Supreme Court of India
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORSversusUNION OF INDIA & OTHERS
- Citation
- 2018 INSC 332
- Decided
- 31 August 2020
- Disposal
- Disposed off
- Bench
- ARUN MISHRA
Holding
State governments, under Entry 25 of List III, may reserve seats and create a separate source of entry for in‑service doctors in postgraduate medical degree courses, and Regulation 9 of the MCI Regulations does not invalidate such State measures.
Summary
The petitions challenged the validity of Regulation 9 of the Medical Council of India (MCI) Post‑Graduate Medical Education Regulations, 2000, alleging that it barred State governments from reserving seats for in‑service doctors in postgraduate degree courses. The Court examined the constitutional distribution of powers under Entry 66 of List I (coordination and determination of standards) and Entry 25 of List III (education, including medical education), and held that the MCI regulations only prescribe minimum standards and do not preclude States from creating a separate source of entry for in‑service candidates. It further found that the provision of weightage marks for service in remote areas is a permissible incentive, not a reservation, and that such classification satisfies the test of reasonable differentiation under Article 14. Consequently, the State’s power to reserve seats for in‑service doctors is constitutionally valid and the earlier judgments striking down such reservations were set aside. The Court allowed the appeals, restored the State orders, and directed that existing admissions not be disturbed.
Issues considered
- The scope of Entry 66 of List I and whether it exhausts the Union’s power over medical education standards
- Whether Regulation 9 of the MCI Regulations, 2000, bars State governments from providing a separate source of entry for in‑service doctors
- Whether the State’s reservation for in‑service doctors violates Articles 14, 19(1)(g) and 21 of the Constitution
- Whether Regulation 9 is a complete code that precludes any State legislation on admission procedures
Legislation cited
- Constitution of Indias. 14, s. 21, s. 245, s. 25, s. 254, s. 32, s. 47, s. 6, s. 66
- Indian Medical Council Act, 1956s. 20, s. 33
Subjects
ReservationIn‑service doctorsMedical Council of IndiaNEETEntry 66Entry 25Constitutional lawPublic healthArticle 14Article 21
Judgment
[2020] 8 S.C.R. 583 583
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. A
v.
UNION OF INDIA & OTHERS
(Writ Petition (Civil) No. 196 of 2018)
AUGUST 31, 2020 B
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Medical Council of India Post Graduate Medical Education
Regulations, 2000:
C
Regulations 9(IV) and (VII) (as it stood prior to 5 th April
2018) and 9(4) and (8) (as it stood after amendment dated 5 th April
2018) – Whether take away the power of State Governments to
reserve seats in Post-Graduate Medical degree courses for in-
service medical professionals – Held: Per Shah, J. – In exercise
D
of power under Entry 25 of List III of Seventh Schedule to the
Constitution, State has power with respect to reservation/ percentage
of reservation and/ or mode of admission within State quota –
Scope of Entry 66 of List I to Seventh Schedule is limited to
prescribe the standard of education – The source of power to
Medical Council of India (MCI) to frame Regulations is from s. E
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 away
power of States under Entry 25, List III, to provide separate source
of entry for in-service candidates – There is legitimate rational
F
basis in providing a separate source of entry to in-service
candidates – Such act of the State is in discharge of its
constitutional obligation provided u/Art. 47 which is corresponding
fundamental right u/Art. 21 of the Constitution – Therefore
Regulation 9, to the extent it tinkers with the reservation provided
by State to in-service doctors, is ultra vires on the ground that it is G
arbitrary, discriminatory and violative of Arts. 14 and 21 of
Constitution – However, the doctors who would obtain admission
through such separate channel, need to serve the State in rural,
tribal and hilly areas at least for five years after obtaining the
degree – Per Bose, J. – Allocation of seats for in-service candidates
H
583
584 SUPREME COURT REPORTS [2020] 8 S.C.R.
A is only a separate or exclusive source of admission which cannot
be equated with reservation provisions incorporated as
compensatory discrimination – The field of legislation in question
is shared field between Union and the State – In such case
legislative disability of the States would occur only when the Union
legislation covers the same subject on which State undertakes
B
legislative exercise and the State legislative instrument is found to
be repugnant – Such repugnancy has to be direct and positive –
There cannot be implied repugnancy – If certain area of legislative
entry is left void by Union, this void can be filled by the State
legislature – The Regulations in question, though a self-contained
C code are not an exhaustive code covering all the aspects of
admission in post-graduate medical degree courses – The provision
for reservation in clause 9(4) for in-service doctors by the State
from State-wise merit list, cannot be interpreted to mean that the
State is denuded of its power to make separate channel of
admission – There is no bar on the State Authorities to provide for
D
such reservation – Therefore, such reservation provided by the State
would not be contrary to the Regulations – The doctors in
employment form a separate and distinct class and hence can be
given certain element of preference – But to take benefit of such
separate entry channel, the aspiring in-service doctors must clear
E NEET Examination with minimum prescribed marks – In order to
avail the separate source of entry, the State should make a minimum
service in rural, remote or difficult areas for a specified period
before 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.
G 1.1. Entry 66 of List I of Seventh Schedule of the
Constitution is a specific entry having a very specific and limited
scope. It deals with “Coordination and Determination of
Standards” in institutions of higher education or research as well
as scientific and technical institutions. The words “Coordination
and Determination of Standards” would mean laying down the
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 585
UNION OF INDIA & OTHERS
said standards and therefore when it comes to prescribe the A
standards for such institutions of higher learning, exclusive
domain is given to the Union. That would not include conducting
of examination etc. and admission of students to such institutions
or prescribing the fee in these institutions of higher education,
etc. Thus, in exercise of powers under Entry 66 List I, the Union
B
cannot provide for anything with respect to reservation/
percentage of reservation and/or even mode of admission within
the State quota, which powers are conferred upon the States
under Entry 25 of List III. In exercise of powers under Entry
25 List III, the States have power to make provision for mode
of admissions, looking to the requirements and/or need in the C
concerned State. [Para 10.1][652-G-H; 653-A-C]
Modern Dental College and Research Centre and
Others v. State of Madhya Pradesh and Others (2016)
7 SCC 353 : [2016] 3 SCR 579 – followed.
Gujarat University v. Krishna Ranganath Mudholkar D
(1963) Suppl. 1 SCR 112 ; R. Chitralekha v. State of
Mysore [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 of
Maharashtra (2004) 11 SCC 755 : [2004] 2 SCR 775 E
– relied on.
1.2 Post Graduate Medical Education Regulations, 2000
are framed by the Medical Council of India (MCI) in exercise
of its powers conferred under Section 33 of the Indian Medical
Council Act, 1956 (MCI Act). The MCI Act has been enacted/ F
passed by the Union in exercise of powers conferred under Entry
66, List I. Therefore, the main source of power of the MCI would
be from Entry 66 List I. As per Section 33 of the MCI Act, the
Council may with the previous sanction of the Central
Government make regulations generally to carry out the
purpose of the said Act. Therefore, in exercise of powers under G
Section 33 of the MCI Act, Regulations 2000 are made by the
MCI. [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
H
586 SUPREME COURT REPORTS [2020] 8 S.C.R.
A (1984) 3 SCC 654 : [1984] 3 SCR 942 ; Dr. Dinesh
Kumar v. Motilal Nehru Medical College, Allahabad
(1986) 3 SCC 727 : [1986] 3 SCR 345 ; Gujarat
University 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 ;
B
Saurabh Chaudri v. Union of India (2003) 11 SCC 146
: [2003] 5 Suppl. SCR 152 ; Yatinkumar Jasubhai
Patel & Ors v. State of Gujarat and Ors (2019) 10
SCC 1 : [2019] 12 SCR 848 – relied on.
1.3 On a fair reading of entire Section 33 of the MCI Act,
C it does not confer any authority and/or power to the MCI to
frame the regulations with respect to reservation in the medical
courses, more particularly, to provide for a separate source of
entry for in-service candidates seeking admission to
postgraduate degree courses. [Para 11.3][660-B-C]
D 1.4 The first part of Regulation 9(IV) speaks for the
reservation of seats in medical colleges/institutions. It provides
that the reservation of seats in medical colleges/institutions for
respective categories shall be as per applicable laws prevailing
in States/Union Territories. It further provides for preparing all-
E India merit list as well as State-wise merit list of the eligible
candidates on the basis of the marks obtained in NEET and
candidates shall be admitted to postgraduate courses from the
said merit lists only. To that stage, it can be said that the same
is within the legislative competence of the Union/MCI, in
exercise of powers under Entry 66 List I. However, proviso to
F Regulation 9(IV) further provides that in determining the merit
of candidates who are in service of Government/public authority,
weightage in the marks may be given by the Government/
competent authority as an incentive at the rate of 10% of the
marks obtained for each year of service in remote and/or difficult
G areas up to the maximum of 30% of the marks obtained in NEET.
It further provides that the remote and difficult areas shall be
as defined by the State Government/competent authority from
time to time. Thus, it can be seen that even the proviso can be
said to be with respect to preparing the merit list only.
Regulation 9(IV) is limited only to reservation in favour of SC/
H ST/OBC and as per the prevailing laws in the States. If that be
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 587
UNION OF INDIA & OTHERS
so, then the proviso which as such is not dealing with the A
reservation cannot be said to be in the form of an exception to
first part of Regulation 9(IV) and it can be seen that it is an
independent provision dealing with the in-service candidates and
that too for the purpose of preparing the merit list. Thus, the
proviso becomes the substantive provision and is more
B
concerned with the marks to be allocated which is the concern
of Regulation 9(III). The proviso only enables the States by
conferring the discretion for weightage. The proviso has nothing
to do with the reservation in the postgraduate degree courses
and therefore it shall not negate the State’s power to make
reservation and/or make special provision to provide for a C
separate source of entry for in-service candidates seeking
admission to postgraduate degree courses. Thus, Regulation
9(IV) as such cannot be said to be taking away the power of the
States under Entry 25, List III, to provide for a separate source
of entry for in-service candidates seeking admission to
D
postgraduate degree courses. [Paras 12 and 12.1][660-F-H; 661-
A-F]
1.5 If it is construed that Regulation 9 of the MCI
Regulations, more particularly Regulation 9(IV) provides for
reservation and/or deals with the reservation for in-service
candidates, in that case, it will be beyond the legislative E
competence of the Union as well as it will be ultra vires the MCI
Act. Section 33 of the MCI Act does not confer any power on
the MCI to make regulations with respect to reservation.
“Institutional preference”, despite MCI Regulations has been
upheld and held to be permissible by the concerned States. F
[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 there
is a legitimate and rational basis in providing a separate channel/ G
source of entry for in-service candidates in order to encourage
them to offer their services and expertise to the State. There is
a sufficient nexus with the larger goal of equalization of
educational opportunities and to sufficiently prefer the doctors
serving in the various hospitals run and maintained out of public H
588 SUPREME COURT REPORTS [2020] 8 S.C.R.
A funds, in the absence of which there would be serious dearth of
qualified Post-graduate doctors to meet the requirements of the
common public. That the Government is facing public health
crisis. The effective and competent medical treatment is not
available in the rural and difficult areas. In-service doctors who
pursue higher studies would naturally serve in rural and difficult
B
areas 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 of
Madhya Pradesh & Ors v. Gopal D Tirthani and Ors
C (2003) 7 SCC 83 : [2003] 1 Suppl. SCR 797 ; Sudhir
N 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 SCC
749 : [2016] 6 SCR 571 – referred to.
D
2.2 The action of the State to provide for the in-service
quota is in the discharge of its positive constitutional obligations
to promote and provide better health care facilities for its
citizens by upgrading the qualifications of the existing in-service
doctors so that the citizens may get more specialized health care
E facility. Such action is in discharge of its constitutional obligations
as provided in Article 47 of the Constitution of India, which is
the corresponding fundamental right of the citizens protected
under Article 21 of the Constitution of India. It is settled law
that Article 21 of the Constitution of India confers on the citizens
F of India a fundamental right to life and personal liberty. Right to
health is integral part of the Right to life and is a facet of Article
21. [Paras 15.1 and 15.2][681-B-D]
Municipal Council, Ratlam v. Vardhichand [1981] 1
SCR 97 ; Devika Biswas v. Union of India (2016) 10
G SCC 726 ; CESC Ltd. v. Subhash Chandra Bose (1992)
1 SCC 441 : [1991] 2 Suppl. SCR 267 ; Paschim
Banga Khet Mazdoor Samity v. State of West Bengal
[1996] 2 Suppl. SCR 331 ; Association of Medical
Superspeciality Aspirants & Residents v. Union of
India (2019) 8 SCC 607 : [2019] 12 SCR 1011– relied
H on.
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 589
UNION OF INDIA & OTHERS
2.3 A healthy body is the very foundation for all human A
activities. In a welfare State, therefore, it is the obligation of the
State to ensure the creation and the sustaining of conditions
congenial to good health. Maintenance and improvement of
public health have to rank high as these are indispensable to
the very physical existence of the community and on the
B
betterment of these depends the building of the society of which
the Constitution makers envisaged. Even otherwise, the power
of the State under Entry 6, List II of Schedule VII to legislate
in the subject matter of public health and hospital is exclusive.
[Paras 15.4 and 15.7][683-A-B, F]
Vincent Panikurlangara v. Union of India AIR 1987 C
SC 990 : [1987] 2 SCR 468 – relied on.
2.4 Thus, when the State provides a separate source of
admission for in-service doctors as a distinct class and within
the State quota and the object is laudable, the State is within its
power to provide such separate source of admission in exercise D
of the powers under Entry 25 List III, read with Entry 6, List
II. It cannot be said that there is no nexus with the laudable
object of meeting the requirement of qualified postgraduate
doctors for the public health services, more particularly, in the
rural, tribal and difficult areas. As such, there is no conflict E
between the power of the Union and the State. [Para 15.9][684-
B-D]
2.5 The occupied field of Union legislation in exercise of
power under Entry 66, List I is related to minimum standards
of medical education and the State is providing the in-service F
quota without impinging the prescribed minimum standards.
[Para 15.9][684-D]
2.6 It is a settled proposition of law that in case of two
entries might be overlapping, in that case, the interpretation
must be in furtherance of achieving the ultimate object, in the G
present case to provide better health care in the rural, tribal and
difficult areas. Any interpretation which would negate and/or
become nugatory the other entry, is to be avoided. There must
be a harmonious reading between the two entries. In the present
case, as such there shall not be any conflict between the power
of the Union and the State, while exercising the powers under H
590 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Entry 66 List I by the Union and under Entry 25 List III by the
States. Therefore, as such, the State is within its power and is
empowered to make reservation in the seats of the
postgraduate medical courses, more particularly, for in-service
doctors. [Para 15.9][684-D-F]
B 2.7 In the federal structure, the State, as well as the
Parliament, have a constitutional directive for the upliftment of
Scheduled Castes, Scheduled Tribes, and socially and backward
classes. Therefore, the State Government have the right to
provide reservation and in the field of employment and
education, looking to the specific/special need of public
C requirement in the particular area. There is no constitutional bar
to take further affirmative action as taken by the State
Government in the cases to achieve the goal. [Para 15.10][684-
G-H]
2.8 The State has the legislative competence and/or
D authority to provide for a separate source of entry for in-service
candidates seeking admission to postgraduate degree/diploma
courses, in exercise of powers under Entry 25, List III.
However, it is observed that policy must provide that subsequent
to obtaining the postgraduate degree by the concerned in-
E service doctors obtaining entry in degree courses through such
separate channel serve the State in the rural, tribal and hilly
areas at least for five years after obtaining the degree/diploma
and for that they will execute bonds for such sum the respective
States may consider fit and proper. [Para 20 (8)][688-B-D]
F 3.1 Regulation 9, more particularly Regulation 9(VII)
makes provision for reservation for in-service candidates for
admission to postgraduate diploma courses only. However, there
is no reason coming out of either from the Regulations or in any
form of material produced by the MCI showing as to on what
basis MCI takes a stand that similar in-service reservation is
G not permissible for admission to postgraduate degree courses.
Therefore, if the very concept of in-service reservation is
permissible and incorporated in the MCI Regulations, 2000,
opposition to similar reservation for postgraduate degree
courses is unreasonable and irrational. [Para 17][685-D-E]
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 591
UNION OF INDIA & OTHERS
3.2 The subsequent amendment in the year 2018, as made A
by notification dated 12.07.2018, provides that a medical college/
medical institution shall be entitled to seek equal number of Post
Graduate Degree (MD/MS) seats by surrendering recognised
diploma seats in corresponding course. In view of the above, it
has so happened that by and large in every State the diploma
B
seats are converted in PG Degree (MD/MS) seats by
surrendering recognised diploma seats. The resultant effect is
that in-service candidates/doctors shall not be entitled to any
seat even in PG Diploma courses which has been provided under
Regulation 9(VII) of MCI Regulations 2000, as amended from
time to time. Therefore, ultimately, it will affect the public health C
and the common people in the rural, tribal and hilly areas where
there is a dearth of good and highly qualified doctors. Therefore,
if the rights of the States to provide such reservation for in-
service doctors in postgraduate degree/diploma courses is not
recognised, in that case, the ultimate sufferer would be the public
D
health and the common people, particularly the people residing
in rural, tribal and hilly areas. [Para 19][686-D-G]
4. The observations in the case of *Sudhir N that
Regulation 9 is a complete code in itself may not be construed
with respect to providing reservation and/or making special
provision like providing separate source of entry for in-service E
candidates within the State quota and subject to fulfilling of other
criteria fixed and provided by the MCI. Therefore, the
observations made by this Court in the case of **Dinesh Singh
Chauhan and as held by this Court in the case of Sudhir N that
Regulation 9 is a complete code in itself cannot be accepted and F
is held to be not a good law. [Para 18.1][686-B-C]
*Sudhir N v. State of Kerala and Ors. (2015) 6 SCC
685 : [2015] 1 SCR 884 ; **State of U.P. v. Dinesh
Singh Chauhan (2016) 9 SCC 749 : [2016] 6 SCR 571
– held not good law. G
5. It is specifically observed and clarified that the present
decision shall operate prospectively and any admissions given
earlier taking a contrary view shall not be affected by this
judgment. [Para 20][688-D-E]
H
592 SUPREME COURT REPORTS [2020] 8 S.C.R.
A T.N. Medical Officers Association v. Union of India
(2018) 17 SCC 478 : [2018] 3 SCR 541 ; Pre-PG
Medical Sangharsh Committee v. Dr. Bajrang Soni
(2001) 8 SCC 694 : [2001] 1 Suppl. SCR 506 ; Tamil
Nadu Medical Officers Association v. Union of India
(2018) 17 SCC 426 : [2018] 3 SCR 551 ; Narayan
B
Sharma (Dr) v. Pankaj Kr. Lekhar (Dr) (2000) 1 SCC
44 : [1999] 4 Suppl. SCR 364 – referred to.
PER ANIRUDDHA BOSE, J.
Held: 1.1 Legislations pertaining to medical education is
C primarily guided by two entries of the Seventh Schedule to the
Constitution of India, being Entry 66 of List I (Union List) and
Entry 25 of List III (Concurrent List). [Para 2][689-D]
1.2 Two other entries in the State List are the source of
State’s power to effect such reservation. Entry 6 in the State List
D covers “Public Health and Sanitation; hospitals and
dispensaries”. Entry 32 of the same List specifies Incorporation,
regulation and winding up of corporation, other than those
specified in List I, and universities, unincorporated trading,
literary, scientific, religious and other societies and associations;
co-operative societies.” Admission to postgraduate degree
E courses in medical education cannot be linked to the subject-
heads specified against the said two entries. The consequence
of reservation of this nature may have impact on functioning of
the institutes vis-à-vis the items referred to in the said two
entries, but the said entries cannot be linked to any statutory
F instrument originating from a State providing for reservation of
in-service doctors in postgraduate medical degree courses.
[Para 3][690-A-D]
1.3 The expression “reservation” used in the present
case is not “reservation” in the manner the same is referred to
G in the Constitution, providing for compensatory discrimination.
But so far as the subject-controversy is concerned, this
expression really implies a separate source of entry to the
postgraduate medical degree courses. [Para 3][690-D-E]
1.4 A self-contained code can cover only those subjects
which are contained in such code. If the code does not refer to
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 593
UNION OF INDIA & OTHERS
certain matters, which do not have impact on or dilute the main A
subject for which the code is made, appropriate authorities are
not enjoined from making provisions for such uncovered areas.
The field of legislation involved in the subject-dispute is a shared
field between the Union and the States. The legislative disability
of the States would occur only when the Union legislation covers
B
the same subject on which State undertakes legislative exercise
and the State legislative instrument is found to be repugnant to
the latter. There also can be vacant legislative zones within a
code, and such vacant zones can be filled up by the appropriate
legislature. Clause 9(4)(or Clause 9(IV) in its earlier form) of
the Regulations stipulates that candidates shall be admitted to C
post-graduate courses from the two merit lists only, as referred
to in the said clause. Though it is correct that if a statute requires
a thing to be done in a particular manner, it must be done in
that manner or not at all. But, application of this principle solely
on the basis of a Union legislation, without examining the scope
D
of the State’s legislative power in the given context, would be
contrary to the constitutional scheme in having concurrent field
of legislation. Having regard to Clause 9(4) of the Regulations,
the provision for reservation of in-service doctors by the State
from the State-wise merit list published in pursuance of that
provision would not result in deviation from a mandatory E
statutory scheme. The aforesaid sub-clause is required to be
construed in the light of the State’s power to make provisions
over the admission norms, provided the candidates fulfil the basic
admission criteria contained in the Regulations. Having regard
to the legal and factual context of the present case and
F
considering the fact that the issue of legislative competence
arises in respect of an entry belonging to shared, and not
exclusive field of legislations, the said sub-clause cannot be
interpreted to mean that the State is denuded of the power to
make a separate channel of admission to the said courses for
in-service doctors from the State merit list.The said sub-clause G
does not prescribe specific bar on the State authorities in
providing 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 – held
inapplicable. H
594 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 1.5 The principle of implied exclusion also would not apply.
The principle of implied exclusion is derived from the latin
dictum “expressio unius est exclusio alterius”. There are
authorities, which caution the Courts against indiscriminate
application of this doctrine, describing it to be a “dangerous
master”. [Para 35][725-D]
B
Mary Angel and Ors. v. State of Tamil Nadu (1999) 5
SCC 209 : [1999] 3 SCR 594 ; State of Karnataka v.
