmarked for such category of
    candidates which they can always claim depending upon the
E inter-se merit after complying with other eligibility criteria.
    Question is whether those in-service candidates can
    appropriate seats from the open category where seats are only
    few.

      16. Clause 11.2 in the Prospectus issued by the P.G.
F (Medical) Selection Committee 2012, giving additional
  weightage to those in-service candidates, reads as follows:

                 "11.2 Those in-service candidates who have
          qualified in the Entrance Examination and worked in Rural/
          Tribal/Backward areas shall be awarded an additional
G
          weightage of 10% of the marks secured in the P.G.
          Entrance Examination per year of completion service (in
          Rural/Tribal/Backward areas), subject to maximum of 30%
          of marks secured in entrance examination, vide MCI
          Notification No.51210/ dt.17.11.2009 (In Form
H         No.Appendix-1 ll(A)) ."
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 219
      & ORS. [K.S. RADHAKRISHNAN, J.]
    Candidates fall under the Direct Category is provided           A
under Clause 6 of the Prospectus, which reads as follows:

    "6. CA TE GORY OF CANDIDA TES:

    6.1. A Direct Candidate is one who at the time of
    application:                                                    B

    6.1.1 Is son/daughter/spouse of a person who has served
    in Defence Service for minimum of 5 years by 31st
    December, 2011.

    6: 1.2 Is either unemployed or in the employment of
                                                                    c
    Government of Odisha, but not completed five years of
    service which includes all categories of employment like
    contractual/temporary/ad-hoc/regular by 31st December,
    2011
                                                                    D
    6.1.3 in the employment of Govt. of Orissa Public Sector
    Undertaking/Govt. of India Public Sector Undeftaking
    located in Odisha. The employer has to sponsor the
    candidates for entire period & must submit the
    sponsorship certificate as in Appendix Ill."                    E

    Clause 6.2 deals with In-service candidate which reads as
    follows:

    "6.2 An ln-seNice candidate is one who at the time of
    application:                                                    F

    6.2.1 Is in the employment of Government of Odisha and
    has completed a length of 5 years of service which includes
    all categories of employment like contractual/temporary/
    ad-hoc/ regular by 31st December, 2011, excluding at-a-         G
    stretch leave of any kind, of 30 days or more. However,
    the maternity leave is exempted from this exclusion and
    shall be counted towards the length of five years of service.

    Note: In-service and Direct candidates in employment            H
    220          SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A           under Government of Odisha at the time of application are
            advised to submit their applications along with the
            required documents directly to the Convenor, P.G.
            (Medical) Selection Committee - 2012, under intimation
            to their Employer. Copy of such intimation is to be
B           attached."

       17. Clauses 6.1, 6.2 and 11.2, quoted above, clearly
  recognize two categories of candidates i.e. "direct" and "in-
  service". "Direct" is a very wide category (open category) where
  students for P.G. Medical Courses shall be selected strictly on
C the basis of inter-se academic merit, as determined by a
  competitive test and in-service is a restricted category of
  candidates who are in service of the State Government/State
  owned undertakings. The details of the availability of seats are
  provided in Clause 4 of the prospectus which is as follows:
D
                  "Category-wise Distribution of Seats

    Category      Unre-                                           Total
    MD/MS         served
E   Course
                            ST      SC     PH    Defence Green-
                           (12%)   (8%)   (3%)    (3%)    card
                                                          (5%)
    In-service    62       10      7      3        0        5     87
F   Direct        59       11      7      2        3        4     86
    Total         121      21      14     5        3        9     173


       18. Seats in the direct category are also reserved for
  members of SC/ST communities and also to those. SC/ST
G candidates migrated from their state of origin subject tci certain
  conditions. Clause 6.4 reserves seats for children or spouse
  of service/Ex-service personnel (Defence). Clause 6.5 states
  that seats are reserved for physically handicapped candidates
  also subject to rules governing them. In other wo.rds, several
H
  SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 221
        & ORS. [K.S. RADHAKRISHNAN, J.]

 reserved candidates have also to be accommodated in the               A
 50% Open Category. 50% seats ear marked for the in-service
 candidates is kept intact, for which in-service candidates can
 always aspire and if they satisfy the condition of ruralffribal
 service, they will definitely get weightage.
                                                                       B
      19. N<?w by virtue of third proviso to Clause 9(2}(d} and
 clause 11.2 of the Prospectus candidates who fall under the
 in-service category are given a weightage through Which they
 can make an in-road into the direct candidates category while
 retaining their rights to get admission for P ..G. Course through     C
 in-service category. Appellants lament that already 66%
 reservation is there in the State for P.G. Admissions, including
 all reservations and only 34% seats are available for direct
 unreserved category on merit and if third proviso to Clause
 9(2}(d} of the M.C.I. Regulation and Clause 11.2 of the
 Prospectus are given effect to then those seats would be              0
 occupied by the in-service candidates large in number and
 candidates who comes strictly on the basis of merit through the
 competitive examination will have to stand out.