Union of India & Anr. (1977) 4 SCC 608 : [1978] 2
SCR 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 a subject falls in a shared field of legislation,
there may be cases where the dominant legislative body may not
have had made provisions in a legislative instrument for which
it had power to do so. But in such a situation the dominant
D legislative body (i.e. Union Legislature) cannot prevent the
secondary legislative body (State Legislature) from making
provisions in that regard. If certain areas of legislative entry is
left void by the Union Legislature, these void areas would come
within the legislative power of the secondary legislative body as
the constitutional entry gives both the legislative bodies co-
E existing, power to legislate on such subjects. Clause 9 of the
Regulations is no doubt a self-contained code. But, it is not an
exhaustive code covering all aspects of admission in
postgraduate medical degree courses. [Para 36][725-F-H;
726-A]
F 1.7 Negation of power of the State cannot be a matter of
inference, or such negation cannot be in anticipation that the
Union Legislature may make provisions in future in the vacant
legislative space. Only in cases where the State legislature
makes a law repugnant to any provision of law made by the
Parliament, the Parliamentary law would prevail. The entire field
G
of admission to postgraduate medical course cannot be said to
be covered by the Regulations. In the facts of the present case,
the Court cannot proceed on the basis of there being implied
repugnancy. Such repugnancy has to be direct and positive. [Para
36][726-B-E]
H
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West U.P. Sugar Mills Association & Ors v. State of A
Uttar 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 SCR
B
644 ; Tika Ramji & Ors.etc v. State of U.P.& Ors. AIR
1956 SC 676 : [1956] SCR 393 – relied on.
2.1 Allocation of seats for in-service candidates is only a
separate or exclusive channel of entry or source of admission
and such entry-path cannot be equated with reservation
provisions incorporated as compensatory discrimination. But C
classifying a category of candidates for such distinct or separate
channel has been upheld consistently, provided such
categorisation is based on intelligible differentia. [Para 28]
[717-G]
Yatinkumar Jasubhai Patel & Ors v. State of Gujarat D
and Ors (2019) 10 SCC 1 : [2019] 12 SCR 848 ; D.N.
Chanchala v. The State of Mysore and Ors. (1971) 2
SCC 293 ; K Duraisamy & Anr v. State of Tamil Nadu
and 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 E
& Ors v. Gopal D 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. F
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 allied
sectors form a separate and distinct class and for the purpose
G
of admission in postgraduate degree courses they can be given
certain elements of preference. Holding them to be a distinct
group fits in with overall objective of having medical
professionals with superior qualification for tending to the needs
of the general public. Moreover, the Regulations by permitting
award of incentive marks to them and also providing for 50 per H
596 SUPREME COURT REPORTS [2020] 8 S.C.R.
A cent reservation in diploma courses indirectly recognise this
category of doctors as a separate class. [Para 29][719-H; 720-
A-B]
2.3 The question of providing a separate entry-path to
in-service doctors may have some effect on overall standard of
B medical education at the postgraduate degree level institutions,
as the students who would gain admission to such courses may
not come purely on the basis of a uniform order of merit. But
that is not the manner in which the Court ought to interpret the
expression “standards” in institutions of higher education.
Analysis of Clause 9 of the Regulations reveals that the said
C clause provides a minimum entry standard in the form of
clearance of the NEET on obtaining minimum of marks of 50
per cent by general category candidates. Once these standards
are laid down, if the State authorities provide an independent
channel of entry for in-service doctors in postgraduate medical
D degree courses, who fulfil the aforesaid minimum standards,
provisions to that effect would not be in breach of the
constitutional scheme. The impact on the “standards”, as the
expression is to be construed in Entry 66 of List I, would be far
too distant from admission norms framed by the State authorities
for such in-service doctors. The separate entry-channel for in-
E service doctors would be integral to the admission norms,
relatable to the Entry 25 of the Concurrent List. Such admission
norms if compatible with minimum standards laid down by the
MCI, would fall under the items specified against the aforesaid
entry of List III. [Para 32][720-G-H; 721-A-D]
F 2.4 The admission process stipulating a distinct source of
entry for in-service candidates by itself would not constitute
breach of the provisions of Clause 9 of the Regulations, provided
that the minimum standards mandated by the said Regulations
for being eligible to pursue postgraduate medical degree course
are adhered to. A separate source of entry for in-service doctors
G through the State merit list would come within the legislative
power and competence of the State. Reservation for in-service
doctors has been a long standing practise and the rationale
behind such reservation appears to be reasonable. [Para 38][727-
A-C]
H 2.5 Clause 9(4) of the Regulations stipulates entry into the
postgraduate courses from the two merit lists, one all India and
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 597
UNION OF INDIA & OTHERS
the other that of the State. If the State authorities provide A
reservation for in-service doctors from within the State’s own
merit list, such an exercise would be relatable to the admission
process and the same would not be in breach of any prohibition
flowing from the Regulations. This would entail some form of
variation of the merit list of the State, but there is no prohibition
B
under the Regulations against a State undertaking that exercise.
Such step undertaken by the State would be relatable to the
State’s legislative power derived from Entry 25 of the
Concurrent List and not covered by the Regulations. There is
no repugnancy with the Regulations if the State authorities
create such a distinct channel of entry. [Para 39][727-D-F] C
2.6 Reservation of in-service candidates was made through
Executive Orders of the State Government. Its original or earlier
version provided no provision for reservation or separate entry-
channel for in-service doctors. The State Government Orders
laid down such distinct source of entry. Interpretation of the same D
clause in its present form should also be based on the same
underlying reasoning. [Para 41][729-B-C]
2.7 Thus, there is no bar in Clause 9 of the Regulations
as it prevailed on 15th February 2012 and subsequently amended
on 5 th April, 2018 on individual States in providing for E
reservation of in-service doctors for admission into postgraduate
medical degree courses. But to take benefit of such separate
entry channel, the aspiring in-service doctors must clear the
NEET Examination with the minimum prescribed marks as
stipulated in the Regulations. Reservation for the category of
in-service doctors by the State would not be contrary to the F
provisions of the Regulations. [Para 42][729-D-E]
State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC
749 : [2016] 6 SCR 571 – Not affirmed.
2.8 The statutory instruments of the respective State
G
Governments are expected to provide for such separate channel
of entry should make a minimum service in rural or remote or
difficult areas for a specified period mandatory before a candidate
could seek admission through such separate channel and also
subsequent to obtaining the degree. On completion of the
H
598 SUPREME COURT REPORTS [2020] 8 S.C.R.
A course, to ensure the successful candidates serve in such areas,
the State shall formulate a policy of making the in-service doctors
who obtain entry in postgraduate medical degree courses
through independent in-service channel execute bonds for such
sum the respective States may consider fit and proper. [Para
43][729-G-H; 730-A]
B
Modern Dental College and Research Centre and
Others 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 SCC
C 685 : [2015] 1 SCR 884 ; R. Chitralekha v. State of
Mysore [1964] 6 SCR 368 ; Kumari Chitra Ghosh and
Anr. v. Union of India & Ors. (1969) 2 SCC 228 :
[1970] 1 SCR 413 ; Gujarat University v. Krishna
Ranganath Mudholkar [1963] Supp 1 SCR 112 ; Dr.
Preeti Srivastava & Anr. v. State of M.P. & Ors. (1999)
D 7 SCC 120 : [1999] 1 Suppl. SCR 249 – referred to.
Case Law Reference
In the judgment of M.R. Shah, J.
[2018] 3 SCR 541 referred to Para 2
E
[1970] 1 SCR 413 referred to Para 3.11
[2001] 1 Suppl. SCR 506 referred to Para 4.7(f)
[2018] 3 SCR 551 referred to Para 8.2
[1999] 4 Suppl. SCR 364 referred to Para 8.4
F
[2016] 3 SCR 579 followed Para 10.1
[1963] Supp (1) SCR 112 relied on Para 10.1
[1964] 6 SCR 368 relied on Para 10.1
[1999] 1 Suppl. SCR 249 relied on Para 10.1
G
[2004] 2 SCR 775 relied on Para 10.1
(1971) 2 SCC 293 relied on Para 10.2
[1984] 3 SCR 942 relied on Para 10.2
H [1986] 3 SCR 345 relied on Para 10.2
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 599
UNION OF INDIA & OTHERS
[1996] 2 Suppl. SCR 184 relied on Para 10.2 A
[2001] 2 Suppl. SCR 79 relied on Para 10.2
[2003] 5 Suppl. SCR 152 relied on Para 10.2
[2019] 12 SCR 848 relied on Para 10.2
[2001] 1 SCR 490 relied on Para 14.1 B
[2003] 1 Suppl. SCR 797 relied on Para 14.2
[2015] 1 SCR 884 relied on Para 14.3
[2016] 6 SCR 571 referred to Para 14.4
C
(2016) 10 SCC 726 relied on Para 15.2
[1991] 2 Suppl. SCR 267 relied on Para 15.2
[1996] 2 Suppl. SCR 331 relied on Para 15.2
[2019] 12 SCR 1011 relied on Para 15.3
D
[1987] 2 SCR 468 relied on Para 15.4
[1981] SCR 197 relied on Para 15.6
[2015] 1 SCR 884 held not good law Para 18.1
[2016] 6 SCR 571 held not good law Para 18.1
E
In the judgment of Aniruddha Bose, J.
[2016] 6 SCR 571 Not affirmed Para 12
[2015] 1 SCR 884 referred to Para 12
[1964] 6 SCR 368 referred to Para 16 F
[1970] 1 SCR 413 referred to Para 16
[2016] 3 SCR 579 followed Para 16
[1963] 1 Suppl. SCR 112 referred to Para 18
[1999] 1 Suppl. SCR 249 referred to Para 20 G
[2019] 12 SCR 848 relied on Para 23
(1971) 2 SCC 293 relied on Para 28
[2001] 1 SCR 490 relied on Para 28
H
600 SUPREME COURT REPORTS [2020] 8 S.C.R.
A [2001] 2 Suppl. SCR 79 relied on Para 28
[2003] 1 Suppl. SCR 797 relied on Para 28
[1992] 1 SCR 335 relied on Para 29
[2001] 1 Suppl. SCR 506 relied on Para 29
B [2012] 10 SCR 204 relied on Para 29
[1999] 3 SCR 594 relied on Para 35
[1978] 2 SCR 1 relied on Para 35
[1973] 1 SCR 822 relied on Para 35
C
(2020) SCC Online SC 380 relied on Para 36
[2004] 2 Suppl. SCR 238 relied on Para 36
[1994] 2 SCR 644 relied on Para 36
[1956] SCR 393 relied on Para 36
D
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
196 of 2018.
[Under Article 32 of the Constitution of India]
With
E
Writ Petition (Civil) Nos. 252/2018, 295/2018, 293/2018, Civil
Appeal 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,
F Arvind 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,
G Blessan Mathews, Robin Raju, Shashibhushan P Adgaonkar, Rana
Sandeep Bussa, Dr. Wolf Sandeep Bussa, Dr. Anni Jhon, Ms. Pradnya
S Adgaonkar, Motahar Hossain, Tejaswi Kumar Pradhan, Sarad Kumar
Singhania, Ms. Rashmi Singhania, Kuldeep Rai, Suman Baneerjee,
Jayesh Gaurav, Robin khokhar, Ranjan Mukherjee, Subhasish
Bhowmick, Nishesh Sharma, Anmol Chandan, Apoorva Kurup, G.S.
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 601
UNION OF INDIA & OTHERS
Makker, Gaurav Sharma, Ankit Anandraj Shah, Saurabh Rajpal, Govind A
Jee, Krishna Kumar Singh, M. Yogesh Kanna, Rahul Chitnis, Sachin
Patil, Jishnu. M. L, Ms. Priyanka Prakash, G. Prakash, Kathivel J., Amit
Kumar, Avijit Mani Tripathi, Ms. Rekha Bakshi, Shaurya Sahay, Kumar
Abhishek, Chetan Joshi, Atul Kumar, V. N. Raghupathy, M/S. S-Legal
Associates, Advs. for the appearing parties.
B
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. Leave & permission granted in the respective special leave
petitions. C
2. After considering the judgment rendered by a three Judge
Bench of this Court in the case of State of U.P. v. Dinesh Singh
Chauhan 1, another three Judge Bench, pursuant to order dated
13.4.2018 in the case of T.N. Medical Officers Association v. Union
of India2, has referred the present batch of cases to a larger Bench. D
2.1 In the case of Dinesh Singh Chauhan (supra), a three Judge
Bench construed the provisions of Regulations 9(IV) and 9(VII) of the
MCI Postgraduate Medical Education Regulations, 2000, as amended
on 15.2.2012 (hereinafter referred to as the “MCI Regulations 2000”).
In the case of Dinesh Singh Chauhan (supra), while considering the E
aforesaid Regulations, this Court held that the aforesaid Regulations do
not provide for any reservation for in-service government doctors in
PG degree courses, and therefore, the State Government order providing
the reservation for PG degree courses for in-service government
doctors is held to be illegal. F
2.2 The present batch of cases came up for hearing before
another Bench of three Judges. The Bench was of the opinion that the
present batch of cases require consideration by a larger Bench and that
is how the present batch of cases are referred to a larger Bench. On
the basis of the submissions made, the following reasons were G
mentioned:
“(i) The decision in Dinesh Singh Chauhan 1 has not
considered the entries in the legislative lists of the
1
(2016) 9 SCC 749
2
(2018) 17 SCC 478 H
602 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Seventh Schedule, more particularly Entry 66 of the
Union List and Entry 25 of the Concurrent List;
(ii) The main contention of the petitioners is that while
coordination and determination of standards in institutions
for higher education falls within the exclusive domain
B of the Union (Entry 66 List I), medical education is a
subject in the Concurrent List (Entry 25 List III).
Though, Entry 25 of List III is subject to Entry 66 of
List I, the State is not denuded of its power to legislate
on the manner and method of making admissions to
postgraduate medical courses;
C
(iii) The contentions which have been raised in the present
batch of petitions were not addressed before this Court
in Dinesh Singh Chauhan1;
(iv) The judgment in Dinesh Singh Chauhan1 does not
D consider three decisions of the Constitution Bench in R.
Chitralekha v. State of Mysore (1964) 6 SCR 368 :AIR
1964 SC 1823, Chitra Ghosh v. Union of India (1969)
2 SCC 228 and Modern Dental College & Research
Centre v. State of M.P. (2016) 8 SCC 353; and
E (v) There are decisions rendered by Benches of an equal
strength as in Dinesh Singh Chauhan1.”
2.3 Now so far as Civil Appeals arising out of the Special Leave
Petitions(C) Nos.26448-26449 of 2019 are concerned, they arise out
of the impugned judgment and order dated 01/10/2019 in MAT Nos.
F 1245 and 1267 of 2019 passed by the High Court at Calcutta, by which
the Division Bench of the High Court has dismissed the batch of appeals
confirming the order passed by the learned Single Judge holding that
the State has no authority to reserve 40% seats for the in-service
doctors and 60% seats for open category doctors.
2.4 In Writ Petition (Civil) No. 196 of 2018 filed under Article
G
32 of the Constitution of India, the petitioners – Tamil Nadu Medical
officers’ Association and others, for and on behalf of the in-service
doctors in the State of Tamil Nadu have prayed for the following reliefs:
a) declare by issuance of a writ of mandamus or any other
suitable writ/order/direction that Regulation 9 of the Post
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 603
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
Graduate Medical Education Regulations, 2000 (more A
particularly, Regulation 9(IV) and 9(VII), does not take
away the power of the States under Entry 25, List III
to provide for a separate source of entry for in-service
candidates seeking admission to Degree courses;
b) Alternatively, if Regulation 9 of the Post Graduate B
Medical Education Regulations, 2000 is understood to
now allow for States to provide for a separate source
of entry for in-service candidates seeking admission to
Degree courses, declare, by issuance of a writ of
mandamus or any other suitable writ/order/direction,
Regulation 9 (more particularly, Regulation 9(IV) and C
9(VII) as being arbitrary, discriminatory and violative of
Article 14 and 19(1)(g) of the Constitution and also ultra
vires the provisions of the Indian Medical Council Act,
1956.
Somewhat similar prayers are also sought for on behalf of the D
in-service doctors in the State of Kerala (Writ Petition (Civil) No. 252/
2018); in-service doctors working in the State of Maharashtra (Writ
Petition (Civil) No. 295/2018); and for and on behalf of the in-service
doctors working in the State of Haryana (Writ Petition (Civil) No. 293
of 2018).
E
2.5 IA Nos.61442, 61443 and 61445 of 2020 have been preferred
by the GMS Class II Medical Officers Association being aggrieved by
the Public Notice dated 28.02.2019 as amended by the Corrigendum
dated 10.03.2019, wherein, Medical Council of India has permitted the
conversion of Diploma seats into Degree seats in the State of Gujarat.
The said application is filed for and on behalf of in-service Medical F
Officers working in the State of Gujarat.
2.6 IA No.24759 of 2020 in Writ Petition (Civil) No. 252 of 2018
has been preferred by Kerala Government Insurance Medical
Association and others supporting the reservation for in-service Medical
Officers/Candidates in the Post-graduate Degree Courses. G
3. Learned counsel appearing on behalf of the respective
petitioners/parties, more particularly, Tamil Nadu Medical Association,
State of Tamil Nadu, State of West Bengal and others in support of
the reservation for in-service Medical Officers/ Candidates/Doctors in
Post-graduate Degree Courses have made the following submissions: H
604 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 3.1. The moot question is whether the State Government is
competent to provide for a reservation for candidates who are already
serving the Government. Such reservation is made for Post-graduate
seats in the different medical colleges in the State. The competence of
the State Government is traceable to Article 245 r/w Entry 25 List III
of the 7th schedule to the Constitution. It cannot be said that there has
B
to be a legislature made law to provide for such reservation. The
Government can in exercise of its power as an Executive under Article
154 provide for such reservation and it has been so provided as well.
Once competence is found in favour of Government then only
question is one of a possible conflict with a Central Law and the
C resolution of any question of repugnancy. It is submitted that said
question really does not arise in the present case;
3.2. The competence of the State Government to bring about a
law dealing with admissions of in-service candidates is upheld by the
Constitutional Bench of this Court in the case of Modern Dental
D College and Research Centre and Others vs. State of Madhya
Pradesh and Others3. The argument raised on behalf of the Centre
that Entry 25 of List III itself would be subject to Entry 66 of List I
has also been considered by this Court;
3.3. There is no question of any conflict of Entry 25 of List III
E and Entry 66 of List I. The subject of admission to courses is referable
to Entry 25 of list III and not Entry 66 of List I. It is submitted that
conflict, if any, can only be between a State Law and a Central Law
both sourced to Entry 25 of List III. That no such conflict is present in
the instant case;
F 3.4. There is no plenary law by the Centre provided for any
reservation for in-service candidates. In other words, there is no Central
Law governing the said aspect, therefore, it would be competent for
the State Government to provide for a reservation for in-service
candidates. In the absence of a Central Law, it is obviously open to
G the State Government to provide for a legal instrument, whether by way
of a statute or by an executing order providing a reservation for in-
service candidates;
3.5. The MCI Regulations, 2000, which are made under the
Medical Council Act provide for a reservation in Post-graduate Diploma
H 3
(2016) 7 SCC 353
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 605
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
Courses for in-service candidates serving with the respective State A
Governments. There is no bar to such reservation in Post-graduate
Degree Courses. The bar, if any, has to be express and cannot be
implied. Clause 9(IV) of the MCI Regulations, 2000 can be construed
as provided for community reservations and also a reservation for in-
service candidates. Even otherwise, it does not enable explicitly the State
B
Government to provide for a weightage in marks, amongst in-service
candidates. Thus, the legislative instrument which could be sourced to
the MCI, which in turn is a body established by the Central Government
under the Medical Council Act itself recognizes an empowerment of
the State Government, inter alia, to lay down the modalities to regulate
or provide for a reservation for in-service candidates in Post-graduate C
seats. If that be so, then the actual prescription of a reservation for in-
service candidates, in relation to Post-graduate Degree seats obviously
has not come into conflict with the MCI Regulations, 2000 so as to
attract Article 254 of the Constitution;
3.6. The MCI Regulations, 2000, not expressly providing for a D
reservation in Post-graduate Degree seats, specifically empowering the
State Government to do so, but only touches upon the reservation in
Diploma seats, it does not follow that the State Government is
incompetent to provide for reservation for in-service candidates in
Degree seats as well. The competence of the State Government to
provide for reservation for in-service candidates is not sourced to the E
MCI 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 a
submission by the MCI that consequently the State Government would
be incompetent to provide for any reservation for in-service candidates F
in Degree seats;
3.7. The MCI Regulations, 2000 would become relevant only
when it provides for reservation in Post-graduate Degree seats and the
State Government brings about a policy of reservation in Post-graduate
Decree seats at variance from the protocol laid down in the MCI G
Regulations. The MCI Regulations, 2000 are silent in regard to the
reservation in Post-graduate Degree seats and therefore, possible
repugnancy under Article 254 of the Constitution of India really cannot
arise between an instrument by the State Government and an instrument
by the Central Government which does not cover the subject or touch
upon the subject provided for by the State Government; H
606 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 3.8. Assuming without admitting that though MCI Regulations do
provide for a conversion of Diploma seats into Degree seats, by the
State Government with the approval of the MCI, the MCI Regulations,
2000 do not specifically mention the consequences of such conversion.
When law provides for a particular event to take place then all
reasonable consequences that emanates therefrom should also be
B
inferred, should be applied to the present situation as well;
3.9. Even MCI Regulations, 2000 themselves provide for
reservation for in-service candidates in Diploma and also provides for
service condition to be fulfilled thereunder. The conversion of Diploma
seats into Degree seats (now after 2018) would obviously result in the
C same permissible reservation for in-service candidates to be provided
for Degree seats as well. All that would be required is the imposition
of the same conditions as are provided in the Diploma seats;
3.10. The decision of this Court in the case of Dinesh Singh
Chauhan (Supra) also requires re-look in view of the subsequent
D development viz. Notification dated 12.07.2018 by which, MCI has
permitted the Medical College/Medical Institution to “seek equal number
of Post-graduate Degree seats by surrendering recognized diploma seats
in corresponding course”. It is submitted that pursuant to the said
Notification the medical colleges/institutions are/were given the option
E of converting the available post graduate diploma seats into Post-
graduate Degree seats in a 1:1 ratio. It is submitted that pursuant to
the said notification most of the medical colleges/medical institutions in
the respective States have surrendered the Post-graduate Diploma seats
and have converted the same to Post-graduate Degree seats. It is
submitted that resultant effect is that now there shall not be any Post-
F graduate Diploma seats available and therefore, in-service candidates
are left in a situation where even the limited benefit conferred on them
in form of 50% reservations in Post-graduate Diploma Course can no
longer be availed. As a result, in-service candidates have been left in a
complete lurch since they would neither be able to qualify for Post-
G graduate Degree course in adequate numbers nor be in a position to
avail the Post-graduate Diploma seats previously available in the
Government Colleges. In view of the above development, the reasoning
in the case of Dinesh Singh Chauhan (supra) as to the difference in
the Regulations between Post-graduate Diploma and Degree courses
no longer survives;
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 607
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
3.11. Right of the State Government to set apart a definite A
percentage of educational seats at Post-graduate level consisting of
Degree and Diploma courses exclusively for a class of persons as a
separate source of entry has been repeatedly upheld by this Court with
the condition that source is properly classified –whether on territorial,
geographical or other reasonable basis and has a rational nexus with
B
the object of imparting a particular education and effective selection
for the purpose. Reliance is placed upon the decision of this Court in
the cases of (1) Kumari Chitra Ghosh and Anr. vs. Union of India &
Ors.4; (2) D.N. Chanchala vs. The State of Mysore and Ors.5; (3) K
Duraisamy & Anr vs. State of Tamil Nadu and Ors 6; (4) AIIMS
Students Union vs. AIIMS7; and (5) State of Madhya Pradesh & Ors C
vs. Gopal D Tirthani and Ors8;
3.12. It has been consistently held by this Court that there is a
legitimate and rational basis in providing a separate channel/source of
entry for in-service candidates in order to encourage them to offer their
services and expertise to the State. It is submitted that this Court has D
acknowledged that this has a sufficient nexus with the larger goal of
equalization of educational opportunities and to sufficiently prefer the
doctors serving in the various hospitals run and maintained out of public
funds, in the absence of which there would be serious dearth of qualified
Post-graduate doctors to meet the requirements of the common public;
E
3.13. Unlike reservation envisaged for Scheduled Caste/ Schedule
Tribes, this is a distinct and vitally important public purpose in itself
absolutely necessitated in the best of public interest. In the case of
Dinesh Singh Chauhan (supra) this Court has held that no fault can
be found with the method of providing a separate channel of entry for
in-service candidates for the reason that the facilities for keeping up F
with the latest medical literature might not be available to such in-service
candidates and the nature of the work makes it difficult for them to
acquire knowledge about very recent medical research, which the
candidates who has come after freshly passing their graduation
examination might have; G
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 H
608 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 3.14. In the case of Modern Dental College and Research
Centre (supra), the Constitution Bench of this Court has affirmed that
even though Entry 25 List III is subject to Entry 66 List I, the power
of States to enact laws concerning admissions would not stand
extinguished so long as such laws did not have the effect of wiping out
the law enacted by the Union under Entry 66 List I;
B
3.15. When the States create a separate source of entry for
in-service candidates, the standards of medical education are not
impinged inasmuch as;
(a) only eligible in-service candidates can qualify i.e. those
have obtained minimum eligibility marks;
C
(b). amongst eligible in-service candidates admission is made
based on inter-se-merit;
(c). The preferential weightage would merely alter the order
in which in–service candidates would rant in the merit
list prepared for in-service candidates. Thus, it would
D
not be a case of ‘double reservation’;
3.16. As held by this Court in the case of Yatinkumar Jasubhai
Patel & Ors vs. State of Gujarat and Ors9, which was in the context
of “institutional preference” for Post-graduate Medical Admission, only
obligation by virtue of introduction of NEET is that the State cannot
E hold any separate test for admissions to Post-graduate courses. As
observed, even while giving the admission in the State quota/institutional
reservation quota, the merit determined on the basis of NEET will still
have to be considered. It is submitted that therefore, provision of a
separate source of entry for in-service candidates shall not dilute the
F standards of higher education in any manner since the candidates in
question would still have to obtain the minimum merit prescribed under
NEET;
3.17. The reservation referred in the opening part of Regulation
9(IV) is only with respect to reservation as per the constitutional scheme
i.e. SC, ST and OBCs and not for in-service candidates or Medical
G Officers in–service. This is also acknowledged by this Court in the case
of Dinesh Singh Chauhan (supra) in para 25.4. It is submitted that
therefore, there is no merit in the statement of defence by the respondent
that in-service candidates for Post-graduate Degree Course are already
governed by the reservation provided for in Regulation 9(IV);
H 9
(2019) 10 SCC 1
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 609
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
3.18. It is submitted that so far as State of Tamil Nadu is A
concerned, the Hon’ble Chief Minister of Tamil Nadu in his letter dated
25.4.2017 to the Hon’ble Prime Minister, has highlighted that providing
only 30% weightage to in-service candidates seeking admission to Post-
graduate Degree Course is not enough since if this procedure is
followed, out of the 557 Post-graduate government seats available under
B
the State quota in Tamil Nadu, only 20 seats would go to in-service
quota candidates. It is submitted that vide letter dated 6.2.2019, the State
of Tamil Nadu wrote to the Ministry of Health and Family Welfare and
highlighted the contribution of the policy to provide 50% reservation for
in-service candidates in Post-graduate degree courses in attracting
meritorious Doctors to Government service and also enabling the State C
Government to provide uninterrupted health care in rural, difficult and
remote areas of the State. It is submitted that it was further highlighted
that this reservation was critical for the maintenance of quality health
care in the government medical facilities;
3.19. Learned counsel appearing on behalf of the State of Tamil D
Nadu has highlighted the benefits to be achieved by providing 50%
reservation for in-service candidates in Post-graduate Degree/ Diploma
Courses. It is submitted that continuance of given incentive marks and
reserving 50% seats for in-service candidates who performed duty in
remote, rural area, hilly terrain etc. in Post-graduate courses will sustain
the achievement made by the State Government in the health sector E
and provide valuable medical care to the poor and vulnerable society.
It is submitted that therefore, it is in the larger public interest of the
State that there is a provision for 50% reservation in Post-graduate
Degree/Diploma Courses/seats for in-service candidates;
3.20. So far as the State of West Bengal is concerned, learned F
counsel appearing on behalf of the State of West Bengal as well as
Government Doctors serving in the Government Hospitals in the State
of West Bengal in support of the reservation of 40% of the state quota
Post-graduate Medical seats for in-service Doctors have made in
addition to the following submissions: G
3.20.1. That the State of West Bengal has enacted the West
Bengal Health Services Act, 1990 for controlling the services of the
in-service doctors. Under Section 21 of the said Act, the State has the
Rule making power and in exercise of that power the State has enacted
the West Bengal Health Service and the West Bengal Medical Education H
610 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Service and the West Bengal Health and Public Administrative Service
(Placement on Trainee Reserve) Rules, 2015. As per the note of Rule
3 of the said Rules, the State is empowered to make reservation in the
seats of the Medical Courses of the State Universities for its officers
under West Bengal Health Service and the West Bengal Medical
Education Service and the West Bengal Health and Public
B
Administrative Service. It is submitted that such note was also there in
the Rules of 2008, which came to be repealed in view of enactment of
Rules 2015. That the Government vide order dated 18.4.2013 provides
for the reservation of 40% of the State quota Post-graduate Medical
seats for the in-service doctors in exercise of such power;
C 3.20.2. That the action of the State to provide in-service quota
is in the discharge of its positive constitutional obligations to promote
and provide better health care facilities for its citizens by upgrading the
qualifications of the existing in-service doctors so that the citizens may
get more specialized health care facility. Such action is in discharge of
D its constitutional obligations as provided in Article 47 of the Constitution
of India which is the corresponding fundamental right of the citizens
protected under Article 21 of the Constitution of India;
3.20.3. The State can fix a separate source of admission as the
in-service doctors are distinct class. The classification has sufficient
E nexus with the laudable object of meeting the requirement of qualified
Post-graduate doctors for the public health service. Reliance is placed
upon decision of this Court in the case of Sudhir N vs. State of Kerala
and Ors. 10;
3.20.4. By way of providing separate source of entry to the
F in-service doctors, the State has not impinged upon the minimum
standards prescribed by the Medical Council of India as in-service
candidates are selected on the basis of their merit assessed on the basis
of their marks obtained in the NEET examination;
3.20.5. The action of providing separate quota for the in-service
G doctors is not violative of the Regulation 9(IV) of the MCI Regulations,
2000 as the same categorically states in an unambiguous manner, inter
alia, that the reservation of seats shall be as per applicable laws
prevailing in the State. By giving restrictive meaning to the term
‘reservation’ as only constitutional reservation, it would be putting words
10
H (2015) 6 SCC 685 (paras 22 to 24)
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 611
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
to the legislation which is otherwise unambiguous and includes all kinds A
of reservation including that of in-service;
3.20.6. In-service Doctors come with vast practical experience
of serving several years in the Government Health Services and treating
countless patients. Whereas the fresh MBBS graduates, even though
may score higher because of their recent connection with the textbooks, B
do not have any such experience. Their marks are only reflective of
their theoretical knowledge and ability to memorize and answer
examination questions. It is submitted that thus, in-service Doctors having
vast experience and fresh graduates having no such experience, form
two different classes and cannot be equated. It is submitted that forcing
in-service Doctors to compete with the fresh graduates in their C
theoretical knowledge will be extremely, unfair, illogical and irrational;
3.21. In addition, learned counsel appearing on behalf of the
private appellants in the Civil Appeals arising out of impugned judgment
and order passed by the High Court of Calcutta and in-service
candidates have further submitted that the reservation notification was D
issued on 18.4.2013 and the writ petition has been filed after first
counselling was over for 2019 admission. All admissions were completed
in May 2019 and 285 doctors out of the State quota of 699 have almost
completed the first semester. It is submitted that therefore, alternatively
it is prayed to observe that the impugned judgment and order passed E
by the High Court may not affect the admission already granted and
may not affect those in-service candidates who are already admitted
prior to filing of the petition / impugned judgment and order passed by
the High Court;
4. The applicant of IA No.61442 of 2020 – GMS Class II F
Medical Officer’s Association and Association of in-service Government
Medical Officers in the State of Gujarat are as such aggrieved by the
Public Notice dated 28.02.2019, as amended by a Corrigendum dated
10.03.2019, wherein Medical Council of India has permitted the
conversion of Diploma seats into Degree seats on the ground of doctrine
of Legitimate Expectation and on the ground that the same is in teeth G
of and to bypass the order passed by this Court dated 19.5.2017 in the
matter of Special Leave Petition (Civil) No.31395 of 2017. It is
submitted that in the aforesaid case this Court directed the State of
Gujarat to conduct the counselling keeping in view the regulation which
provides for 50% of seats to be reserved in the Post-graduate Diploma H
612 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Courses for Medical Officers in the government service who have
served for at least three years in remote and/or difficult areas. It is the
case on behalf of those in-service Medical Officers working in the
Government Colleges in the State of Gujarat that by the aforesaid vested
rights in favour of those in-service candidates and to avail 50%
reservation in Post-graduate Diploma Courses have been taken away.
B
It is their case that what cannot be done directly, shall not be permitted
to be done obliquely. It is also their case that so far as the State of
Gujarat is concerned, there is no provision for giving 30% incentive for
Post-graduate Degree Courses displaced in Clause 9(IV) of the MCI
Regulations, 2000. It is submitted that therefore, on one hand Diploma
C seats are being decreased and on the other hand there is no provision
for providing incentive marks in the Degree Courses to the in-service
Medical Officers, who have worked in rural areas. It is submitted that
the applicant has already filed writ petition before the Gujarat High Court
being Special Civil Application No.5773 of 2019 challenging the vires
of Rule 6 of the Gujarat Professional Post-graduate Medical
D
Educational Courses (Regulation of Admission) Rules, 2018 as well as
conversion of Diploma seats into Degree seats and the same is pending;
4.1. Learned counsel appearing on behalf of the respective writ
petitioners – in-service doctors have made the following submissions
in respect of their alternative prayer/prayers to declare Regulation 9,
E more particularly, Regulation 9(IV) and 9(VII) of the MCI Regulations,
2000, as arbitrary, discriminatory and violative of Article 14 and 19(1)(g)
of the Constitution of India and also ultra vires the provisions of the
Indian Medical Council Act, 1956;
4.2 That so far as the State of Tamil Nadu is concerned, it is
F submitted that since the year 1989, the State of Tamil Nadu has had a
policy of providing a separate source of entry to in-service candidates
to the extent of 50% of the State seats in degree courses. Further, since
the year 2007, by way of a Government Order, the State of Tamil Nadu
has also provided for preferential weightage to those in-service
G candidates who have served in rural, hilly and difficult areas. Therefore,
the policy of the State Government has been adopted with a view to
ensure adequate healthcare in the public sector and to further ensure
filling of vacancies in government hospitals, particularly in rural, hilly
and difficult areas. That the aforesaid policy following by the State of
Tamil Nadu has resulted in drastic improvement in the overall public
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 613
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
healthcare with adequate staffing across the State and improvement in A
health indicators, particularly when compared to other States in the
country;
4.3 Learned counsel appearing on behalf of the in-service
candidates working with the State of Kerala has submitted that the State
of Kerala had a policy of reserving 40% of the seats available in B
postgraduate medical admission for in-service candidates serving in the
Health Service Department, Medical College Lecturers and doctors
serving in the ESI Department of the State. That MCI Regulations,
2000, however, made it mandatory for all candidates seeking admission
to postgraduate medical courses to appear for a common entrance
examination. The MCI Regulations, 2000, inter alia, provide that C
candidates who appear in the common entrance examination and secure
50% in the case of general category candidates and 40% in the case
of SC/ST candidates alone shall be qualified for such admission.
Consequently, even in-service candidates had to appear and qualify in
the common entrance examination. Considering the hardship faced by D
the in-service candidates who were working round the clock for the
benefit of the public could hardly find time to update their knowledge
and compete with the general merit candidates, the Government of
Kerala brought the Kerala Medical officers Admission to Post Graduate
Courses under Service Quota Act, 2008 to overcome the difficulties
faced by in-service candidates in the matter of getting admission to E
postgraduate courses;
4.4 Learned counsel appearing on behalf of the in-service
candidates working with the State of Maharashtra has submitted that
so far as the State of Maharashtra is concerned, the State of
Maharashtra by a resolution dated 06.01.1990, decided to reserve 15% F
of postgraduate seats in Government Medical Colleges for the in-service
candidates to meet the acute shortage of doctors in rural areas. The
said resolution was issued to serve as an incentive for graduate doctors
to take up government service at primary health centres which were
suffering due to the acute shortage of doctors in rural areas. However, G
since the requirement of doctors was not met with, the State of
Maharashtra by another Government Resolution dated 22.02.1996
increased the reservation of seats for in-service candidates from 15%
to 25%. However, in view of the Regulations framed by the Medical
Council of India, the in-service candidates are suffering and ultimately
H
614 SUPREME COURT REPORTS [2020] 8 S.C.R.
A the public health in the rural, hilly and remote areas is being suffered
and ultimate sufferer is the public at large in those areas;
4.5 So far as the State of Haryana is concerned, it is the case
on behalf of the in-service candidates working with the State of
Haryana that the State of Haryana had the policy of reserving 27% of
B the seats in the postgraduate medical courses in the Government
Colleges for in-service candidates. However, the percentage of seats
reserved for the in-service candidates was increased in 2001 from 27%
to 40% until 2016 for admission to postgraduate medical courses for
in-service doctors in Haryana out of the 50% State quota;
C 4.6 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); and
D Gopal D. Tirthani (supra), this Court has repeatedly upheld the right
of the State Governments to set apart a definite percentage of
educational seats at postgraduate level consisting of degree and diploma
courses exclusively for a class of persons as a separate source of entry,
with the condition that the source is properly classified whether on
territorial, geographical or other reasonable basis and has a rational
E nexus with the object of imparting a particular education and effective
selection for the purpose;
It is submitted that in the aforesaid decisions, this Court has upheld
providing in-service candidates a separate source of entry by accepting
that the classification of candidates between in-service doctors and non-
F service doctors has a reasonable nexus with the objective sought to be
achieved, i.e., of providing adequate and affordable healthcare in the
public sector;
ii) The power of the State to provide for a separate source of
entry in matters of admission in medical education flows from Entry
G 25, List III of the Constitution, whereas the power of the Union in
matters of “coordination and determination of standards” in matters of
admission in medical education is derived from Entry 66 of List I and
Entry 25 of List III;
iii) This Court in the case of Modern Dental College (supra)
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 615
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
has specifically held after considering the earlier decisions that Entry A
66 of List I was a specific entry having a very specific and limited
scope, i.e., dealing with “coordination and determination of standards”
in institutions of higher education or research as well as scientific and
technical institutions. It has been further held that the words “coordination
and determination of standards” would mean laying down the said
B
standard and thus, when it comes to prescribing the standards for such
institutions of higher learning, exclusive domain is given to the Union.
Insofar as medical education is concerned, the same is achieved by
parliamentary legislation in the form of Medical Council of India Act,
1956 and by creating a statutory body like Medical Council of India,
the functions of which take, within its sweep, determination and C
coordination of standards in a medical institution and that of educational
institutions. It is further observed that when it comes to regulating
education as such which includes medical education as well as
universities (imparting higher education), that is prescribed in Entry 25
of List III, thereby giving concurrent powers to both Union as well as
D
States. It is further held that the power of the States to enact laws
under Entry 25, List III would not stand extinguished so long as such
laws did not have the effect of wiping out the law enacted by the Union
under Entry 66 of List I;
4.7 It is further submitted that the observations of this Court in
the case of Dinesh Singh Chauhan (supra) as regards Regulation 9 E
prohibiting the States to provide a separate source of entry for in-service
candidates require re-consideration inasmuch as:
a) there is no express or implied bar contained in
Regulation 9 which prohibits the States from exercising
their power under Entry 25, List III and providing a F
separate channel of entry to in-service candidates. On
the contrary, the fact that preference is given to in-
service candidates is perceived to be a laudable objective
by the Union also, is evident from the proviso to
Regulation 9(IV) and Regulation 9(VII). However, G
Regulation 9 has not (rightly so) prescribed a uniform
policy for a separate source of entry since only the State,
which is fully aware of the unique and peculiar facts of
that State, can, if necessary, provide for a separate
source of entry for that State;
H
616 SUPREME COURT REPORTS [2020] 8 S.C.R.
A b) that this Court relied upon the findings in Sudhir N
(supra), to the effect that Regulation 9 is a complete
code in itself, to arrive at the conclusion that the State
Governments could not provide a separate channel of
entry to in-service candidates. However, this Court failed
to consider that even in Sudhir N (supra), the case of
B
Gopal D. Tirthani (supra) had been approved and the
impugned law framed by the State of Kerala had been
struck down on account of the State of Kerala giving
the inter se merits of in-service candidates a go-bye by
fixing the criteria for admission as inter se seniority.
C Thus, even in Sudhir N (supra), the power of the State
Governments to provide a separate channel of entry to
in-service candidates was affirmed;
c) that this Court did not take into account the fact that
by providing a separate source of entry for in-service
D candidates, there would be no lowering of standards
prescribed by the Medical Council of India since eligible
candidates would have met the minimum qualification
marks set out in NEET and moreover the admission
would take place based on the inter se merits of the
in-service candidates;
E
d) that this Court did not take into account the relevant
findings in the case of Modern Dental College (supra),
more particularly, paragraphs 29 and 30;
e) that this Court also did not consider that its interpretation
F of Regulation 9 in such a manner as to render the States
powerless in the matter of creating a separate source
of entry would be contrary to various decisions of this
Court which have affirmed the right of the State
Government to determine the admission process keeping
in view their peculiar conditions with the caveat that
G there is no laying down of uniform standard prescribed
by the Union;
f) that mere incentives as mentioned in Clauses (IV) and
(VII) of Regulation 9 of the Regulations, 2000 with
respect to in-service government doctors will result in
H less number of people opting Government services thus
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 617
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
affecting the under-privileged and under-served A
population across the State. That there is an absolute
dearth of doctors entering Government services since
very few MBBS doctors join government service after
their graduation. This situation affects the under-
privileged, under-served and poorest of poor people
B
across the country who prefer public sector/government
run hospitals or primary health centres for their treatment
as they are not in a financial position to afford the
private hospitals. Hence, in order to retain the doctors
in government services and continue with them for a
longer duration, it is vitally important and absolutely C
necessitated in the best of public interest for the States
to carve out a separate channel of entry for the in-
service candidates in admission to postgraduate medical
courses. Heavy reliance is placed upon the decision of
this Court in the case of Pre-PG Medical Sangharsh
D
Committee v. Dr. Bajrang Soni11;
g) that Regulation 9 of the Post Graduate Medical
Education Regulations, 2000 cannot expressly or
impliedly take away the power of the State Government
under Entry 25, List III to provide either reservation or
weightage in marks for all the in-service candidates and E
in no way providing such reservation for all in-service
candidates, would be lowering the standard prescribed
by MCI since eligible candidates would have met the
minimum qualification marks set out in the NEET
entrance test and moreover the admission would take F
place based on inter se merits of the in-service
candidates;
h) that the power of the State Government to provide for
reservation or separate channel of entry for in-service
candidates at the postgraduate level so long as the G
minimum standards of qualification is maintained has
been held to be constitutionally valid by this Court in
catena of decisions;
11
(2001) 8 SCC 694 H
618 SUPREME COURT REPORTS [2020] 8 S.C.R.
A i) that even otherwise providing reservation for in-service
candidates in postgraduate diploma courses (as per
Regulation 9(VII)) only and not providing any specific
provision for reservation for in-service candidates in
postgraduate degree courses is absolutely arbitrary and
colourable exercise of power. It is submitted that there
B
is no logic and reason to provide for reservation only in
postgraduate diploma courses and not in postgraduate
degree courses. It is submitted that not providing for any
reservation for in-service candidates in postgraduate
degree courses is discriminatory and violative of Article
C 14 of the Constitution of India;
j) that any interpretation of Regulation 9, which allows for
reservation for in-service candidates in diploma courses
but prohibits a separate source of entry for in-service
candidates in degree courses therefore is wholly arbitrary
D and without any application of mind inasmuch as it
completely fails to consider that the need to adequately
staff rural healthcare is not only at a basic level but
more so at a specialised level since the shortage of staff
in specialised healthcare is even more acute and serious;
E k) that in case Regulation 9 is understood to not provide a
separate channel of entry for in-service candidates
seeking admission to degree courses, then the same
would be ultra vires Section 20 of the Indian Medical
Council Act, 956 inasmuch as Section 20 only mandates
that MCI prescribes the standards of postgraduate
F medical education, i.e., prescribes the minimum
qualification marks but does not in any way empower
MCI to impede the well-recognised right of the States
to create a separate channel for persons it may deem
fit;
G 4.8 If it is understood that MCI Regulations, 2000 provide for
any reservation for in-service candidates in postgraduate degree courses
and do not provide a separate channel of entry for in-service candidates,
then the same would be ultra vires to Section 33 of the Indian Medical
Council Act, 1956 inasmuch as it would be beyond the scope and ambit
H of the MCI to make any provision for separate channel of entry for
in-service candidates;
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 619
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
4.9 The MCI Regulations, 2000 do not and cannot take away A
the powers of the respective States to make special provision for
in-service candidates, looking to the need and requirement of the
particular State in exercise of the power under Entry 25 of List III of
the Constitution. It is submitted that “institutional preference” for
postgraduate medical admissions is held to be permissible by this Court
B
in catena of decisions. It is submitted that therefore once the
“institutional preference” for postgraduate medical admissions within
the State quota is held to be permissible, similarly providing a separate
channel for in-service candidates in the form of certain percentage by
way of reservation, looking to the specific need and requirement of the
State and that too within the State quota is certainly permissible and C
the MCI Regulations, 2000 cannot take away the powers/authority of
the concerned States to make special provision for in-service candidates
for postgraduate medical admissions within the State quota and without
compromising the merits, namely, following the minimum eligibility
criteria framed by the MCI;
D
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 been
enacted for the sole purpose of coordination and E
determination of standards in exercise of the power of
the Union Legislature under Entry 66 of List I of
Schedule VII. The power of regulating “Education” as
such is prescribed in Entry 25 of List III giving
concurrent power to both States and the Union. The
entire gamut of admission is not covered under Entry F
66 of List I of Schedule VII excluding Entry 25 of List
III, though Entry 25 of List III is subjected to Entry 66
of List I;
b) that there is no conflict between the power of the Union
and the States. The occupied field of Union Legislation G
is only related to minimum standards of medical
education and the State has provided for in-service quota
without impinging the prescribed minimum standards;
c) that the power of the State in providing reservation has
to be tested within the Constitutional framework and the H
620 SUPREME COURT REPORTS [2020] 8 S.C.R.
A State has not travelled beyond its powers in providing
quota for the in-service doctors in postgraduate medical
admission and the same has been provided within the
framework of the Constitution of India;
d) that the power of the State under Entry 6 of List II of
B Schedule VII to legislate in the subject matter of public
health and hospital is exclusive. The State of West
Bengal has enacted the West Bengal Health Services
Act, 1990 under such exclusive legislative power. Under
Section 21 of the said Act, the State has the Rule
making power and in exercise of that power the State
C has enacted the West Bengal Health Service and the
West Bengal Medical Education Service and the West
Bengal Health and Public Administrative Service Rules,
2015. That as per Note of the Rule 3 of the said Rules,
the State is empowered to make reservation in the seats
D of the medical courses of the State Universities for its
officers under West Bengal Health Service. The
Government Order dated 18.04.2013 provides
reservation of 40% of the State quota in the
postgraduate medical seats for the in-service doctors.