        20. This Court in Gopa/ D. Tirthani (supra} upheld the         E
  allocation of 20% seats for in-service candidates and held that
  weightage can be given to in-service candidates for their
· having rendered specified number of years of service in rural/
  tribal areas which is not hit by Article 14 of the Constitution of
  India. This Court held that allocation of 20% of seats in Post       F
  Graduation in the University of Madhya Pradesh for in-service
  candidate is not a reservation, it is a separate and exclusive
  channel of entry or source of admission, validity thereof cannot
  be determined on the constitutional principles applicable to
  communal reservations. Having so said, the Court held as             G
  follows:

            "33 .......... Firstly, it is a case of post-graduation
      within the State and not an All-India quota. Secondly, it is
      not a case of reservation, but one of only assigning
      weightage for service rendered in rural/tribal areas. Thirdly,   H
    222       SUPREME COURT REPORTS                [2012] 10 S.C.R.


A         on the view of the law we have taken hereinabove, the
          assigning of weightage for service rendered in rural/tribal
          area does not at all affect in any manner the candidates
          • open category .............. .
          m                            II




       21. Therefore, in Tirthani case, it has' been categorically
8
  held that it is permissible to assign a reasonable weightage to
  services rendered in rural/tribal areas by the in-service
  candidates for the purpose of determining inter se merit within
  the class of in-service candidates who have qualified in the pre-
  PG test by securing the minimum qualifying marks as
C prescribed by the Medical Council of India. Regulation 9 framed
  by the Medical Council of India was also noticed by this Court
  so also the existence of two categories: (1) direct category
  (open category) candidates and (2) in-service category
  candidates. Weightage given for rendering service in rural/tribal
D areas, so far as in-service candidates, was upheld noticing that
  the assigning of weightage for service rendered in rural/tribal
  areas would not affect in any manner the candidates in open
  category.

E       22. We may, in this connection, refer to few earlier
  judgments in the matter of giving weightage to in-service
  candidates although those decisions were also considered in
   Tirthani case. In State of UP. and Others. v. Pradip Tandon
  and Others. (1975) 1 sec 267, reservation in favour of people·
F in "hill areas" and Uttarakhand was held to be constitutionally
  valid as they were socially and educationally backward classes
  of citizens. Reservation in favour of "rural areas" was found
  difficult to accept as it was sought to be justified on the test of
  poverty as the determining factor of social backwardness. This
G Court held that rural element did not make a class by itself
  because it could not be accepted that the rural people were
  necessarily poor or socially and educationally backward just as
  the urban people were not necessarily rich. What was being
  dealt with in Pradip Tandon case was a reservation and not a
H weightage. Later in Dinesh Kumar (Dr.) (II) v. Motila/ Nehru
 SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 223
       & ORS. [K.S. RADHAKRISHNAN, J.]

Medical College (1986) 3 SCC 727, the two-Judges Bench                A
examined a scheme of examination for admission to
postgraduate courses suggested by the Government of India
stipulating a weightage equivalent to 15 per cent of the total
marks obtained by a student at the All-India Entrance
Examination, being given if he had put in a minimum of 3 years        B
of rural service. In that case, of course, this Court observed that
it was eminently desirable that some incentive should be given
to the doctors to go to the rural areas because there was
concentration of doctors in the urban areas and the rural areas
appeared to be neglected. The observation made in Dinesh              c
Kumar case was considered by three-Judges Bench of this
Court in Dr. Snehelata Patnaik (supra) and this Court opined
that the authorities might well consider giving weightage upto
maximum of 5 per cent of marks in favour of in-service
candidates who had done rural service for five years or more,
                                                                      0
the determination of which have to be made by the authorities.