Such Note is a part of the Statute;
E
e) that the action of the State to provide for the in-service
quota is in the discharge of its positive constitutional
obligations to promote and provide better health care
facilities for its citizens by upgrading the qualifications
of the existing in-service doctors so that the citizens may
F get more specialized health care facility. Such action of
the State is indeed in discharge of its constitutional
obligations as provided in Article 47 of the Constitution
of India which is the corresponding fundamental right
of the citizens protected under Article 21 of the
G Constitution of India;
f) that the power of the State under Entry 6 of List II of
Schedule VII is exclusive and the same is not subject
to any other entry of the List I. The Court cannot give
an interpretation which may make such independent
H entry subject to any entry of List I which was not the
intention of the framers of the Constitution of India;
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 621
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
g) that the State can fix a separate source of admission A
as the in-service doctors are distinct class. The
classification has sufficient nexus with the laudable
object of meeting the requirement of qualified
postgraduate doctors for the public health service;
h) that the observations made by this Court in the case of B
Sudhir N (supra) that Regulation 9 is a complete code
by itself is required to be considered with reference to
the context and the controversy in the said case. It is
submitted that the observations in the case of Sudhir
N (supra) that Regulation 9 is a complete code in itself
may not be construed with respect to providing C
reservation and/or making special provision like providing
separate source of entry for in-service candidates within
the State quota and subject to fulfilling all other eligibility
criteria fixed and provided by the MCI. It is submitted
that in that sense the observations made by this Court D
in Dinesh Singh Chauhan (supra) that as held by this
Court in Sudhir N (supra) that Regulation 9 is a
complete code in itself including the reservation may not
be accepted and is not a good law;
i) it is further submitted that even as provided under E
Regulation 9(IV) of the MCI Regulations, 2000, the
reservation of seats shall be fixed as per the prevailing
laws in the State. Therefore, by giving restrictive
meaning to the term “reservation” as only constitutional
reservation, it would be putting words to the legislation
which is otherwise unambiguous and includes all kinds F
of reservation including that of in-service;
4.11 It is submitted by the learned counsel appearing on behalf
of the State of West Bengal that if Regulation 9(IV) is considered to
be limited only to reservations in favour of SC/ST/OBC, then the proviso
is not in the form of an exception as it is independently dealing with in- G
service doctors. The proviso then becomes substantive provision and
is more concerned with the marks to be allocated which is the concern
of Regulation 9(III). This proviso confers a discretion on the State to
provide for weightage in marks for services rendered in remote or
difficult areas. The proviso was required because Regulation 9(III) H
622 SUPREME COURT REPORTS [2020] 8 S.C.R.
A prescribes for the obtaining of minimum marks in the NEET exam. The
States could not have relaxed or tinkered with the marking system.
Therefore, proviso enables the State by conferring a discretion to provide
for weightage. The proviso has nothing to do with the reservation in
the postgraduate degree courses and it will not negate the States power
to make reservation;
B
4.11.1 Regulation 9(VII) provides that 50% of the seats in
postgraduate diploma courses shall be reserved for medical officers in
the government service. Firstly, this Regulation merely deals with
diploma courses and has no relevance to postgraduate degree courses.
Secondly, this provision makes it an obligation on the part of the State
C to reserve 50% seats for in-service doctors. The State, is therefore,
left with no discretion and is bound to make such reservations in diploma
courses. This provision would not negate the discretionary power of
the State Government to make reservation for in-service doctors.
4.11.2 Regulation 9 contains no specific clause or expression
D which would indicate that the field of making reservations for in-service
doctors in the postgraduate degree courses has been covered. Hence,
Regulation 9 is not a complete and exhaustive code;
4.11.3 That by making Regulation 9(IV) and 9(VII), the intention
is not to exclude reservation for in-service candidates in postgraduate
E degree courses. If the language in the provision was instead of ‘may
be given’, ‘shall be given’, the proviso could have become mandatory.
Consciously such mandatory language is not used in the proviso.
However, if the mandatory language in the nature of ‘shall be given’
was used, then the only way the States could have recognised the in-
F service candidates entitlement to postgraduate courses would have been
by way of granting incentive as provided therein. Since the language
does not indicate that such course is mandatory and is only an enabling
provision, the State Rules/Act or directions issued by the respective State
Governments providing for reservation for in-service candidates in
postgraduate degree courses is not incompatible with the proviso to
G clause IV of Regulation 9. It is submitted that unless there is express
or implied prohibition of reservation of seats, contained in the MCI
Regulations, for in-service candidates in admission to postgraduate
degree courses, no incompatibility between the two arises.
5. Learned counsel appearing on behalf of the Medical Council
H of India has made the following submissions against the power of the
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 623
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
States to make reservation of seats for in-service candidates in Post- A
graduate Degree Courses and also in favour of validity of the Regulation
9 of the MCI Regulations, 2000:
5.1. MCI has framed a comprehensive scheme for admission to
Post-graduate Medicine (Degree and Diploma) Courses in the form of
Regulation 9 of the MCI Regulations, 2000. The scheme envisaged B
under Regulation 9 for admission to Post-graduate Medicine (Degree
and Diploma) is to be read as a whole. The Regulation 9 when read
as a whole show that it is in-service doctors, i.e. doctors who have
served in remote and difficult or rural areas notified by the State
Government, are given the maximum benefit under the said scheme as
compared to other candidates. The benefit given to the in-service C
doctors is in the form of; (1) reservation in Post-graduate diploma
courses; and (2) grant of incentive marks in terms of Regulation 9(IV)
of MCI Regulations, 2000. The option of availing incentive marks for
Post-graduate degree courses or seeking reservation in post-graduate
degree courses is only available to in-service candidates and the said D
option is not available to a non-service candidate;
5.2. Indian Medical Council Act, 1956 and the Regulation framed
thereunder are traceable to Entry 66 of List I of Schedule VII of the
Constitution of India and Entry 66 of List 1 provides for “Co-ordination
and Determination of Standards” in the field of higher and technical E
education or research. The standard, criteria, manner and basis of
granting admission in medicine courses fall within the exclusive domain
of the Medical Council of India. Regulation 9(IV) prescribes the criteria
for determination of merit on the basis of which admissions to be granted
to students in post-graduate degree courses;
F
5.3. The power of the State under Entry 25 of List III to make
laws is subject to Entry 66 of List I of Schedule VII of the Constitution.
The primacy will have to be given to Legislation framed by the
Parliament or delegated legislation made in exercise of powers conferred
under such Legislation on matters under Entry 25 of List III, over the
Legislation/delegated legislation framed by the State Legislature or G
authority 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
12
(1999) 7 SCC 120 H
624 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Council of India is empowered to prescribe, inter alia, standards of post-
graduate medication education. It is further observed that in exercise
of its powers under Section 20 r/w Section 33 of the Indian Medical
Council Act, the MCI has framed the Regulations which govern post-
graduate medical education. These Regulations therefore, are binding
and the States cannot in the exercise of power under Entry 25 of the
B
List III, make rules and regulations which are in conflict with or
adversely impinge upon the Regulations framed by the Medical Council
of India for post-graduate medical education. Heavy reliance is placed
upon para 52 and 53 of the said decision;
5.5. That in the case of Modern Dental College and Research
C Centre (Supra) this Court has also further observed that exercise of
powers by the State Legislature on any matter under Entry 25 of List
III is circumscribed by the power under Entry 66 of List I and the latter
shall have primacy over the former. Reliance is placed upon paras 102
and 104 of the said decision.
D 6.0. Now, so far as submission on behalf of the respective
petitioners on conversion of seats of Post-graduate Diploma Course into
seats of Post-graduate Degree pursuant to the Notification dated
12.07.2018, it is vehemently submitted that as such when the reference
was made to a Larger Bench and even in the original writ petition
E conversion of seats was not the issue much less any basis for the said
reference. It is submitted that therefore, the issue of conversion of seats
is a separate and distinct issue and a separate cause of action, which
is sought to be clubbed with the present petition.
It is submitted that however as submissions have been made on
F this aspect, it is submitted as under:
A. Conversion of seats from post-graduate diploma to
degree is optional and not mandatory. No College/
Institution was compelled or forced to opt for such
conversion;
G B. The provisions for conversion was introduced as over
the past years the students, medical colleges, State
Government and other stake holders have complained
about the scarcity of seats in the post-graduate degree
courses which is the most preferred choice of students;
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 625
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
C. To give an option to the States where the requirement A
of doctors post-graduate degrees is more to avail the
benefit of conversion;
D. This provision was not meant to take away or do away
with the in-service reservation in post-graduate diploma
courses. If any State/Government Medical College B
wants more diploma holders then it can retain those
seats.
6.1. Now so far as submission on behalf of the respective
petitioners and the respective States that on conversion of post-graduate
diploma seats into degree seats in-service candidates are deprived of C
reservation in diploma courses, it is submitted that as such Government
Medical Colleges and other Medical Institutions in the State of Tamil
Nadu and other States have consciously and unconditionally chosen to
opt for conversion of seats. In fact, this conversion of seats helps the
in-service doctors also as there are a greater number of seats in post-
graduate degree courses for which they can compete; D
6.2. It is submitted that any reservation for in-service candidates
in post-graduate degree course at this stage will give unfair advantage
to in-service candidates over other candidates by increasing their seat
share in the said degree courses;
E
6.3. That the Government Medical Colleges/Private Medical
Colleges/Deemed Universities are keen to secure permission from
Government of India for post graduate degree courses only, since post
graduate diploma courses is not the preferred choice of the students.
In any case, the data in the table given below indicates that not all post
graduate diploma seats across the Country have not been converted to F
post-graduate degree course. Many States have not opted for conversion
of seats in their medical colleges;
6.4. It is important to take into consideration that if 30%
reservation of seats in post-graduate degree courses is reserved for
in-service candidates in State quota, then a major chunk of these seats, G
particularly seats in clinical subjects will be reserved for in-service
candidates only;
6.5. Now so far as submission on behalf of in-service candidates
that diploma seats for which reservation of in-service candidates is
permitted under Regulation 9(VIII) of MCI Regulations, upon H
626 SUPREME COURT REPORTS [2020] 8 S.C.R.
A conversion into post-graduate degree seats, will continue to be reserved
for in-service candidates, it is submitted that the said contention is
devoid of merit and liable to be rejected since once the seats in post-
graduate diploma courses are converted to post-graduate degree courses
then the nature and colour of the said seat itself changes and it will be
governed by Regulation 9 (IV) and not Regulation 9(VIII) of the MCI
B
Regulations. It is submitted that grievance of the petitioners, if any, as
a result of conversion is because of the action of their State
Governments in applying for conversion of seats;
6.6. There is clear cut distinction in post-graduate diploma seats
and post-graduate degree courses and both serve different purposes.
C The conversion of post-graduate diploma seats into post-graduate degree
courses is only an enabling provision which gives discretion to the State
Government/Medical Institutes to opt for such conversion. It is not in
any manner intended to do away with the reservation in post-graduate
diploma courses under Regulation 9(VIII) of the MCI Regulations,
D 2000;
6.7. Regulation 9(IV) of the MCI Regulations, 2000 serve a large
public interest and it is an objective way of determining merit. Regulation
9(IV) of the Regulations based on the objective consideration, rational,
reasonableness and balances the competing interest of in-service
E candidates and non-service (direct) candidates as well as the interest
of State to have doctors serving in remote and difficult or rural areas
of the State and at the same time also ensuring that there is no
compromise of merit;
6.8. It is submitted that therefore, as there is already provision
F for in-service candidates in Regulation 9 framed by the MCI framed
in exercise of powers under Section 20 r/w 33 of the India Medical
Council Act 1956 and the MCI Act has been enacted by the Central
Government under Entry 66 of list I and even otherwise Entry 25 of
List III empowers the Union also to enact the law and therefore, also
in view of MCI Regulations, 2000 which were found place before the
G Parliament and ascent of the President, State cannot have the power
on the same subject under Entry 25 of List III and any law by the State
shall be repugnant to Central Act.
7.0. Shri Aman Lekhi, learned ASG appearing on behalf of the
Union of India has made the following submissions:
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 627
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
7.1. That the decision of this Court in the case of Dinesh Singh A
Chauhan (supra) is a correct law. That the said decision is consistent
with the Article 246 r/w Entry No. 66 of List I and Entry 25 of List III
of 7th schedule of the Constitution; it would not be correct to say, as
mentioned in the Referral Order, that the Legislative Entries were not
considered in judgment of Dinesh Singh Chauhan (supra). As such
B
in para 24, this Court has specifically approved the judgment in the case
of Preeti Srivastav (supra) and has specifically referred Entry 66 of
List I and has clearly held that Central Legislation and Regulations must
prevail; that the judgment in the case of Dinesh Singh Chauhan(
supra) does not digress from the law laid down by the Constitution
Benches. C
Apart from the fact that the judgment in the case of R.
Chitralekha vs. State of Mysore13, specifically negative the contentions
raised by the petitioner, it is to be noted that the said decision was prior
to deletion of entry 11 List II and insertion of Entry 25 List III in the
7th Schedule of the Constitution; D
7.2. It is submitted that at the time when the judgment in the
case of R. Chitralekha (supra) was passed there was no Entry 25 in
List III (which came after the 42nd Amendment) and the two Entries
which were relevant for controversy in the said case were Entry 66 of
List I which has not been amended till now, and Entry 11 of List II. E
The State therefore, had the power under Article 246(3) read with Entry
11 to legislate in respect of ‘education’ subject to Entry 66 of List I.
The expression ‘education’ was held in Gujarat University v. Krishna
Ranganath Mudholkar14 (para 23) to be wide important and include
all matters related to imparting and regulating education. Admittedly,
there was no Central Enactment or regulation framed under Entry 66 F
of List I which was to be considered by this Hon’ble Court in the case
of R. Chitralekha (supra);
7.3. That prior to the deletion of entry 11 of List II and insertion
of Entry 25 of List III, the Union Parliament could not deal with the
issue of imparting and regulating of the education which vested G
exclusively in the State Legislature. The power of State Legislature
relating to ‘education’ was taken away only to the extent Entry 11 of
List II was made subject to relevant entries in the List I including Entry
13
(1964) 6 SCR 368
14
AIR 1963 SC 703 = 1963 Supp (1) SCR 112 H
628 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 66 and Entry 25 of List III at the relevant time dealt only with ‘vocational
and technical training of labour;
7.4. In facts of R. Chitralekha (supra) the Court found that the
exercise of power impugned in the said case of admitting students on
the basis of higher or different qualification than those prescribed by
B the University was not illegal as the procedure adopted only contained
a criteria to limit the admission of students into colleges from amongst
those who secured the minimum qualifying marks prescribed. In other
words, the State Government did not transgress into any forbidden are
in the said case;
C 7.5. The instant case however deals with the situation where
Entry 11 is shifted from List II to List III as Entry 25, which Entry
enlarges the field (now concurrently vested with the State Legislature
and Union Parliament) beyond ‘Universities’ to ‘technical education’
and ‘medical education’ also while retaining ‘vocational and technical
training of labour’ in the original Entry;
D
7.6. The consequence of this change is that the State Legislature
does not have exclusive power over imparting and regulating of
education. And where the Centre has legislated on this subject, the State
Legislature would be denuded of its power subject of-course to Article
254 of the Constitution (which has not been invoked). In the absence
E of such legislative power even executive power would not be available
to the State Government;
7.7. Section 10 D has been inserted into Medical Council of India
Act (on 24.5.2016) prescribing a uniform entrance examination ‘in such
manner as may be prescribed.’ Section 10 D has to be read with
F Section 33 (mb) of the Act empowering the MCI to make regulation
concerning the manner of conducting uniform entrance examination both
at the undergraduate and post-graduate level. In exercise of the power
so conferred Post-graduate Regulations were amended in 2018;
7.8. Regulation 9(IV) deals with “All India merit list as well as
G State-wise merit list” on the basis of marks obtained in NEET for
admission to “post-graduate courses (both degree and diploma). The
proviso to Regulation 9(IV) stipulates that “in determining the merit of
the candidates” weightage in marks would be given as provided. This
is not a substantive provision as argued and is clearly a proviso to
Regulation 9 (IV);
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 629
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
7.9. Unlike Regulation 9(IV) which deals with both post-graduate A
degree and diploma courses, Regulation 9(VIII) deals only with “Post-
graduate Diploma Courses” and provides for reservation in the manner
stipulated therein. Regulation 9(VIII) is therefore, a special provision
which will apply only to the subject within its scope clearly indicating
that the reservation is limited to diploma courses only. Regulation 9
B
dealing both with ‘determination and coordination of standards’ and
‘regulation’ of education has correctly been described as a complete
code. Not only can there be no interference with the standard prescribed
but there also being regulation of the manner in which standards are to
apply by the MCI under a Central enactment, the State Government
cannot interfere with or modify the same; C
7.10. In view of the specific provision for in-service candidates
in the MCI Regulations, 2000 framed by the Medical Council of India,
more particularly, Regulation 9(IV) r/w 9(VII)/(VIII) and as Regulation
9 is held to be a complete code and even considering Entry 25 of List
III, the State would not have any power to legislate anything contrary D
to MCI Regulations, 2000, more particularly Regulation 9 and cannot
have any power to make provision for reservation for in-service
candidates in post-graduate degree course. Any law framed and/or to
be framed, therefore, would be repugnant to MCI Regulations, 2000
framed by the Medical Council of India, framed in exercise of powers
under Section 20 r/w Section 33 of the MCI Act, 1956. E
8.0. Learned counsel appearing on behalf of the private
respondents in the case of State of West Bengal opposing the
reservation for in-service candidates has made the following
submissions:
F
8.1. There is no legislation in the State of West Bengal providing
for reservation for in-service candidates. The office memorandum dated
18.4.2013, is only an executive instruction, which has been relied upon
by the State Government did not find any mention in the original records
of the Government when perused by the Division Bench of the High
Court while examining the reasons recorded by the State Government G
for grant of such reservation;
8.2. Further, merit has become casualty by such reservation in
the State of West Bengal. The country definitely wants more doctors
but moreover it needs qualified specialists. Reservation at higher level
of professional courses such as medicine should be minimal. Learned H
630 SUPREME COURT REPORTS [2020] 8 S.C.R.
A counsel has taken us to submission with respect to allotment of PG seats
and corresponding rank of open category and in-service candidates from
the written submissions. It is submitted that therefore, merit has become
casualty by such reservation in the State; that the NEET-PG Notification
for admission to PG Medical Courses throughout the country was
published on 07.09.2018. NEET-PG 2019 result was published on
B
31.1.2019. As per the MCI Regulations, State quota counselling to
commence from 25.3.2019. Before that open category candidates made
a representation to the State as well as WBUHS (University) on
5.3.2019 citing Regulation 9(IV) of the MCI Regulations, 2000 as well
as judgment of this Court in the case of Dinesh Singh Chauhan (supra)
C and the order of the Constitution Bench of this Court in the case of
Tamil Nadu Medical Officers Association v. Union of India 15
requesting Government not to reserve any seats for in-service
candidates. That the said representation has neither been annexed nor
referred to in the special leave petition by the State. That the counselling
notice by the university was dated 12.03.2019, in which, there was no
D
mention of any reservation for in-service candidates. There was specific
mention for SC/ST/OBC/PH reservation. Result of round -1 counselling
was published on 3.4.2019. Again, a legal notice and the representation
was made on 18.4.2019 to make admissions in accordance with MCI
Regulations and decision of this Court in the case of Dinesh Singh
E Chauhan (supra). Provisional List for 2nd round was published on
20.4.2019 without considering the representation. Immediately on
23.4.2019 writ petition was filed. On 26.4.2019 learned Single Judge
granted stay on further counselling. On 1.5.2019 the learned Single
Judge modified the interim order that counselling may take place but
no admission. That thereafter, the interim order passed by the learned
F
Single Judge was modified by the Division Bench and direction was
issued to complete admission in view of cut-off date of 30.05.2019 but
directed that all admissions shall be subject to final outcome of writ
petition; all admitted students to file an undertaking; no equities to be
claimed. SLP was preferred against the interim order passed by the
G Division Bench dated 30.05.2019 before this Court. In that MCI
supported and submitted that there cannot be any reservation of seats
for in-service candidates. This Court disposed of the SLP with a request
to the learned Single Judge to hear the case on day to day basis and
decide it expeditiously. That by judgment and order dated 19.08.2019
15
H (2018) 17 SCC 426
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 631
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
the learned Single Judge allowed the writ petitions and quashed the A
reservation 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 fresh
combined list. That thereafter, impugned judgment and order came to
be passed by the Division Bench. It is submitted that therefore, the
B
general category candidates made their grievance against the
reservation for in-service candidates from the very beginning and well
in advance and therefore, there is no delay on their part and therefore,
the direction issued by the Division Bench be directed to be complied
with. As directed by the learned Single Judge and thereafter confirmed
by the Division Bench, in-service candidates now cannot be permitted C
to claim equity;
8.3. That in-service candidates are not meritorious and by such
reservation the meritorious general category candidates and non- service
candidates who have secured more marks in NEET and competitive
examination will have to suffer; (a) Medical Council of India has been D
constituted as an expert body to control the minimum standards of
medical education and to regular their observance; (b) Compliance with
regulations framed by MCI are mandatory inasmuch as enforcement
of these regulations are directly relatable to quality of medical
professionals; (c) Regulations framed by the MCI are with prior
approval of the Central Government in terms of Section 33 of the Indian E
Medical Council Act, 1956 and are binding in nature; (d) Aforesaid
binding nature is apparent from a perusal of constitutional scheme for
enactment of the Indian Medical Council Act, 1956. Entry 66 of List I
of the seventh schedule provides for ‘co-ordination and determination
of standards in institutions for higher education or research and scientific F
and technical institution’. Entry 25 of List III in the seventh schedule
of the Constitution provides for ‘Education including technical education,
medical education and universities, subject to the provisions of entries
63,64,65 and 66 of List I’; It emerges from a conjoint reading of Entry
66 of List I and Entry 25 of List III that because the Parliament
occupies the field earmarked for it under Entry 66 of List I or its G
concurrent powers as per Entry 25 in the concurrent list, the question
of admission of students to any medical course would mandatorily have
to be in compliance of the said law framed with reference to Entry 66
of List I which is the MCI Act, 1956;
H
632 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 8.4. As per catena of decisions, norms of admission including
reservation directly affect the standards of education and therefore, the
State cannot frame a law breaching the standards laid down by the
MCI. Hence reliance is placed on the following decisions:
(1) Preeti Srivastava (supra);
B (2) Narayan Sharma (Dr) vs. Pankaj Kr. Lekhar (Dr)16;
(3) Modern Dental College and Research Centre
(supra);
(4) Dinesh Singh Chauhan (supra); and
C (5) Tamil Nadu Medical Officers Association vs. Union
of India reported in (2018) 17 SCC 426.