     23. We have referred to the above mentioned judgments
only to indicate the fact that this Court in various judgments has
acknowledged the fact that weightage could be given for
doctors who have rendered service in rural/tribal areas but that      E
weightage is available only in in-service category, to which 50%
seats for PG admission has already been earmarked. The
question is whether, on the strength of that weightage, can they
encroach upon the open category, i.e direct admission
category. We are of the view that such encroachment or inroad         F
or appropriation of seats earmarked for open category
candidates (direct admission category) would definitely affect
the candidates who compete strictly on the basis of the merit.

     24. The purpose and object for giving weightage to in-           G
service candidates who have rendered rural/tribal service is
laudable and their interest has been taken care of by the
Medical Council of India as well as the prospectus issued for
admission to the various medical colleges in State of Odisha
but they have to come through the proper channet i.e. the channel
                                                                      H
    224      SUPREME COURT REPORTS                (2012] 10 S.C.R.


A exclusively earmarked for in-service cal'ldidates and not through
  the channel earmarked for candidates ih the open category. The
  in-service candidates are also free to ~ompete through the open
  category just like any other who fall under that category. Further,
  it is also relevant to note those who get admission in post
B graduate courses through the open category have to execute
  a bond stating that they would serve rural/tribal areas after
  completion of their post-graduation. In fact, weightage is given
  to those candidates who have rendered service in rural/tribal
  areas when they compete for admission to PG (Medical)
C Courses in in-service categQ:(y for whom 50% seats are
  earmarked.

          25. We also find another f?llacy in Clause 11.2 read with
    Clause 6.2.1 of the prospectus... Clause 6.2.1 of the prospectus
    says in-service candidate is one    who at the time of application
D   is in the employment in Government of Odisha and has
    completed a length of 5 years of service which include all
    categories of employment like contractual/temporary/ad-hoc/
    regular by 31st December 2011. Therefore, a doctor who is
    doing rural service on contract or on temporary basis or on ad
E   hoc basis by 31st December 2011 will also get the benefit. At
    the same time, the candidates who pass out MBBS either in
    regular service or in contractual I temporary/ ad hoc in a private
    hospital even though serving in a remote/tribal areas would not
    get that benefit even though those doctors are also rendering
F   the same service. Every doctor who goes out of medical cotlege
    after MBBS would not get an opportunity to serve in a rural/
    tribal area by way of contractual/temporary/ad-hoc or regular
    service offered by the State of Odisha or a public sector. Few
    may fall in that category for various reasons and they get an
G   advantage and those who get that advantage of course can,
    claim weightage when they are being considered in the in-
    service category.

          26. We notice that the seats earmarked for the open
H
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 225
      & ORS. [K.S. RADHAKRISHNAN, J.]
category by way of merit are few in number and encroachment            A
by the in-service candidates into that open category would
violate clause 9(1 )(a) of the MCI regulations, which says
students for PG medical courses shall be selected strictly on
the basis of the inter se academic merit i.e. on the basis of the
merit determined by the competent test. Direct category or open        B
category is a homogeneous class which consists of all
categories of candidates who are fresh from college, who have
rendered service after MBBS in Government or private
hospitals in remote and difficult areas like hilly areas, tribal and
rural areas and so on. All of them have to complete on merit           c
being in the direct candidate category, subject to rules of
reservation and eligibility. But there can be no encroachment
from one category to another. Candidates of in-service category
cannot encroach upon the open category, so also vice-versa.

      27. We find, except State of Odisha and, to some extent,         D
State of Tamil Nadu, none of the other States in India, has
incorporated such a clause in any of their prospectus for
admission to the graduate medical courses and students who
fall under the open category in those States are, therefore, not
affected by such weightage.                                            E

     28. Medical Council of India in the counter affidavit raised
some objections for giving admissions beyond the sanctioned
admission capacity. Reference was made to Section 1OA of
the MCI Act which provides that admissions can be made by              F
Medical Colleges only within sanctioned capacity for which
permission under Section 1QA/recognition under Section 11 (2)
has been granted. This Court in State of Punjab and Others
v. Renuka Sing/a and Others (1994) 1 SCC 175 held that the
High Court or the Supreme Court cannot be generous or liberal          G
in issuing such directions which in substance amount to
directing the authorities concerned to violate their own statutory
rules and regulations, in respect of admissions of students.
Technical education, including medical education, requires
infrastructure to cope with the requirement of giving proper           H
    226       SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A education to the students, who are admitted. Taking into
  consideration, the infrastructure, equipment, staff, the limit of the
  number of admissions is fixed by the Medical council of India.

      29. Further, in Medical Council of India v. State of
B Kamataka (1998) 6 SCC 131, this Court held the number of
  students admitted cannot be over and above that fixed by the
  Medical Council as per the Regulations and that seats in
  medical colleges cannot be increased indiscriminately without
  regard to proper infrastructure as per the Regulations of the
  Medical Council.
c
         30. In Mriduldhar (Minor) and another v. Union of
    lndiaand Others (2005) 2 SCC 65, this Court held as follows:

                 "Having regard to the professional courses into
D         consideration, it deserves to be emphasized that all
          concerned including Governments, State and Central both,
          MCl/DCI, colleges, new or old, students, Boards,
          universities, examining authorities etc. are required to
          strictly adhere to time schedule wherever provided for;
          there should not be mid-stream admission; admission
E
          should not be in excess of sanctioned intake capacity or
          in excess of quota of any one, whether Stare or
          Management. The carrying forward of any unfilled seats of
          one academic year to next academic year is also not
          permissible."
F
       31. It is unnecessary to multiply the judgment rendered by
  this Court, on this point, the question is how to mould the reliefs,
  especially when we cannot, in the facts and circumstance of the
  case, direct the State of Odisha and the Medical Council of
G India to increase the seats so as to accommodate the
  appellants. Seats which are legitimately due to the appellants
  are being occupied by the candidates from in-service category.

       32. Contention was raised by learned counsel, appearing
H for some of the in-service candidates who got admission that
SATYAPRATA SAHOO & ORS. v. STATE OF ORISSA 227
      & ORS. [K.S. RADHAKRISHNAN, J.]
they shall not be displaced since they have already left their jobs   A
from the State Government service or the State owned
undertakings after having got admission for P.G. (Medical)
Course. But, going by the stand taken by MCI and on the basis
of the decided cases of this Court, it would not be possible to
increase the seats, however, candidates who are meritorious           B
should get admission.

      33. Contention was raised that all the affected candidates
were not made parties to the writ petition and, therefore, without
hearing them, no orders shall be passed against them thereby
depriving them of their seats. Learned counsel for the appellants     C
has stated that they had approached the High Court of Orissa
on 13.01.2012 i.e sooh after the prospectus was issued and
the declaration of the provisional merit list took place on
10.04.2012 subsequent to the filing of the writ petition. Learned
Single Judge rendered the judgment before the results were            D
declared on 23.03.2012 and the Division Bench dismissed the
appeal on 09.04.2012. The first counseling was conducted
between 21.04.2012 to 23.04.2012. Since the appellants had
approached the court on 13.01.2012 and the matter was sub
judice before a court of law and this proceeding is only a            E
continuation of the writ petition filed by them on 13.01.2012, we
are, of the view, that the admissions given to the in-service
candidates necessarily would be subject to the outcome of the
petitions pending before the court of law. Therefore, in our view,
non-impleadment of few of those candidates in these                   F
proceedings would not affect the legitimate claim raised by the
appeJlants.
     -34. Learned counsel appearing for the contesting
respondents submitted that they are undergoing studies from           G
May 2012 onwards and, at this distance of time, if they are
displaced, that will cause serious injustice to them since they
have already left the government service/public sector
undertakings for joining the post graduate course. In view of the
stand taken by the Medical Council of India that seats for post-      H
    228      SUPREME COURT REPORTS              [2012] 10 S.C.R.


A graduate courses cannot be increased, we are inclined to give
  a direction to the State of Odisha or their undertakings to take
  back the in-service candidates into their service and permit
  them to serve in the rural/tribal areas so that they can compete
  through the category of in-service candidates in the 50% seats
B earmarked for them for admission to the post-graduate course.

       35. We are, therefore, inclined to allow this appeal and set
  aside the judgment of the Division Bench as well as learned
  Single Judge by quashing the proviso to clause 9(2)(d) of the
  MCI regulations to the extend indicated above as well as clause
C 11.2 of the prospectus issued for admission to the Post
  Graduate Medical Examination 2012 in the State of Odisha.
  The State of Odisha, the Medical Council of India and
  respondents 1 to 4 are directed to take urgent steps to re-
  arrange the merit list and to fill up the seats of the direct
D category, excluding in-service candidates who got admission
  in the open category on the strength of weightage, within a
  period of one week from today and give admission to the open
  category candidates strictly on the basis of merit.

E       36. Appeals are allowed and the judgments of the High
    Court are set aside accordingly.

    B.B.B.                                      Appeals allowed.