8.5. That selection to Post-graduate Courses stands completely
covered by Regulation 9 of the MCI Regulations, 2000. In support of
the above, followings submissions are made:
D
I. MCI Regulations, 2000 were notified after prior approval
from Central Government under Section 33 of the MCI
Act. The objective of the regulations is to produce
competent specialists and/ or Medical teachers;
II. Regulation 9 prescribes for manner and mode of
E selection of Post-graduate students which affirms the
primacy of merit in selection of candidates to Post-
graduate Courses by way of common entrance
examination, i.e. NEET;
III. Regulation 9 further makes a distinction in manner and
F mode of selection for candidates to ‘Post-graduate
Diploma’ courses and ‘Post-graduate Degree’ courses;
IV. Manner of determination of academic merit is prescribed
under Regulation 9(4);
G V. Proviso to Regulation 9(4) provides as under:
“Provided that that in determining the merit of candidates
who are in service of Government/ Public Authority,
weightage in the marks may be given by the Government /
Competent Authority, as an incentive up to 10% of the marks
16
H (2000) 1 SCC 44
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 633
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
obtained for each year of service in remote and / or difficult A
areas or rural areas up to maximum of 30% of the marks
obtained in National Eligibility-cum-Entrance Test. The
remote and / or difficult areas or rural areas shall be as
notified by State Government /Competent Authority from time
to time.”
B
VI. It emerges from a perusal of the above regulation that (i)
PG Degree is distinct and different from a PG diploma which is clear
from perusal of Regulation 9(VIII) wherein 50% seats are reserved
for aforesaid Government medical officers who fulfil the requirements
of service in notified areas (ii) In matters of selection to PG Courses,
inter-se merit is the determinative factor, (iii) In determination of merit, C
the State Government may, with a view to incentivize such service, give
weightage in the marks for service in ‘remote’ or ‘difficult’ areas and
(iv), the remote and difficult areas shall be notified by State Government
from time to time;
VII. There is no provision for ‘reservation’ of seats for such D
candidates who may have rendered service in remote or difficult areas.
At best, and strictly as a policy measure, the State Government may
provide weightage as incentive and nothing more;
VIII. Therefore, Regulation 9 as per its letter and purport clearly
provides only for weightage, and not reservation. The same has been E
so done, in order to incentivize the candidates to render service in
‘remote’ and ‘difficult’ areas and at the same time, ensure that
requirement of ‘inter-se merit’ is not diluted by introduction of a scheme
of reservation;
8.6. That Regulation 9 is a ‘complete code’ governing selection F
to PG Courses. In support of the above, following submissions are
made:
A. There is no provision in the Indian Medical Council Act,
1956 and MCI Regulations, 2000 stipulating reservation
for in-service candidates against the 30% seats in “Post- G
graduate Degree Course’;
B. However, the provision is only to give weightage of
marks to in-service candidates who had worked for
specified period in notified remote, difficult or backward
areas of the State; H
634 SUPREME COURT REPORTS [2020] 8 S.C.R.
A C. The State Governments in view of the fact that MCI
Regulations have statutory primacy in matters of medical
education, could not have framed any statutory Rules
or notify a contrary provision by an executive fiat;
D. After having examined the entire Regulation 9 as a
B whole, in the case of Sudhir N (supra), it is held that
Regulation 9 is a complete code in relation to selection
to Post-graduate course.
8.7. That when Regulations prescribe for selection in a certain
manner, it must be done in that manner alone and not otherwise.
C The MCI Regulations governed the field of admission to PG
Courses and Regulation 9 of the MCI Regulations, 2000 is a self-
contained code and Regulation 9 does not provide for anything other
than weightage, and that too, upon identification of remote & difficult
areas by the State Government, the State could not have provided for
D any reservation for in-service candidates contrary to the Central Act
and the MCI Regulations, 2000;
8.8. Thus, the State is not competent to separately reserve a
specific number of seats for candidates who have served in notified
areas. Such candidates who had rendered services in notified rural and
E difficult areas are entitled to weightage in terms of proviso to Regulation
9(IV);
8.9. Regulations have been framed with a conscious decision to
not provide any reservation, as the same shall invariably have an adverse
effect on the inter-se merit and many candidates merely by virtue of
F being in–service candidates may steal a march over candidates higher
in merit;
8.10. That the provisions regarding giving weightage to the
in-service candidates by way of incentive marks has been introduced
in larger public interest and the same is just, rational and proper and
there was no occasion to enlarge the scope and provide for reservation,
G
when the regulation itself does not contemplate any such reservation;
8.11. The State is obliged to adopt a procedure as stipulated by
the Central Act and Regulation framed thereunder;
8.12. That when there is categorical expression of weightage, it
H would automatically exclude reservation in cases of admission to PG
Degree courses;
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 635
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
8.13. Regulation 9 even if read liberally does not provide for A
reservation for in-service candidates, but only for giving a weightage
in the form of incentive marks as specified to the class of in-service
candidates (who have served in notified remote and difficult areas in
the State);
8.14. Any reservation at the stage of Post-graduate Medical B
education will necessarily result in dilution of minimum standards and
merit and will therefore, be contrary to the objective of the regulation
itself;
8.15. Providing any reservation despite the same not being
provided for in the Regulations would be akin to redrafting the C
Regulations itself. After due deliberations and keeping in mind the past
experience, Medical Council of India has framed Regulations inter alia
providing for giving incentive marks to in-service candidates who have
worked in notified remote and difficult areas in the State to determine
their merit. The Regulation, as has been brought into force, after
successive amendments, and providing any reservation contrary to the D
regulation would undo the regulation itself.
9. In the case of Dinesh Singh Chauhan (supra), the very
Regulation 9(IV) and 9(VII) fell for consideration. In the case of
Dinesh Singh Chauhan (supra), after considering the decision of this
Court in the case of Preeti Srivastava (supra), in para 24, it is held E
as under:
“24. By now, it is well established that Regulation 9 is a self-
contained code regarding the procedure to be followed for
admissions to medical courses. It is also well established that the
State has no authority to enact any law much less by executive F
instructions that may undermine the procedure for admission to
postgraduate medical courses enunciated by the Central
legislation and regulations framed thereunder, being a subject
falling within Schedule VII List I Entry 66 of the Constitution
(see Preeti Srivastava v. State of M.P. [1999) 7 SCC 120]). G
The procedure for selection of candidates for the postgraduate
degree courses is one such area on which the Central legislation
and regulations must prevail.”
(emphasis supplied)
H
636 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 9.1 Thereafter Regulation 9 has been considered in detail, the
relevant paras are paras 26, 27, 29, 30, 31, 32, 33, 35, 39, 47, which
read as under:
“26. From the plain language of this proviso, it is amply clear
that it does not envisage reservation for in-service candidates in
B respect of postgraduate “degree” courses with which we are
presently concerned. This proviso postulates giving weightage of
marks to “specified in-service candidates” who have worked in
notified remote and/or difficult areas in the State—both for
postgraduate “degree” courses as also for postgraduate
“diploma” courses. Further, the weightage of marks so allotted
C is required to be reckoned while preparing the merit list of
candidates.
27. Thus understood, the Central enactment and the regulations
framed thereunder do not provide for reservation for in-service
candidates in postgraduate “degree” courses. As there is no
D express provision prohibiting reservation to in-service candidates
in respect of admission to postgraduate “degree” courses, it was
contended that providing for such reservation by the State
Government is not impermissible in law. Further, there are
precedents of this Court to suggest that such arrangement is
E permissible as a separate channel of admission for in-service
candidates. This argument does not commend to us. In the first
place, the decisions pressed into service have considered the
provisions regarding admission process governed by the
regulations in force at the relevant time. The admission process
in the present case is governed by the regulations which have
F come into force from the academic year 2013-2014. This
Regulation is a self-contained code. There is nothing in this
Regulation to even remotely indicate that a separate channel for
admission to in-service candidates must be provided, at least in
respect of postgraduate “degree” courses. In contradistinction,
G however, 50% seats are earmarked for the postgraduate
“diploma” courses for in-service candidates, as is discernible
from clause (VII). If the regulation intended a similar separate
channel for in-service candidates even in respect of postgraduate
“degree” courses, that position would have been made clear in
Regulation 9 itself. In absence thereof, it must be presumed that
H a separate channel for in-service candidates is not permissible
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 637
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
for admission to postgraduate “degree” courses. Thus, the State A
Government, in law, had no authority to issue a Government Order
such as dated 28-2-2014, to provide to the contrary. Hence, the
High Court was fully justified in setting aside the said government
order being contrary to the mandate of Regulation 9 of the 2000
Regulations, as applicable from the academic year 2013-2014.
B
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 giving
weightage or incentive marks to in-service candidates for
postgraduate “degree” courses entails in excessive or substantial
departure from the rule of merit and equality. For, Regulation 9 C
recognises the principle of giving weightage to in-service
candidates while determining their merit. In that sense, incentive
marks given to in-service candidates is in recognition of their
service reckoned in remote and difficult areas of the State, which
marks are to be added to the marks obtained by them in NEET. D
Weightage or incentive marks specified in Regulation 9 are thus
linked to the marks obtained by the in-service candidate in NEET
and reckon the commensurate experience and services rendered
by them in notified remote/difficult areas of the State. That is a
legitimate and rational basis to encourage the medical graduates/
doctors to offer their services and expertise in remote or difficult E
areas of the State for some time. Indisputably, there is a wide
gap between the demand for basic health care and commensurate
medical facilities, because of the inertia amongst the young
doctors to go to such areas. Thus, giving specified incentive marks
(to eligible in-service candidates) is permissible differentiation F
whilst determining their merit. It is an objective method of
determining their merit.
30. Coming to the next decision pressed into service in State of
M.P. v. Gopal D. Tirthani (2003) 7 SCC 83, it was a case of
conducting separate entrance test for in-service candidates. That G
was frowned upon by this Court. The Court, however, suggested
modality of preparing two separate merit list for the two
categories and merit inter se of the successful candidates to be
assessed separately in the two respective categories. The Court
had examined the question as to whether weightage can be given
H
638 SUPREME COURT REPORTS [2020] 8 S.C.R.
A to doctors for having rendered specified number of years of
service in rural/tribal areas to determine the inter se merit. The
Court analysed four earlier decisions of this Court; to wit, Dinesh
Kumar v. Motilal Nehru Medical College (1986) 3 SCC 727,
Snehelata Patnaik v. State of Orissa (1992) 2 SCC 26,
Narayan Sharma v. Pankaj Kr. Lehkar (2000) 1 SCC 44 and
B
State of U.P. v. Pradip Tandon (1975) 1 SCC 267. The Court
in para 33 observed thus: (Tirthani case (2003) 7 SCC 83, SCC
p. 106)
“33. … The case at hand presents an entirely different scenario.
Firstly, it is a case of postgraduation within the State and not an
C 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, on the view of the law we have taken hereinabove,
the assigning of weightage for service rendered in rural/tribal
areas does not at all affect in any manner the candidates in open
D category. The weightage would have the effect of altering the
order of merit only as amongst the candidates entering through
the exclusive channel of admissions meant for in-service
candidates within the overall service quota. The statistics set out
in the earlier part of the judgment provide ample justification for
such weightage being assigned. We find merit and much
E substance in the submission of the learned Advocate General
for the State of Madhya Pradesh that Assistant Surgeons (i.e.
medical graduates entering the State services) are not
temperamentally inclined to go to and live in villages so as
to make available their services to the rural population; they
F have a temptation for staying in cities on account of better
conditions, better facilities and better quality of life available
not only to them but also to their family members as also
better educational facilities in elite schools which are to be
found only in cities. In-service doctors being told in advance
and knowing that by rendering service in rural/tribal areas
G they can capture better prospects of earning higher
professional qualifications, and consequently eligibility for
promotion, acts as a motivating factor and provides incentive
to young in-service doctors to opt for service in rural/tribal
areas. In the set-up of health services in the State of Madhya
H Pradesh and the geographical distribution of population, no
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 639
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
fault can be found with the principle of assigning weightage A
to the service rendered in rural/tribal areas while finalising
the merit list of successful in-service candidates for admission
to PG courses of studies. Had it been a reservation,
considerations would have differed. There is no specific challenge
to the quantum of weightage and in the absence of any material
B
being available on record we cannot find fault with the rule of
weightage as framed. We hasten to add that while recasting and
reframing the rules, the State Government shall take care to see
that the weightage assigned is reasonable and is worked out on
a rational basis.”
31. However, in the present case, the Medical Council of India C
itself has framed a regulation predicating one merit list by adding
the weightage of marks assigned to in-service candidates for
determining their merit in NEET.
32. The imperative of giving some incentive marks to doctors
working in the State and more particularly serving in notified D
remote or difficult areas over a period of time need not be
underscored. For, the concentration of doctors is in urban areas
and the rural areas are neglected. Large number of posts in public
healthcare units in the State are lying vacant and unfilled in spite
of sincere effort of the State Government. This problem is faced E
by all States across India. This Court in Snehelata case (1992)
2 SCC 26 had left it to the authorities to evolve norms regarding
giving incentive marks to the in-service candidates. The Medical
Council of India is an expert body. Its assessment about the
method of determining merit of the competing candidates must
be accepted as final [State of Kerala v. T.P. Roshana (1979) 1 F
SCC 572 (SCC para 16); also see Medical Council of India v.
State of Karnataka (1998) 6 SCC 131]. After due deliberations
and keeping in mind the past experience, Medical Council of India
has framed regulations, inter alia, providing for giving incentive
marks to in-service candidates who have worked in notified G
remote and difficult areas in the State to determine their merit.
The Regulation, as has been brought into force, after successive
amendments, is an attempt to undo the mischief.
33. As aforesaid, the real effect of Regulation 9 is to assign
specified marks commensurate with the length of service H
640 SUPREME COURT REPORTS [2020] 8 S.C.R.
A rendered by the candidate in notified remote and difficult areas
in the State linked to the marks obtained in NEET. That is a
procedure prescribed in the Regulation for determining merit of
the candidates for admission to the postgraduate “degree” courses
for a single State. This serves a dual purpose. Firstly, the fresh
qualified doctors will be attracted to opt for rural service, as later
B
they would stand a good chance to get admission to postgraduate
“degree” courses of their choice. Secondly, the rural healthcare
units run by the public authority would be benefited by doctors
willing to work in notified rural or difficult areas in the State. In
our view, a Regulation such as this subserves larger public
C interest. Our view is reinforced from the dictum in Snehelata
Patnaik case (1992) 2 SCC 26. The three-Judge Bench by a
speaking order opined that giving incentive marks to in-service
candidates is inexorable. It is apposite to refer to the dictum in
the said decision which reads thus: (SCC pp. 26-27, paras 1-2)
D “1. We have already dismissed the writ petition and special
leave petitions by our order dated 5-12-1991. We would,
however, like to make a suggestion to the authorities for their
consideration that some preference might be given to in-service
candidates who have done five years of rural service. In the
first place, it is possible that the facilities for keeping up with
E the latest medical literature might not be available to such in-
service candidates and the nature of their work makes it
difficult for them to acquire knowledge about very recent
medical research which the candidates who have come after
freshly passing their graduation examination might have.
F Moreover, it might act as an incentive to doctors who had
done their graduation to do rural service for some time.
Keeping in mind the fact that the rural areas had suffered
grievously for non-availability of qualified doctors giving
such incentive would be quite in order. The learned counsel
for the respondents has, however, drawn our attention to the
G decision of a Division Bench of two learned Judges of this
Court in Dinesh Kumar v. Motilal Nehru Medical College
(1986) 3 SCC 727. It has been observed there that merely
by offering a weightage of 15% to a doctor for three years’
rural service would not bring about a migration of doctors from
H the urban to rural areas. They observed that if you want to
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 641
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
produce doctors who are MD or MS, particularly surgeons, A
who are going to operate upon human beings, it is of utmost
importance that the selection should be based on merit. The
learned Judges have gone on to observe that no weightage
should be given to a candidate for rural service rendered by
him so far as admissions to postgraduate courses are
B
concerned (see Dinesh Kumar case (1986) 3 SCC 727, SCC
para 12 at p. 741).
2. In our opinion, this observation certainly does not
constitute the ratio of the decision. The decision is in no
way dependent upon these observations. Moreover, those
observations are in connection with all-India selection and do C
not have equal force when applied to selection from a
single State. These observations, however, suggest that the
weightage to be given must be the bare minimum required
to meet the situation. In these circumstances, we are of the
view that the authorities might well consider giving D
weightage up to a maximum of 5% of marks in favour of
in-service candidates who have done rural service for five
years or more. The actual percentage would certainly
have to be left to the authorities. We also clarify that these
suggestions do not in any way confer any legal right on in-
service students who have done rural service nor do the E
suggestions have any application to the selection of the
students up to the end of this year.”
35. As aforesaid, the Regulations have been framed by an expert
body based on past experience and including the necessity to
reckon the services and experience gained by the in-service F
candidates in notified remote and difficult areas in the State. The
proviso prescribes the measure for giving incentive marks to in-
service candidates who have worked in notified remote and
difficult areas in the State. That can be termed as a qualitative
factor for determining their merit. Even the quantitative factor G
to reckon merit of the eligible in-service candidates is spelt out
in the proviso. It envisages giving of incentive marks @ 10% of
the marks obtained for each year of service in remote and/or
difficult areas up to 30% of the marks obtained in NEET. It is
an objective method of linking the incentive marks to the marks
H
642 SUPREME COURT REPORTS [2020] 8 S.C.R.
A obtained in NEET by the candidate. To illustrate, if an in-service
candidate who has worked in a notified remote and/or difficult
area in the State for at least one year and has obtained 150 marks
out of 200 marks in NEET, he or she would get 15 additional
marks; and if the candidate has worked for two years, the
candidate would get another 15 marks. Similarly, if the candidate
B
has worked for three years and more, the candidate would get
a further 15 marks in addition to the marks secured in NEET.
15 marks out of 200 marks in that sense would work out to a
weightage of 7.5% only, for having served in notified remote and/
or difficult areas in the State for one year. Had it been a case
C of giving 10% marks en bloc of the total marks irrespective of
the marks obtained by the eligible in-service candidates in NEET,
it would have been a different matter. Accordingly, some
weightage marks given to eligible in-service candidate linked to
performance in NEET and also the length of service in remote
and/or difficult areas in the State by no standard can be said to
D
be excessive, unreasonable or irrational. This provision has been
brought into force in larger public interest and not merely to
provide institutional preference or for that matter to create
separate channel for the in-service candidate, much less
reservation. It is unfathomable as to how such a provision can
E be 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 the
question of selection of in-service medical officers for
postgraduate medical education under Section 5(4) of the Kerala
F Medical Officers Admission to Postgraduate Courses under the
Service Quota Act, 2008. The said provision has been extracted
in para 5 of the reported decision. It deals with the finalisation
of select list by the Postgraduate Course Select Committee
strictly on the basis of seniority in service of the medical officers
and following such other criteria as may be prescribed. Dealing
G with that challenge the Court noticed that Regulation 9 is a
complete code by itself and then proceeded to answer the
question whether the State was competent to enact law on the
matter of admission on the basis of inter se seniority of
candidates. In that context, the Court noted that the basis of
H selection must be strictly as per norms specified in the MCI
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 643
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
Regulations. Any law with regard to that will be beyond legislative A
competence of the State Legislature. The Court noted that
weightage for in-service candidates is made permissible by
Regulation 9. That is the limited departure from the merit list
criteria permitted by the Regulation itself. Neither in Sudhir N.
(2015) 6 SCC 685 nor Tirtha (2003) 7 SCC 83 the Court had
B
the occasion to deal with the question regarding challenge to the
proviso to clause (IV) of Regulation 9.
47. We must hold that the High Court was justified in quashing
the 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 High C
Court and instead direct that admission process for academic
year 2016-2017 onwards to the postgraduate degree course in
the State should proceed as per Regulation 9 including by giving
incentive marks to eligible in-service candidates in terms of
proviso to clause (IV) of Regulation 9 [equivalent to third proviso D
to Regulation 9(2) of the old Regulations reproduced in the interim
order dated 12-5-2016]. We, accordingly, mould the operative
order of the High Court to bring it in conformity with the direction
contained in the interim order dated 12-5-2016 but to be made
applicable to academic year 2016-2017 onwards on the basis of
Regulation 9 as in force. We are conscious of the fact that this E
arrangement is likely to affect some of the direct candidates, if
not a large number of candidates whose applications were already
processed by the competent authority for postgraduate degree
course concerned for academic year 2016-2017. However, their
admissions cannot be validated in breach of or disregarding the F
mandate of Regulation 9, as in force. The appeals against the
judgment 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 before G
another Bench of three Judges. The Bench was of the opinion that the
present batch of cases require consideration by a larger Bench and that
is how the present batch of cases are referred to a larger Bench. On
the basis of the submissions made, the following reasons were
mentioned: H
644 SUPREME COURT REPORTS [2020] 8 S.C.R.
A (i) The decision in Dinesh Singh Chauhan (supra) has
not considered the entries in the legislative lists of
the Seventh Schedule, more particularly, Entry 66 of
the Union List and Entry 25 of the Concurrent List;
(ii) The main contention of the petitioners is that while
B coordination and determination of standards in
institutions for higher education falls within the
exclusive domain of the Union (Entry 66 List I),
medical education is a subject in the Concurrent List
(Entry 25 List III). Though, Entry 25 of List III is
subject to Entry 66 of List I, the State is not denuded
C of its power to legislate on the manner and method
of making admission to postgraduate medical
courses.
(iii) The contentions which have been raised in the
present batch of petitions were not addressed before
D this Court in Dinesh Singh Chauhan (supra).
(iv) The judgment in Dinesh Singh Chauhan (supra)
does not consider three decisions of the Constitution
Bench in R. Chitralekha (supra), Chitra Ghosh
(supra) and Modern Dental College & Research
E Center (supra); and
(v) There are decisions rendered by Benches of an equal
strength as in Dinesh Singh Chauhan (supra).
9.3 Therefore, the following issues arise for consideration and
F determination of this Court in the present batch of writ petitions/appeals:
1. What is the scope and ambit of Entry 66 of List I?
2. What will be the impact/effect of MCI Regulations, 2000
framed by the Medical Council of India in exercise of
its powers under Section 33 of the Indian Medical
G Council Act, 1956?
3. Whether in view of Entry 66 of List I, the State is
denuded of its power to legislate on the manner and
method of the postgraduate medical courses, more
particularly, making special provisions for in-service
H candidates in the postgraduate degree/diploma courses?
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 645
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
4. Whether Regulation 9 of MCI Regulations, 2000, more A
particularly, Regulation 9(IV) and 9(VII) takes away the
power of the States under Entry 25 of List III to provide
for a separate source of entry for in-service candidates
seeking admission to postgraduate medical courses?
5. Whether Regulation 9 of MCI Regulations, 2000 is B
understood to not allow for the States to provide for a
separate source of entry for in-service candidates
seeking admission to postgraduate degree courses, the
same is arbitrary, discriminatory and violative of Articles
14 and 19(1)(g) of the Constitution of India, and also
ultra vires of the provisions of the Indian Medical Council C
Act, 1956?
6. Whether Regulation 9 is a complete code in itself, as
observed by this Court in the case of Dinesh Singh
Chauhan (supra) affecting the rights/authority of the
States to provide for reservation and/or separate source D
of entry for in-service candidates seeking admission to
postgraduate degree courses?
10. While considering the aforesaid issues, let us first consider
the scope and ambit of Entry 66 of List I – legislative competence of
the Union in exercise of powers under Entry 66, List I of Schedule E
VII of the Constitution of India.
10.1 In the case of Modern Dental College & Research Centre
(supra), a Constitution Bench of this Court again had an occasion to
deal with and consider Entry 66 List I and Entry 25 List III. After
considering catena of decisions of this Court, more particularly, the F
decisions of this Court in the cases of Gujarat University (supra);
R. Chitralekha (supra); Preeti Srivastava (supra); and Bharati
Vidyapeeth v. State of Maharashtra17, it is held by this Court that
Entry 66 in List I is a specific entry having a very specific and limited
scope. It is further observed by this Court that it deals with G
“coordination and determination of standards” in institution of higher
education or research as well as scientific and technical institutions.
The words “coordination and determination of standards” would mean
laying down the said standards. It is observed that thus, when it comes
17
(2004) 11 SCC 755 H
646 SUPREME COURT REPORTS [2020] 8 S.C.R.
A to prescribing the standards for such institutions of higher learning,
exclusive domain is given to the Union. The relevant observations are
in paragraphs 101 to 105, which read as under:
“101. To our mind, Entry 66 in List I is a specific entry having
a very specific and limited scope. It deals with coordination and
B determination of standards in institution of higher education or
research as well as scientific and technical institutions. The words
“coordination and determination of standards” would mean
laying down the said standards. Thus, when it comes to
prescribing the standards for such institutions of higher learning,
exclusive domain is given to the Union. However, that would not
C include conducting of examination, etc. and admission of students
to such institutions or prescribing the fee in these institutions of
higher education, etc. In fact, such coordination and determination
of standards, insofar as medical education is concerned, is
achieved by parliamentary legislation in the form of the Indian
D Medical Council Act, 1956 and by creating the statutory body
like Medical Council of India (for short “MCI”) therein. The
functions that are assigned to MCI include within its sweep
determination of standards in a medical institution as well as
coordination of standards and that of educational institutions.
When it comes to regulating “education” as such, which includes
E even medical education as well as universities (which are
imparting higher education), that is prescribed in List III Entry
25, thereby giving concurrent powers to both Union as well as
States. It is significant to note that earlier education, including
universities, was the subject-matter of List II Entry 11
F [“11. ”Education” including universities, subject to the provisions
of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III”].
Thus, power to this extent was given to the State Legislatures.
However, this entry was omitted by the Constitution (Forty-second
Amendment) Act, 1976 with effect from 3-7-1977 and at the
same time List II Entry 25 was amended [Unamended Entry 25
G in List III read as: “Vocational and technical training of labour”].
Education, including university education, was thus transferred
to the Concurrent List and in the process technical and medical
education was also added. Thus, if the argument of the appellants
is accepted, it may render Entry 25 completely otiose. When two
H entries relating to education, one in the Union List and the other
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 647
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
in the Concurrent List, coexist, they have to be read A
harmoniously. Reading in this manner, it would become manifest
that when it comes to coordination and laying down of standards
in the higher education or research and scientific and technical
institutions, power rests with the Union/Parliament to the exclusion
of the State Legislatures. However, other facets of education,
B
including technical and medical education, as well as governance
of universities is concerned, even State Legislatures are given
power by virtue of Entry 25. The field covered by List III Entry
25 is wide enough and as circumscribed to the limited extent of
it being subject to List I Entries 63, 64, 65 and 66.
102. Most educational activities, including admissions, have two C
aspects: the first deals with the adoption and setting up the
minimum standards of education. The objective in prescribing
minimum standards is to provide a benchmark of the calibre and
quality of education being imparted by various educational
institutions in the entire country. Additionally, the coordination of D
the standards of education determined nationwide is ancillary to
the very determination of standards. Realising the vast diversity
of the nation wherein levels of education fluctuated from lack
of even basic primary education, to institutions of high excellence,
it was thought desirable to determine and prescribe basic
minimum standards of education at various levels, particularly at E
the level of research institutions, higher education and technical
education institutions. As such, while balancing the needs of States
to impart education as per the needs and requirements of local
and regional levels, it was essential to lay down a uniform
minimum standard for the nation. Consequently, the Constitution- F
makers provided for List I Entry 66 with the objective of
maintaining uniform standards of education in fields of research,
higher education and technical education.
103. The second/other aspect of education is with regard to the
implementation of the standards of education determined by G
Parliament, and the regulation of the complete activity of
education. This activity necessarily entails the application of the
standards determined by Parliament in all educational institutions
in accordance with the local and regional needs. Thus, while List
I Entry 66 dealt with determination and coordination of standards,
on the other hand, the original List II Entry 11 granted the States H
648 SUPREME COURT REPORTS [2020] 8 S.C.R.
A the exclusive power to legislate with respect to all other aspects
of education, except the determination of minimum standards and
coordination which was in national interest. Subsequently, vide
the Constitution (Forty-second Amendment) Act, 1976, the
exclusive legislative field of the State Legislature with regard to
education was removed and deleted, and the same was replaced
B
by amending List III Entry 25 granting concurrent powers to both
Parliament and State Legislature the power to legislate with
respect to all other aspects of education, except that which was
specifically covered by List I Entries 63 to 66.
104. No doubt, in Bharati Vidyapeeth [Bharati
C Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2
SCEC 535] it has been observed that the entire gamut of
admission falls under List I Entry 66. The said judgment by a
Bench of two Judges is, however, contrary to law laid down in
earlier larger Bench decisions. In Gujarat University [Gujarat
D University v. Krishna Ranganath Mudholkar, AIR 1963 SC
703 : 1963 Supp (1) SCR 112] , a Bench of five Judges examined
the scope of List II Entry 11 (which is now List III Entry 25)
with reference to List I Entry 66. It was held that the power of
the State to legislate in respect of education to the extent it is
entrusted to Parliament, is deemed to be restricted. Coordination
E and determination of standards was in the purview of List I and
power of the State was subject to power of the Union on the
said subject. It was held that the two entries overlapped to some
extent and to the extent of overlapping the power conferred by
List I Entry 66 must prevail over power of the State. Validity of
F a State legislation depends upon whether it prejudicially affects
“coordination or determination of standards”, even in
absence of a Union legislation. In R. Chitralekha v. State of
Mysore [R. Chitralekha v. State of Mysore, AIR 1964 SC 1823
: (1964) 6 SCR 368] , the same issue was again considered. It
was observed that if the impact of the State law is heavy or
G devastating as to wipe out or abridge the Central field, it may be
struck down. In State of T.N. v. Adhiyaman Educational &
Research Institute [State of T.N. v. Adhiyaman Educational &
Research Institute, (1995) 4 SCC 104 : 1 SCEC 682] , it was
observed that to the extent that State legislation is in conflict with
H the Central legislation under Entry 25, it would be void and
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 649
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
inoperative. To the same effect is the view taken in Preeti A
Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC
120 : 1 SCEC 742] and State of Maharashtra v. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya [State of
Maharashtra v. Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637] . Though the
B
view taken in State of M.P. v. Nivedita Jain [State of
M.P. v. Nivedita Jain, (1981) 4 SCC 296] and Ajay Kumar
Singh v. State of Bihar [Ajay Kumar Singh v. State of Bihar,
(1994) 4 SCC 401] to the effect that admission standards covered
by List I Entry 66 could apply only post admissions was overruled
in Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) C
7 SCC 120 : 1 SCEC 742] , it was not held that the entire gamut
of admissions was covered by List I as wrongly assumed
in Bharati Vidyapeeth [Bharati Vidyapeeth v. State of
Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] .
105. We do not find any ground for holding that Preeti D
Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC
120 : 1 SCEC 742] excludes the role of States altogether from
admissions. Thus, observations in Bharati Vidyapeeth [Bharati
Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2
SCEC 535] that entire gamut of admissions was covered by List
I Entry 66 cannot be upheld and overruled to that extent. No E
doubt, List III Entry 25 is subject to List I Entry 66, it is not
possible to exclude the entire gamut of admissions from List III
Entry 25. However, exercise of any power under List III Entry
25 has to be subject to a Central law referable to Entry 25.”
(emphasis supplied) F
In the concurring judgment, Bhanumati, J. in paragraphs 131 to
134 and 147 to 149, has held as under:
“131. In order to answer the concern of other Constitution
Framers, Dr Ambedkar went on to clarify the limited scope of G
List I Entry 66 (as in the present form), as proposed by him in
the following words: (CAD Vol. 9, p. 796)
“Entry 57-A merely deals with the maintenance of certain
standards in certain classes of institutions, namely, institutions
imparting higher education, scientific and technical institutions,
H
650 SUPREME COURT REPORTS [2020] 8 S.C.R.
A institutions for research, etc. You may ask, “why this entry?”
I shall show why it is necessary. Take for instance, the BA
Degree examination which is conducted by the different
universities in India. Now, most provinces and the Centre,
when advertising for candidates, merely say that the candidate
should be a graduate of a university. Now, suppose the
B
Madras University says that a candidate at the BA
Examination, if he obtained 15% of the total marks shall be
deemed to have passed that examination; and suppose the
Bihar University says that a candidate who has obtained 20%
of marks shall be deemed to have passed the BA degree
C examination; and some other university fixes some other
standard, then it would be quite a chaotic condition, and the
expression that is usually used, that the candidate should be
a graduate, I think, would be meaningless. Similarly, there are
certain research institutes, on the results of which so many
activities of the Central and Provincial Governments depend.
D
Obviously, you cannot permit the results of these technical and
scientific institutes to deteriorate from the normal standard and
yet 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 introducing
E Entry 66 of the Union List was thus limited only to empowering
the Union to lay down a uniform standard of higher education
throughout the country and not to bereft the State Legislature of
its entire power to legislate in relation to “education” and
organising its own common entrance examination.
F 133. If we consider the ambit of the present Entry 66 of the
Union List; no doubt the field of legislation is of very wide import
and determination of standards in institutions for higher education.
In the federal structure of India, as there are many States, it is
for the Union to coordinate between the States to cause them
G to work in the field of higher education in their respective States
as per the standards determined by the Union. Entry 25 in the
Concurrent List is available both to the Centre and the States.
However, power of the State is subject to the provisions of
Entries 63, 64, 65, and 66 of the Union List; while the State is
competent to legislate on the education including technical
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 651
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
education, medical education and universities, it should be as per A
the standards set by the Union.
134. The words “coordination” and “determination of the
standards in higher education” are the preserve of Parliament
and are exclusively covered by Entry 66 of the Union List. The
word “coordination” means harmonisation with a view to forge B
a uniform pattern for concerted action. The term “fixing of
standards of institutions for higher education” is for the purpose
of harmonising coordination of the various institutions for higher
education across the country. Looking at the present distribution
of legislative powers between the Union and the States with
regard to the field of “education”, that State’s power to legislate C
in relation to “education, including technical education,
medical education and universities” is analogous to that of the
Union. However, such power is subject to Entries 63, 64, 65 and
66 of the Union List, as laid down in Entry 25 of the Concurrent
List. It is the responsibility of the Central Government to D
determine the standards of higher education and the same should
not be lowered at the hands of any particular State.
xxx xxx xxx xxx
147. Another argument that has been put forth is that the power
to enact laws laying down process of admission in universities, E
etc. vests in both Central and State Governments under Entry
25 of the Concurrent List only. Under Entry 25 of the Concurrent
List and erstwhile Entry 11 of the State List, the State
Government has enacted various legislations that inter alia
regulate admission process in various institutions. For instance, F
Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam, Rajiv
Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya Vidhi
Sansathan Vishwavidyalaya Adhiniyam, etc. were established by
the State Government in exercise of power under Entry 25 of
the Concurrent List. Similarly, the Central Government has also
enacted various legislations relating to higher education under G
Entry 25 of the Concurrent List pertaining to Centrally funded
universities such as the Babasaheb Bhimrao Ambedkar
University Act, 1994, the Maulana Azad National Urdu University
Act, 1996, the Indira Gandhi National Tribal University Act, 2007,
etc. The Central Government may have the power to regulate H
652 SUPREME COURT REPORTS [2020] 8 S.C.R.
A the admission process for Centrally funded institutions like IITs,
NIT, JIPMER, etc. but not in respect of other institutions running
in the State.
148. In view of the above discussion, it can be clearly laid down
that power of the Union under Entry 66 of the Union List is limited
B to prescribing standards of higher education to bring about
uniformity in the level of education imparted throughout the
country. Thus, the scope of Entry 66 must be construed limited
to its actual sense of “determining the standards of higher
education” and not of laying down admission process. In no case
is the State denuded of its power to legislate under List III Entry
C 25. More so, pertaining to the admission process in universities
imparting higher education.
149. I have no hesitation in upholding the vires of the impugned
legislation which empowers the State Government to regulate
admission process in institutions imparting higher education within
D the State. In fact, the State being responsible for welfare and
development of the people of the State, ought to take necessary
steps for welfare of its student community. The field of “higher
education” being one such field which directly affects the growth
and development of the State, it becomes prerogative of the State
E to take such steps which further the welfare of the people and
in particular pursuing higher education. In fact, the State
Government should be the sole entity to lay down the procedure
for admission and fee, etc. governing the institutions running in
that particular State except the Centrally funded institutions like
IIT, NIT, etc. because no one can be a better judge of the
F requirements and inequalities-in-opportunity of the people of a
particular State than that State itself. Only the State legislation
can create equal level playing field for the students who are
coming out from the State Board and other streams.”
(emphasis supplied)
G
Thus, as held by the Constitution Bench of this Court in the case
of Modern Dental College (supra), in which this Court considered
catena of earlier decisions of this Court dealing with the scope and ambit
of Entry 66 List I, Entry 66 of List I is a specific entry having a very
specific and limited scope; it deals with “Coordination and Determination
H of Standards” in institutions of higher education or research as well as
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 653
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
scientific and technical institutions. It is further observed that the words A
“Coordination and Determination of Standards” would mean laying down
the said standards and therefore when it comes to prescribe the
standards for such institutions of higher learning, exclusive domain is
given to the Union. It is specifically further observed that that would
not include conducting of examination etc. and admission of students
B
to such institutions or prescribing the fee in these institutions of higher
education, etc. Thus, in exercise of powers under Entry 66 List I, the
Union cannot provide for anything with respect to reservation/
percentage of reservation and/or even mode of admission within the
State quota, which powers are conferred upon the States under Entry
25 of List III. In exercise of powers under Entry 25 List III, the States C
have power to make provision for mode of admissions, looking to the
requirements and/or need in the concerned State.
10.2 We note that as per catena of decisions of this Court,
“institutional preference” in the postgraduate medical courses is held
to be permissible by the concerned States, (see D.N. Chanchala D
(supra); Pradeep Jain v. Union of India 18; Dr. Dinesh Kumar v.
Motilal Nehru Medical College, Allahabad 19; Gujarat University
v. Rajiv Gopinath Bhatt20; AIIMS Students’ Union (supra); Saurabh
Chaudri v. Union of India 21 ; and Yatinkumar Jasubhai Patel
(supra)).
E
10.3 In a recent decision of this Court in the case of Yatinkumar
Jasubhai Patel (supra), the issue of “institutional preference” within
the State quota was considered in which the Gujarat University framed
the rules for the purpose of governing admission to postgraduate courses.
One of the rules provided that 50% of the seats shall be filled in as per
the All India 50% quota and the remaining seats will be available for F
the candidates passing from the Gujarat University. That was provided
to the candidates graduating from the Gujarat University. The aforesaid
rule of “institutional preference” was challenged before the High Court.
The vires of the afore-stated rules providing “institutional preference”
giving preference to the candidates graduated from the Gujarat G
University 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 H
654 SUPREME COURT REPORTS [2020] 8 S.C.R.
A of the NEET and the admissions are given solely on the basis of the
merit and the marks obtained in NEET, the rules providing “institutional
preference” shall be violative of the Indian Medical Council Act, 1956
and the MCI Regulations, 2000 framed under the Indian Medical Council
Act, 1956. The High Court dismissed the writ petition upholding the
“institutional preference”. The same was the subject matter before this
B
Court. It was submitted on behalf of the writ petitioners that even the
MCI Regulations for postgraduate admissions, MCI Regulations, 2000,
do not permit the “institutional preference” and that the MCI
Regulations, 2000 held by this Court to be a complete code and
therefore no reservation is to be provided unless the same is permitted
C under the MCI Regulations, 2000. The decision of this Court in the case
of Dinesh Singh Chauhan (supra) was also placed into service.
However, considering the plethora of decisions of this Court, referred
to hereinabove, this Court has again held that “institutional preference”
is permissible and even the introduction of NEET would not affect the
“institutional preference”. This Court has noted that “institutional
D
preference” up to 50% seats is permissible.
11. Now let us consider the scope and ambit of the MCI
Regulations, 2000, and whether MCI Regulations, 2000 take away the
power of the States under Entry 25 List III to provide for separate
source of entry for in-service candidates seeking admission to
E postgraduate degree courses?
11.1 At this stage, Regulation 9 of MCI Regulations, 2000, as
amended on 15.2.2012, is required to be referred to, which reads as
under:
F “9. Regulation 9, as amended on 15-2-2012, reads as follows:
“9. Procedure for selection of candidate for postgraduate
courses shall be as follows:
(I) There shall be a single eligibility-cum-entrance
examination, namely, “National Eligibility-cum-Entrance
G Test for admission to Postgraduate Medical Courses”
in each academic year. The superintendence, direction
and control of National Eligibility-cum-Entrance Test shall
vest with National Board of Examinations under overall
supervision of the Ministry of Health & Family Welfare,
Government of India.
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 655
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(II) 3% seats of the annual sanctioned intake capacity shall A
be filled up by candidates with locomotory disability of
lower limbs between 50% to 70%:
Provided that in case any seat in this 3% quota remains
unfilled on account of unavailability of candidates with
locomotory disability of lower limbs between 50% to B
70% then any such unfilled seat in this 3% quota shall
be filled up by persons with locomotory disability of
lower limbs between 40% to 50% before they are
included in the annual sanctioned seats for general
category candidates:
C
Provided further that this entire exercise shall be
completed by each medical college/institution as per the
statutory time schedule for admissions.
(III) In order to be eligible for admission to any postgraduate
course in a particular academic year, it shall be D
necessary for a candidate to obtain minimum of marks
at 50th percentile in “National Eligibility-cum-Entrance
Test for Postgraduate courses” held for the said
academic year. However, in respect of candidates
belonging to the Scheduled Castes, the Scheduled Tribes,
the Other Backward Classes, the minimum marks shall E
be at 40th percentile. In respect of candidates as
provided in clause (II) above with locomotory disability
of lower limbs, the minimum marks shall be at 45th
percentile. The percentile shall be determined on the
basis of highest marks secured in the all-India common F
merit list in “National Eligibility-cum-Entrance Test” for
postgraduate courses:
Provided when sufficient number of candidates in the
respective categories fail to secure minimum marks as
prescribed in National Eligibility-cum-Entrance Test held G
for any academic year for admission to postgraduate
courses, the Central Government in consultation with the
MCI may at its discretion lower the minimum marks
required for admission to postgraduate course for
candidates belonging to respective categories and marks
H
656 SUPREME COURT REPORTS [2020] 8 S.C.R.
A so lowered by the Central Government shall be
applicable for the said academic year only.
(IV) The reservation of seats in medical colleges/institutions
for respective categories shall be as per applicable laws
prevailing in States/Union Territories. An all-India merit
B list as well as Statewise merit list of the eligible
candidates shall be prepared on the basis of the
marks obtained in National Eligibility-cum-Entrance
Test and candidates shall be admitted to
postgraduate courses from the said merit lists only:
C Provided that in determining the merit of candidates
who are in service of government/public authority,
weightage in the marks may be given by the
government/competent authority as an incentive at
the rate of 10% of the marks obtained for each year
of service in remote and/or difficult areas up to the
D maximum of 30% of the marks obtained in National
Eligibility-cum-Entrance Test, the remote and difficult
areas shall be as defined by the State Government/
competent authority from time to time.
(V) No candidate who has failed to obtain the minimum
E eligibility marks as prescribed in clause (II) above shall
be admitted to any postgraduate courses in the said
academic year.
(VI) In non-governmental medical colleges/institutions, 50%
(fifty per cent) of the total seats shall be filled by the
F State Government or the Authority appointed by them,
and the remaining 50% (fifty per cent) of the seats shall
be filled by the medical colleges/institutions concerned
on the basis of the merit list prepared as per the marks
obtained in National Eligibility-cum-Entrance Test.
G (VII) 50% of the seats in postgraduate diploma courses shall
be reserved for medical officers in the government
service, who have served for at least three years in
remote and/or difficult areas. After acquiring the PG
diploma, the medical officers shall serve for two more
years in remote and/or difficult areas as defined by State
H
Government/competent authority from time to time.
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 657
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(VIII) The Universities and other authorities concerned shall A
organise admission process in such a way that teaching
in postgraduate courses starts by 2nd May and by 1st
August for super speciality courses each year. For this
purpose, they shall follow the time schedule indicated
in Appendix III.
B
(IX) There shall be no admission of students in respect of
any academic session beyond 31st May for postgraduate
courses and 30th September for super speciality courses
under any circumstances. The universities shall not
register any student admitted beyond the said date.
C
(X) The MCI may direct, that any student identified as
having obtained admission after the last date for closure
of admission be discharged from the course of study,
or any medical qualification granted to such a student
shall not be a recognised qualification for the purpose
of the Indian Medical Council Act, 1956. The institution D
which grants admission to any student after the last date
specified for the same shall also be liable to face such
action as may be prescribed by MCI including surrender
of seats equivalent to the extent of such admission made
from its sanctioned intake capacity for the succeeding E
academic year.”
11.2 Regulations, 2000 are framed by the MCI in exercise of its
powers conferred under Section 33 of the Indian Medical Council Act,
1956. The Indian Medical Council Act, 1956 has been enacted/passed
by the Union in exercise of powers conferred under Entry 66, List I. F
Therefore, the main source of power of the MCI would be from Entry
66 List I. As per Section 33 of the MCI Act, the Council may with the
previous sanction of the Central Government make regulations generally
to carry out the purpose of the said Act. Therefore, in exercise of
powers under Section 33 of the MCI Act, Regulations 2000 are made
by the MCI. As observed hereinabove, the MCI draws the power from G
Entry 66 List I. As observed hereinabove, Entry 66 List I is a specific
entry having a very specific and limited scope which deals with
“Coordination and Determination of Standards” of higher education for
research as well as scientific and technical institutions. In fact, such
“Coordination and Determination of Standards”, insofar as medical H
658 SUPREME COURT REPORTS [2020] 8 S.C.R.
A education is concerned, is achieved by parliamentary legislation in the
form of Indian Medical Council Act, 1956 and by creating the statutory
body like MCI. The functions that are assigned to MCI include within
its sweep “Determination of Standards” in a medical institution as well
as “Coordination of Standards” and that of educational institutions. As
discussed hereinabove, when it comes to regulating “education” as such,
B
which includes even medical education as well as universities, that is
prescribed in List III, Entry 25.
11.3 If one considers the Statement of Objects and Reasons of
the Indian Medical Council Act, 1956, it cannot be said that the Medical
Council of India would have any authority or jurisdiction to frame any
C regulations with respect to reservation and/or making special provision
like providing for a separate source of entry for in-service candidates
seeking admission to postgraduate degree courses. Regulations, 2000
have been made in exercise of powers under Section 33 of the MCI
Act. Section 33 of the MCI Act reads as under:
D “33. Power to make Regulations.The Council may, with the
previous sanction of the Central Government, make regulations
generally to carry out the purposes of this Act, and, without
prejudice to the generality of this power, such regulations may
provide for—
E (a) the management of the property of the Council and the
maintenance and audit of its accounts;
(b) the summoning and holding of meetings of the Council,
the times and places where such meetings are to be held,
the conduct of business thereat and the number of
F members necessary to constitute a quorum;
(c) the resignation of members of the Council;
(d) the powers and duties of the President and
Vice-President;
G (e) the mode of appointment of the Executive Committee
and other Committees, the summoning and holding of
meetings, and the conduct of business of such
Committees;
(f) the tenure of office, and the powers and duties of the
H Registrar and other officers and servants of the Council;
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 659
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(fa) the form of the scheme, the particulars to be given A
in such scheme, the manner in which the scheme is
to be preferred and the fee payable with the scheme
under clause (b) of sub-section (2) of Section 10-
A;
(fb) any other factors under clause (g) of sub-section (7) B
of Section 10-A;
(fc) the criteria for identifying a student who has been
granted a medical qualification referred to in the
Explanation to sub-section (3) of Section 10-B;
(g) the particulars to be stated, and the proof of qualifications C
to be given in applications for registration under this Act;
(h) the fees to be paid on applications and appeals under
this Act;
(i) the appointment, powers, duties and procedure of D
medical inspectors and visitors;
(j) the courses and period of study and of practical training
to be undertaken, the subjects of examination and the
standards of proficiency therein to be obtained, in
Universities or medical institutions for grant of
E
recognised medical qualifications;
(k) the standards of staff, equipment, accommodation,
training and other facilities for medical education;
(l) the conduct of professional examinations, qualifications
of examiners and the conditions of admission to such F
examinations;
(m) the standards of professional conduct and etiquette and
code of ethics to be observed by medical practitioners;
and
(ma) the modalities for conducting screening tests under G
sub-section (4-A), and under the proviso to sub-
section (4-B), and for issuing eligibility certificate
under sub-section (4-B), of Section 13;
(mb) the designated authority, other languages and the
manner of conducting of uniform entrance H
660 SUPREME COURT REPORTS [2020] 8 S.C.R.
A examination to all medical educational institutions at
the undergraduate level and postgraduate level;
(n) any matter for which under this Act provision may be
made by regulations.”
On a fair reading of entire Section 33 of the MCI Act, it does
B not confer any authority and/or power to the MCI to frame the
regulations with respect to reservation in the medical courses, more
particularly, to provide for a separate source of entry for in-service
candidates seeking admission to postgraduate degree courses, as sought
to be contended on behalf of the MCI and counsel opposing for
C providing for a separate source of entry for in-service candidates.
12. In light of the above observations, we shall consider the
relevant provisions of MCI Regulations, 2000, more particularly,
Regulation 9. The title of Regulation 9 is “Procedure for selection of
candidate for postgraduate courses”. Regulation 9(I) provides that there
D shall be a single eligibility-cum-entrance examination, namely, NEET.
Regulation 9(II) further provides that 3% seats of the annual sanctioned
intake capacity shall be filled up by candidates with locomotory disability.
Regulation 9(III) provides for the eligibility criteria. It provides that in
order to be eligible for admission to any postgraduate course in a
particular academic year, it shall be necessary for a candidate to obtain
E minimum of marks at 50th percentile in NEET for postgraduate courses.
However, in respect of candidates belonging to SC/ST/OBC, the
minimum marks shall be at 40th percentile. Thus, it can be seen that
Regulation 9(III) can be said to be providing the standards which shall
be within the domain and legislative competence of the Union and the
F MCI, in exercise of powers under Entry 66, List I. The first part of
Regulation 9(IV) speaks for the reservation of seats in medical colleges/
institutions. It provides that the reservation of seats in medical colleges/
institutions for respective categories shall be as per applicable laws
prevailing in States/Union Territories. It further provides for
preparing all-India merit list as well as State-wise merit list of the eligible
G candidates on the basis of the marks obtained in NEET and candidates
shall be admitted to postgraduate courses from the said merit lists only.
To that stage, it can be said that the same is within the legislative
competence of the Union/MCI, in exercise of powers under Entry 66
List I.
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 661
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However, proviso to Regulation 9(IV) further provides that in A
determining the merit of candidates who are in service of Government/
public authority, weightage in the marks may be given by the
Government/competent authority as an incentive at the rate of 10% of
the marks obtained for each year of service in remote and/or difficult
areas up to the maximum of 30% of the marks obtained in NEET. It
B
further provides that the remote and difficult areas shall be as defined
by the State Government/competent authority from time to time. Thus,
it can be seen that even the proviso can be said to be with respect to
preparing the merit list only.
12.1 As held by this Court in earlier decisions, Regulation 9(IV)
is limited only to reservation in favour of SC/ST/OBC and as per the C
prevailing laws in the States. If that be so, then the proviso which as
such is not dealing with the reservation cannot be said to be in the form
of an exception to first part of Regulation 9(IV) and it can be seen
that it is an independent provision dealing with the in-service candidates
and that too for the purpose of preparing the merit list. Thus, the proviso D
becomes the substantive provision and is more concerned with the
marks to be allocated which is the concern of Regulation 9(III). It is
also required to be noted that even this proviso confers a discretion on
the State to provide for weightage in marks for the services rendered
in remote or difficult areas. The proviso only enables the States by
conferring the discretion for weightage. The proviso has nothing to do E
with the reservation in the postgraduate degree courses and therefore
it shall not negate the State’s power to make reservation and/or make
special provision to provide for a separate source of entry for in-service
candidates seeking admission to postgraduate degree courses. Thus,
Regulation 9(IV) as such cannot be said to be taking away the power F
of the States under Entry 25, List III, to provide for a separate source
of entry for in-service candidates seeking admission to postgraduate
degree courses. Any contrary view would affect the right of the States
to make reservation and/or to make special provision for admission in
exercise of powers under Entry 25 List III. If it is construed that
Regulation 9 of the MCI Regulations, 2000, more particularly Regulation G
9(IV) provides for reservation and/or deals with the reservation for in-
service candidates, in that case, it will be beyond the legislative
competence of the Union as well as it will be ultra vires to the Indian
Medical Council Act, 1956. As observed hereinabove, Section 33 of
the Indian Medical Council Act, 1956 does not confer any power on H
662 SUPREME COURT REPORTS [2020] 8 S.C.R.
A the MCI to make regulations with respect to reservation. At the cost
of repetition, it is observed that “institutional preference”, despite MCI
Regulations, 2000, has been upheld and held to be permissible by the
concerned States.
13. The sum and substance of the above discussion would be
B that,
1) that Entry 66 List I is a specific entry having a very
limited scope;
2) it deals with “coordination and determination of
standards” in higher education;
C
3) the words “coordination and determination of
standards would mean laying down the said
standards;
4) the Medical Council of India which has been
D constituted under the provisions of the Indian
Medical Council Act, 1956 is the creature of the
statute in exercise of powers under Entry 66 List
I and has no power to make any provision for
reservation, more particularly, for in-service
candidates by the concerned States, in exercise of
E powers under Entry 25 List III;
5) that Regulation 9 of MCI Regulations, 2000 does
not deal with and/or make provisions for
reservation and/or af fect the legislative
competence and authority of the concerned States
F to make reservation and/or make special provision
like the provision providing for a separate source
of entry for in-service candidates seeking
admission to postgraduate degree courses and
therefore the concerned States to be within their
authority and/or legislative competence to provide
G
for a separate source of entry for in-service
candidates seeking admission to postgraduate
degree courses in exercise of powers under Entry
25 of List III; and
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 663
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
6) if it is held that Regulation 9, more particularly, A
Regulation 9(IV) deals with reservation for in-
service candidates, in that case, it will be ultra
vires of the Indian Medical Council Act, 1956 and
it will be beyond the legislative competence under
Entry 66 List I.
B
14. Now so far as the law for in-service candidates and the
object and purpose to provide reservation and/or to make special
provision for admission for in-service candidates is concerned, few
decisions of this Court are required to be considered.
14.1 In the case of K. Duraisamy (supra), the Court was C
considering the following provisions of the Government Order dated
9.2.1999 issued by the State of Tamil Nadu:
“7. xxx xxx xxx
“1. (iii) (a) The reservation will be confined to and kept at 50%
in favour of the in-service candidates on merit basis. D
(b) 50% of the seats available in each of the specialities shall
be allotted exclusively to the service candidates.
(c) If a sufficient number of eligible service candidates are not
available for the seats reserved exclusively for them, such
E
vacancies shall be filled up by the non-service candidates from
the merit list/waiting list in the respective reserved compartments.
If vacancies exist even after this, such vacancies shall be filled
up applying the order of preference indicated in the prospectus.
(d) The following categories of Medical Officers only will be
F
treated as service candidates and considered for selection against
50% of seats allocated exclusively for service candidates:
(1) All Medical Officers selected by the TNPSC and
appointed in the Tamil Nadu Medical Services on
regular basis, who have put in minimum of 2 years’
continuous service as on 1-2-1999. G
(2) Medical Officers (or) Health Officers in the Public
Health Department who have been selected by the
TNPSC and working under the control of DPH and PM
and who apply for Public Health course i.e. diploma in
H
664 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Public Health can be considered as service candidates
for DPH as the above qualification namely diploma in
Public Health is essential for declaration of probation.
However, to consider under service quota for MD
(SPM), the candidates must have completed 2 years of
service like the other postgraduate courses.
B
(3) Medical Officers who have put in 2 years of continuous
service and who are working in:
(i) Local bodies/municipalities in Tamil Nadu.
(ii) Government of India institutions in Tamil Nadu.
C
(iii) Public sector undertaking and organisation under the
control of the Government of India in Tamil Nadu.
(iv) Undertakings and organisations of the Government
of Tamil Nadu. These Medical Officers should
D produce bona fide certificates from the authorities
concerned with the declaration to serve in the
respective institutions for a minimum period of 5
years after completion of the course.
In that case, the Government of Tamil Nadu issued G.O dated
9.2.1999 laying down the procedure for selection of candidates for
E
admission to postgraduate diploma, degree, MDS and higher speciality
courses. The Government Order envisaged reservation confining up to
50% in favour of the in-service candidates on merit basis and further
stipulated that 50% of the seats available in each of the speciality shall
be allotted exclusively to the service candidates. The Government Order
F also enumerated various categories of Medical Officers, who alone will
be treated as in-service candidates and considered for selection against
the 50% of the seats allocated exclusively for service candidates. The
aforesaid Government Order was challenged before the High Court.
The learned Single Judge, while allowing the writ petitions held that
reservation of 50% of seats for non-service candidates have to be given
G
effect to or worked out by selecting candidates from in-service and
non-service, on the basis of merit in the first instance and thereafter
the 50% seats reserved for in-service candidates shall be filled up by
the in-service candidates who could not gain selection on the basis of
merit as against the other 50% earmarked as “open”. The learned Single
H Judge was further of the view that there is no category as “non-service
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 665
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
candidates”, and it is only the in-service candidates who form a A
separate class. Aggrieved, some of the selected candidates filed writ
appeals, which came to be dismissed summarily. The appeals filed by
the State came up subsequently before another Division Bench and
finding themselves unable to agree with the order of dismissal of the
earlier appeals, the matters were referred for consideration by a larger
B
Bench. Thereupon the matters were placed before the Full Bench,
which, in turn, reversed the judgment of the learned Single Judge and
dismissed the writ petitions. The judgment of the Full Bench was the
subject matter before this Court. While considering the aforesaid
provisions, this Court answered the question, namely, “could the State
Government have legitimately made a provision allocating 50% of seats C
exclusively in favour of in-service candidates and keep open the avenue
for competition for them in respect of the remaining 50% along with
others”, in affirmative. In paragraphs 8 to 12, it is held as under:
“8. That the Government possesses the right and authority to
decide from what sources the admissions in educational D
institutions or to particular disciplines and courses therein have
to be made and that too in what proportion, is well established
and by now a proposition well settled, too. It has been the
consistent and authoritatively-settled view of this Court that at
the super-speciality level, in particular, and even at the
postgraduate level reservations of the kind known as “protective E
discrimination” in favour of those considered to be backward
should be avoided as being not permissible. Reservation, even if
it be claimed to be so in this case, for and in favour of the in-
service candidates, cannot be equated or treated on par with
communal reservations envisaged under Articles 15(4) or 16(4) F
and extended the special mechanics of their implementation to
ensure such reservations to be the minimum by not counting those
selected in open competition on the basis of their own merit as
against the quota reserved on communal considerations.
9. Properly speaking, in these cases, we are concerned with the G
allocation of seats for admission in the form of a quota amongst
in-service candidates on the one hand, and non-service or private
candidates on the other and the method or manner of working
out in practice the allocation of seats among the members of the
respective category. Could the State Government have
legitimately made a provision allocating 50% of seats exclusively H
666 SUPREME COURT REPORTS [2020] 8 S.C.R.
A in favour of the in-service candidates and keep open the avenue
for competition for them in respect of the remaining 50% along
with others, denying a fair contest in relation to a substantial or
sizeable number of other candidates, who are not in service and
who fall under the category of non-service candidates, will itself
be open to serious doubt. One such attempt seems to have been
B
put in issue before the Madras High Court which held that
reservation in favour of the in-service candidates for the academic
year 1992-93 should be confined to 50% and awarding of two
additional marks, instead of one additional mark for each
completed year of service in primary health centres was
C unconstitutional and when the matter was brought to this Court,
in the decision reported in State of T.N. v. T. Dhilipkumar [(1995)
5 Scale 208 (2)] the decision of the High Court has been upheld.
This Court also further observed that the Government should
appoint a highly-qualified committee to determine from year to
year what, in fact, should be the percentage-wise reservation
D
required for the in-service candidates, having regard to the then
prevailing situation and that the percentage of fifty per cent shall,
if found appropriate, be reduced.
10. The stipulations governing the selection for admissions in
these cases have got to be viewed and construed in the above
E backdrop of events and legal position. The learned Single Judge,
in our view, was certainly not right in equating the provisions
made for allocation of seats in the form of fixation of quota in
this case with the usual form of communal reservations and
allowing himself to be carried away by the peculiar method of
F working out such reservations in order to ensure adequate
representation to such candidates, and applying those principles
to construe a provision of the nature involved in these cases. Yet
another error in the reasoning of the learned Single Judge lies in
his assumption that “open quota” seats have to be thrown open
to all and are meant only to be filled up purely on the basis of
G merit performance and no one from even the class of candidates
in whose favour a special quota has already been provided can
be excluded from consideration as against the “open quota”. This
reasoning of the learned Single Judge not only ignores the object
and scheme underlying the allocation of seats for admissions for
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 667
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
the academic year 1999-2000, but has the consequence of A
rewriting the prospectus and introducing altogether a different
pattern of admissions, overriding the policy of the Government
aimed at meeting out equal justice and affording equality of
opportunity to the different categories classified for the purpose.
If the Government can be said to possess the power to fix a
B
quota for the exclusive benefit of “in-service” candidates, it is
beyond comprehension or dictates of either reason or logic as to
why the Government cannot equally exclusively earmark the
remaining seats in favour of “non-service” or private candidates,
thereby confining the claims of service candidates to the number
of seats earmarked and allocated to them. As there can be a C
classified category of “service candidates”, it is open to the
Government to make classification of all those other than those
falling in the category of service candidates as non-service
candidates and allocate the remaining seats after allotment to the
service candidates for exclusive benefit of the source of non-
D
service or private candidates. There is nothing in law which
deprives the Government of any such powers and no such
impediment has either been brought to our notice at the time of
hearing or seems to have been brought to the notice of the
learned Single Judge to warrant any such construction, as has
been adopted by him. We are also of the view that it does not E
lie in the mouth of the writ petitioners to raise a bogey of selection
based on merit alone, only in respect of a portion of the seats
available for admission to non-service candidates, when they
belong to and are part of a category or class who have got in
their favour fifty per cent of the number of seats in each of the
F
disciplines allocated to their category of “in-service” candidates
to be filled up exclusively from such “in-service” candidates on
the basis of their own inter se merit and not on the overall merit
performance of all the candidates — both in-service and non-
service put together. The writ petitioners are found to have
applied as in-service candidates and merely because they could G
not be selected within the number of seats earmarked for their
category or class on the basis of the inter se merits among their
own class, they cannot be allowed to contend to the contrary in
retrospect and on hindsight experience of having obtained more
marks, than those who got selected as against the seats
H
668 SUPREME COURT REPORTS [2020] 8 S.C.R.
A earmarked and allocated to the non-service candidates. The
justification, both in law and on facts for exclusive allocation and
stipulation of a definite quota or number of seats for non-service
or private candidates, in our view, lies in the very principle which
warranted or enabled the fixation of a quota of fifty per cent of
seats and exclusively allotted to the in-service candidates. Any
B
countenance of such claims of the appellants is likely to also
endanger the very allocation of 50% of the seats exclusively to
the category of in-service candidates, too.
11. On a consideration of the reasoning of the Full Bench as also
the construction placed upon the Government Order and the
C prospectus, we are of the view that the State Government, in
the undoubted exercise of its power, has rightly decided, as a
matter of policy, so far as the admissions to super-speciality-and-
postgraduate diploma/degree/MDS courses for the academic
session 1999-2000 are concerned to have scheme or pattern of
D two sources of candidates based upon a broad classification into
two categories, i.e., in-service candidates and non-service or
private candidates with each one of them allocated exclusively
for their own respective category of candidates fifty per cent of
the seats, the ultimate selection for admission depending upon
the inter se merit performance amongst their own category of
E candidates. As pointed out by the Full Bench, the change in the
nomenclature of the categorisation from “open competition” in
1998-1999, to “open quota” in 1999-2000 and the conspicuous
omission in the scheme and the prospectus for 1999-2000 of a
specific stipulation like the one contained in clause X (5) in the
F prospectus for 1998-1999 that the 50% of the seats available for
open competition shall be made available for selection and
admission of both service and non-service candidates, as also the
stipulation contained in the Government Order and the prospectus
for 1999-2000 under the caption “Criteria for selection under 50%
open quota”, which specifically reads that all other eligible
G Medical Officers except those specified in clause (iii)(d) above
(meaning thereby Medical Officers who will be treated as service
candidates and allowed to apply as such) are eligible to apply
under 50% of the open quota, supports the stand of the State
Government and the Selection Committee and justifies the
H selections for admission already made by them. The further
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 669
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
stipulation that the reservation will be confined to and kept at A
50% in favour of the in-service candidates on merit basis, coupled
with the other provisions noticed above make it abundantly clear
that the selection of the in-service candidates is confined to and
has to be kept at 50% only of the total seats and not against any
of the other seats, exclusively earmarked for the non-service or
B
private candidates.
12. The mere use of the word “reservation” per se does not have
the consequence of ipso facto applying the entire mechanism
underlying the constitutional concept of a protective reservation
specially designed for the advancement of any socially-and-
educationally-backward classes of citizens or for the Scheduled C
Castes and the Scheduled Tribes, to enable them to enter and
adequately represent in various fields. The meaning, content and
purport of that expression will necessarily depend upon the
purpose and object with which it is used. Since reservation has
diverse natures and may be brought about in diverse ways with D
varied purposes and manifold objects, the peculiar principles of
interpretation laid down by the courts for implementing
reservations envisaged under the Constitution in order to ensure
adequate and effective representation to the backward classes
as a whole cannot be readily applied out of context and unmindful
of the purpose of reservations as the one made in this case, more E
to safeguard the interest of candidates who were already in
service to enable such in-service candidates to acquire higher
and advanced education in specialised fields to improve their
professional talents for the benefit of the patients to be treated
in such medical institutions where the in-service candidates are F
expected to serve. That apart, where the scheme envisaged is
not by way of a mere reservation but is one of classification of
the sources from which admissions have to be accorded, fixation
of respective quota for such classified groups, the principles at
times applied in construing provisions relating to reservation
simpliciter will have no relevance or application. Though the G
prescription of a quota may involve in a general sense reservation
in favour of the particular class or category in whose favour a
quota is fixed, the concepts of reservation and fixation of quota
drastically differ in their purport and content as well as the object.
Fixation of a quota in a given case cannot be said to be the same H
670 SUPREME COURT REPORTS [2020] 8 S.C.R.
A as a mere reservation and whenever a quota is fixed or provided
for one or more of the classified group or category, the candidates
falling in or answering the description of different classified
groups in whose favour a respective quota is fixed have to
confine their respective claims against the quota fixed for each
of such category, with no one in one category having any right
B
to stake a claim against the quota earmarked for the other class
or category. Since we are of the view that the Full Bench has
correctly come to the conclusion that the scheme adopted for
selection of candidates for admissions in question provided for a
definite and fixed quota for the respective classified sources of
C admission and the reasons assigned therefor do not suffer from
any 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-service
D candidates in medical colleges – post graduate courses again fell for
consideration before this Court in the case of Gopal D. Tirthani
(supra). In the aforesaid case, the State of Madhya Pradesh, while
making the Madhya Pradesh Medical and Dental PG Entrance
Examination Rules, 2002, provided for reservation of 20% seats in PG
E degree/diploma courses for employees of the Government of Madhya
Pradesh (in-service). The Rules further provided that such in-service
candidates are exempted from pre-PG Entrance Examination and shall
be nominated for doing postgraduation in various degree/diploma
courses as per selection criteria, terms and conditions of employer
Department. The Rules further provided that selection will be done on
F the basis of the individual cumulative performance at the first, second
and third MBBS examinations if such examinations have been passed
from the same university. The Rules which were under challenge before
the High Court further provided that only those candidates who have
completed five years of service under the Government of Madhya
G Pradesh and who are not serving on contractual basis will be eligible
for selection as candidates who are in-service. The Rules further
provided that for the purpose of selection of candidates who are in-
service, 40% of the marks as weightage would be given. The High Court
struck down as ultra vires the PG admission (In-service) Rules, 2002
based on the following findings arrived at by it:
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 671
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
“11. xxx xxx xxx A
“(a) There can be reservation for in-service employees for
postgraduate medical courses and reservation made for
the said employees in the 2002 Rules does not suffer
from any constitutional invalidity.
(b) There has to be a common entrance examination for B
admission in postgraduate medical courses so as to test
the comparative merit.
(c) The ‘In-Service Rules’ which provide for separate and
limited examination for in-service candidates contravene
the basic tenet and principle enunciated in the C
Regulations framed by the Medical Council of India and,
therefore, the same are ultra vires.
(d) Conferral of benefit by grant of weightage to some
in-service candidates/employees on the basis of their
rendering services in rural areas is hit by Article 14 of D
the Constitution as well as stands in oppugnation to the
Regulations framed by the Medical Council of India and
hence, is invalid and is liable to be struck down.
(e) The distinction made between the in-service women
employees/women candidates who have served in rural E
areas for three years and other women candidates who
have rendered service in other areas is discriminatory.
(f) The stance put forth by some of the petitioners that there
has to be some reservation for the category of
employees who are Assistant Surgeons from amongst F
the quota meant for ‘in-service candidates’ is devoid of
any substance and hence, deserves rejection.
(g) The limited and separate examination which has already
been held cannot be given the stamp of approval
because we have already held that In-Service G
Candidates Rules, 2002 are unconstitutional.”
12. In substance, the High Court upheld the validity of reservation
of 20% seats out of the total in favour of in-service candidates.
It held that the in-service candidates and open category
candidates had to be subjected to one common entrance test for H
672 SUPREME COURT REPORTS [2020] 8 S.C.R.
A determining the comparative merit for entrance into the
postgraduate courses of study, and that the holding of two
separate tests — one for in-service candidates and one for open
category candidates — was unsustainable, being in contravention
of the Regulations framed by the Medical Council of India….”
B (emphasis supplied)
Having noted the laudable purpose sought to be achieved by
making special provisions for in-service candidates and having noted,
in-service candidates on attaining higher academic achievements would
be available to be posted in rural areas by the State Government, this
C Court upheld the Rules providing reservation for in-service candidates
in PG courses. The relevant observations are in paragraphs 19 to 21,
which read as under:
“19. The controversy in the present litigation does not concern
the open category candidates; it is confined to the in-service
D candidates. We, therefore, propose to preface our discussion by
determining the nature of 20% seats allocated to the in-service
candidates — whether it is by way of reservation or quota or is
a channel of entry. Our task stands simplified by the law laid
down by a three-Judge Bench decision of this Court recently
in K. Duraisamy v. State of T.N. [(2001) 2 SCC 538] The
E question arose for decision in almost a 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 exclusively
for in-service candidates and left the remaining 50% seats as
open quota i.e. to be filled in from out of such candidates as were
F not in State Government service. The classification was made
as “service quota” and “open quota”, for in-service candidates
and other candidates respectively, confining the respective class/
cadre candidates to the respective percentages earmarked for
the two of them exclusively. The Court held:
G (i) the Government possesses the right and authority to
decide from what sources the admissions in educational
institutions or to particular disciplines and courses therein
have to be made and that too in what proportion;
(ii) that such allocation of seats in the form of fixation of
quota is not to be equated with the usual form of
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 673
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
communal reservation and, therefore, the constitutional A
and legal considerations relevant to communal
reservations are out of place while deciding the case
based on such allocation of seats;
(iii) that such exclusive allocation and stipulation of a definite
quota or number of seats between in-service and non- B
service or private candidates provided two separate
channels of entry and a candidate belonging to one
exclusive quota cannot claim to steal a march into
another exclusive quota by advancing a claim based on
merit. Inter se merit of the candidates in each quota shall
be determined based on the merit performance of the C
candidates belonging to that quota;
(iv) that the mere use of the word “reservation” per se is
not decisive of the nature of allocation. Whether it is a
reservation or an allocation of seats for the purpose of
providing two separate and exclusive sources of entry D
would depend on the purpose and object with which the
expression has been used and that would be
determinative of the meaning, content and purport of the
expression. Where the scheme envisages not a mere
reservation but is one for classification of the sources E
from which admissions are to be accorded, fixation of
respective quota for such classified groups does not
attract applicability of considerations relevant to
reservation simpliciter.
20. K. Duraisamy case [(2001) 2 SCC 538] was considered and F
explained by another three-Judge Bench of this Court in AIIMS
Students’ Union v. AIIMS [(2002) 1 SCC 428] . The following
observation is appropriate and apposite for the purpose of the
case at hand and is, therefore, extracted and reproduced
hereunder. The Court was considering the question of allocation
of seats between in-service and open category candidates, the G
candidates in both the categories being medical graduates, and
not a reservation in favour of the weaker sections of society or
those who deserve or need to be affirmatively discriminated. The
Court then said: (SCC pp. 447-48, para 31)
H
674 SUPREME COURT REPORTS [2020] 8 S.C.R.
A “Some of them had done graduation sometime in the past and
were either picked up in the government service or had sought
for joining government service because, maybe, they could not
get a seat in postgraduation and thereby continue their studies
because of shortage of seats in higher level of studies. On
account of their having remained occupied with their service
B
obligations, they became detached or distanced from
theoretical studies and therefore could not have done so well
as to effectively compete with fresh medical graduates at the
PG entrance examination. Permitting in-service candidates to
do postgraduation by opening a separate channel for
C admittance would enable their continuance in government
service after postgraduation which would enrich health
services of the nation. Candidates in open category having
qualified in postgraduation may not necessarily feel attracted
to public services. Providing two sources of entry at the
postgraduation level in a certain proportion between in-service
D
candidates and other candidates thus achieves the laudable
object of making available better doctors both in public sector
and as private practitioners. The object sought to be achieved
is to benefit two segments of the same society by enriching
both at the end and not so much as to provide protection and
E encouragement to one at the entry level.”
21. To withstand the test of reasonable classification within the
meaning of Article 14 of the Constitution, it is well settled that
the classification must satisfy the twin tests: (i) it must be founded
on an intelligible differentia which distinguishes persons or things
F placed in a group from those left out or placed not in the group,
and (ii) the differentia must have a rational relation with the
object sought to be achieved. It is permissible to use territories
or the nature of the objects or occupations or the like as the basis
for classification. So long as there is a nexus between the basis
of classification and the object sought to be achieved, the
G classification is valid. We have, in the earlier part of the judgment,
noted the relevant statistics as made available to us by the learned
Advocate-General under instructions from Dr Ashok Sharma,
Director (Medical Services), Madhya Pradesh, present in the
Court. The rural health services (if it is an appropriate expression)
H need to be strengthened. 229 community health centres (CHCs)
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 675
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
and 169 first-referral units (FRUs) need to be manned by A
specialists and block medical officers who must be postgraduates.
There is nothing wrong in the State Government setting apart a
definite percentage of educational seats at postgraduation level
consisting of degree and diploma courses exclusively for the in-
service candidates. To the extent of the seats so set apart, there
B
is a separate and exclusive source of entry or channel for
admission. It is not reservation. In-service candidates, and the
candidates not in the service of the State Government, are two
classes based on an intelligible differentia. There is a laudable
purpose sought to be achieved. In-service candidates, on attaining
higher academic achievements, would be available to be posted C
in rural areas by the State Government. It is not that an in-service
candidate would leave the service merely on account of having
secured a postgraduate degree or diploma though secured by
virtue of being in the service of the State Government. If there
is any misapprehension, the same is allayed by the State
D
Government obtaining a bond from such candidates as a condition
precedent to their taking admission that after completing PG
degree/diploma course they would serve the State Government
for another five years. Additionally, a bank guarantee of rupees
three lakhs is required to be submitted along with the bond. There
is, thus, clearly a perceptible reasonable nexus between the E
classification and the object sought to be achieved.”
(emphasis supplied)
However, this Court has further held that there shall be only one
common entrance test. In paragraphs 25 to 28, it is held as under:
F
“25. The eligibility test, called the entrance test or the pre-PG
test, is conducted with dual purposes. Firstly, it is held with the
object of assessing the knowledge and intelligence quotient of a
candidate whether he would be able to prosecute postgraduate
studies if allowed an opportunity of doing so; secondly, it is for
the purpose of assessing the merit inter se of the candidates G
which is of vital significance at the counselling when it comes to
allotting the successful candidates to different disciplines wherein
the seats are limited and some disciplines are considered to be
more creamy and are more coveted than the others. The concept
of a minimum qualifying percentage cannot, therefore, be given H
676 SUPREME COURT REPORTS [2020] 8 S.C.R.
A a complete go-by. If at all there can be departure, that has to be
minimal and that too only by approval of experts in the field of
medical education, which for the present are available as a body
in the Medical Council of India.
26. The Medical Council of India, for the present, insists, through
B its Regulations, on a common entrance test being conducted
whereat the minimum qualifying marks would be 50%. The State
of Madhya Pradesh must comply with the requirements of the
Regulations framed by the Medical Council of India and hold a
common entrance test even if there are two separate channels
of entry and allow clearance only to such candidates who secure
C the minimum qualifying marks as prescribed by the MCI
Regulations. If the State has a case for making a departure from
such rule or for carving out an exception in favour of any
classification then it is for the State to represent to the Central
Government and/or the Medical Council of India and make out
D a case of justification consistently with the afore-quoted
observation of this Court in Dayanand Medical College and
Hospital case [(2001) 8 SCC 664] .
27. The in-service candidates may have been away from
academics and theories because of being in service. Still they
E need to be assessed as eligible for entrance in PG. For taking up
such examination, they must either keep updating themselves
regularly or concentrate on preparatory studies to entrance
examinations but without sacrificing or compromising with their
obligations to the people whom they are meant to serve on
account of being in State services.
F
28. Clearly, the State of Madhya Pradesh was not justified in
holding and conducting a separate entrance test for in-service
candidates. Nor could it have devised a formula by combining
clauses (i) and (iii) of Regulation 9(1) by resorting to clause (iv).
Recourse can be had to clause (iii) when there is only one
G university. When there is only one university in one State, the
standard of assessment can reasonably be assumed to have been
the same for assessing the academic merit of the students passing
from that university. When there are more universities than one
in a State, the standards of different universities and their
H assessment methods cannot obviously be uniform and may differ.
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 677
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
Then it would be futile to assess the comparative merit of A
individual performances by reference to clause (iii). The High
Court is, therefore, right in forming an opinion that in the State
of Madhya Pradesh, where five universities exist, the method of
evaluation contemplated by clause (iii) is not available either in
substitution of or in addition to clause (i). The candidates qualified
B
at the pre-PG or PG entrance test held in common for in-service
and open category candidates, would then be divided into two
separate merit lists to be prepared for the two categories and
merit inter se of the successful candidates shall be available to
be assessed separately in the two respective categories.”
(emphasis supplied) C
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% seats
in post-graduation in the universities of Madhya Pradesh D
for in-service candidates is not a reservation; it is a
separate and exclusive channel of entry or source of
admission, the validity whereof cannot be determined on
the constitutional principles applicable to communal
reservations. Such two channels of entry or two sources E
of admission is a valid provision.
2. There can be only one common entrance test for
determining eligibility for postgraduation for in-service
candidates and those not in service. The requirement
of minimum qualifying marks cannot be lowered or F
relaxed contrary to the Medical Council of India
Regulations framed in this behalf.
3. In the State of Madhya Pradesh there are five
universities i.e. there are universities more than one.
Regulation 9(2)(iii) cannot be made use of in the State
G
of Madhya Pradesh either singly or in combination with
clause (i) for determining the eligibility for entrance into
PG courses.
4. It is permissible to assign a reasonable weightage to
services rendered in rural/tribal areas by the in-service
H
678 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 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 prescribed by the Medical Council
of India.
B (emphasis supplied)
14.3 The question with respect to reservation and/or special
provisions for admission to PG courses with respect to in-service
candidates again fell for consideration before this Court in the case of
Sudhir N (supra). In the said decision, this Court also considered
C Regulation 9 of the MCI Regulations, 2000, which provided that general
category candidates must secure 50% marks in the common entrance
examination. In the aforesaid case of Sudhir N (supra), 40% of the
seats available in the State of Kerala for postgraduate medical admission
were reserved for in-service doctors serving in the Health Service
Department, Medical College Lecturers and doctors serving in the ESI
D department of the State. However, it was further provided that the
admission shall be made strictly on the basis of inter se seniority of the
in-service candidates who have appeared in the common entrance
examination for the postgraduate medical admission and have obtained
the minimum eligibility benchmark in the test in terms of the Regulations
E framed by the MCI. Writ petitions were filed before the High Court
on the ground that the State legislature could not enact a law that would
make selection for admission to the PG courses dependent solely on
the seniority of the in-service candidates without prescribing the
minimum conditions of eligibility for the candidates concerned. The High
Court in principle agreed that the admission to PG courses should be
F made only on the basis of inter se seniority provided the candidates
appear in the common entrance examination and qualify.
After considering various decisions of this Court, ultimately, this
Court upheld the decision of the High Court that inasmuch as the
provision of Section 5(4) of the 2008 Act which provides for selection
G of candidates to be from the one stipulated by the MCI Regulations,
was beyond the legislative competence of the State Legislature.
However, upheld the reservation for in-service candidates after
considering the decision of this Court in the case of Gopal D. Tirthani
(supra) holding that in-service candidates to be treated as a separate
H channel for admission to postgraduate courses within that category.
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 679
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
Also, admission can be granted only on the basis of merit. It is to be A
noted that in the said decision, this Court observed that Regulation 9 of
the Regulations 2000 is a complete code by itself. However, the said
observation can be said to be confined to the controversy before the
Court and the reference which was made shall be considered and dealt
with hereinbelow at an appropriate stage.
B
Thus, making special provision for in-service candidates and the
provisions for providing reservation for in-service candidates in
postgraduate medical courses have been upheld and approved by this
Court in the aforesaid decisions.
14.4 Even in the case of Dinesh Singh Chauhan (supra) also, C
while upholding Regulation 9(IV) which provides weightage to the
extent of 10% of the marks obtained by the candidates in the competition
test and to the extent of maximum 30% marks, this Court has in
paragraph 44 has observed as under:
“44. Dealing with this contention, we find that the setting in which D
the proviso to clause (IV) has been inserted is of some relevance.
The State Governments across the country are not in a position
to provide healthcare facilities in remote and difficult areas in
the 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 areas E
particularly State of Uttar Pradesh, which reads thus:
Qualifications Required Sanctioned In po sition Vacant Shortfall
MBBS Doctors at 3497 4509 2209 2300 1288
Primary Health
Centres (PHCs)
F
Specialists at 3092 2099 484 1615 2608
Community Health
Centres (CHCs)
In fact there is a proposal to make one-year service for MBBS
students to apply for admission to postgraduate courses, in remote
and difficult areas as compulsory. That is kept on hold, as was G
stated before the Rajya Sabha. The provision in the form of
granting weightage of marks, therefore, was to give incentive to
the in-service candidates and to attract more graduates to join
as medical officers in the State healthcare sector. The provision
was first inserted in 2012. To determine the academic merit of
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680 SUPREME COURT REPORTS [2020] 8 S.C.R.
A candidates, merely securing high marks in NEET is not enough.
The academic merit of the candidate must also reckon the
services rendered for the common or public good. Having served
in rural and difficult areas of the State for one year or above,
the incumbent having sacrificed his career by rendering services
for providing healthcare facilities in rural areas, deserve incentive
B
marks to be reckoned for determining merit. Notably, the State
Government is posited with the discretion to notify areas in the
given State to be remote, tribal or difficult areas. That declaration
is made on the basis of decision taken at the highest level; and
is applicable for all the beneficial schemes of the State for such
C areas and not limited to the matter of admissions to postgraduate
medical courses. Not even one instance has been brought to our
notice to show that some areas which are not remote or difficult
areas has been so notified. Suffice it to observe that the mere
hypothesis that the State Government may take an improper
decision whilst notifying the area as remote and difficult, cannot
D
be the basis to hold that Regulation 9 and in particular proviso to
clause (IV) is unreasonable. Considering the above, the
inescapable conclusion is that the procedure evolved in
Regulation 9 in general and the proviso to clause (IV) in
particular is just, proper and reasonable and also fulfils the test
E of Article 14 of the Constitution, being in larger public interest.”
(emphasis supplied)
15. The object and purpose of providing separate source of
admission for in-service candidates is noted by this Court in the cases
of K. Duraisamy (supra); Gopal D. Tirthani (supra); and Sudhir N
F (supra). Even the same is noted by this Court in the case of Dinesh
Singh Chauhan (supra) while upholding the reservation for in-service
doctors in postgraduate diploma courses. It has been consistently held
by this Court that there is a legitimate and rational basis in providing a
separate channel/source of entry for in-service candidates in order to
G encourage them to offer their services and expertise to the State. There
is a sufficient nexus with the larger goal of equalization of educational
opportunities and to sufficiently prefer the doctors serving in the various
hospitals run and maintained out of public funds, in the absence of which
there would be serious dearth of qualified Post-graduate doctors to
meet the requirements of the common public. It is stated that the
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TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 681
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
Government is facing public health crisis. The effective and competent A
medical treatment is not available in the rural and difficult areas. In-
service doctors who pursue higher studies would naturally serve in rural
and difficult areas if such incentive in the form of reservation is
provided.
15.1 The action of the State to provide for the in-service quota B
is in the discharge of its positive constitutional obligations to promote
and provide better health care facilities for its citizens by upgrading the
qualifications of the existing in-service doctors so that the citizens may
get more specialized health care facility. Such action is in discharge of
its constitutional obligations as provided in Article 47 of the Constitution
of India, which is the corresponding fundamental right of the citizens C
protected under Article 21 of the Constitution of India.
15.2 It is settled law that Article 21 of the Constitution of India
confers on the citizens of India a fundamental right to life and personal
liberty. Right to health is integral part of the Right to life and is a facet
of Article 21. In the case of Devika Biswas v. Union of India22, after D
considering its earlier decisions in the case of CESC Ltd. v. Subhash
Chandra Bose23 and in the case of Paschim Banga Khet Mazdoor
Samity v. State of West Bengal24, it is observed in paras 107, 108 and
109 as under:
“107. It is well established that the right to life under Article 21 E
of the Constitution includes the right to lead a dignified and
meaningful life and the right to health is an integral facet of this
right. In CESC Ltd. v. Subhash Chandra Bose (1992) 1 SCC 441
dealing with the right to health of workers, it was noted that the
right to health must be considered an aspect of social justice F
informed by not only Article 21 of the Constitution, but also the
Directive Principles of State Policy and international covenants
to which India is a party. Similarly, the bare minimum obligations
of the State to ensure the preservation of the right to life and
health were enunciated in Paschim Banga Khet Mazdoor Samity
v. State of W.B. (1996) 4 SCC 37. G
22
(2016) 10 SCC 726
23
(1992) 1 SCC 441
24
(1996) 4 SCC 37 H
682 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 108. In Bandhua Mukti Morcha v. Union of India (1984) 3 SCC
161, this Court underlined the obligation of the State to ensure
that the fundamental rights of weaker sections of society are not
exploited owing to their position in society.
109. That the right to health is an integral part of the right to life
B does not need any repetition.”
(emphasis supplied)
15.3 In a recent decision in the case of Association of Medical
Superspeciality Aspirants & Residents v. Union of India 25, it is
observed and held by this Court in paragraphs 25 and 26 as under:
C
“25. It is for the State to secure health to its citizens as its primary
duty. No doubt the Government is rendering this obligation by
opening government hospitals and health centres, but in order to
make it meaningful, it has to be within the reach of its people,
as far as possible, to reduce the queue of waiting lists, and it
D has to provide all facilities to employ best of talents and tone up
its administration to give effective contribution, which is also the
duty of the government (State of Punjab v. Ram Lubhaya Bagga,
(1998) 4 SCC 117).
26. Right to health is integral to the right to life. Government has
E a constitutional obligation to provide health facilities (state of
Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83). The
fundamental right to life which is the most precious human right
and which forms the ark of all other rights must therefore be
interpreted in a broad and expansive spirit so as to invest it with
F significance and vitality which may endure for years to come and
enhance the dignity of the individual and the worth of the human
person. The right to life enshrined in Article 21 cannot be
restricted to mere animal existence. It means something much
more than just physical survival. The right to life includes the right
to live with human dignity and all that goes along with it, namely,
G the bare necessaries of life such as adequate nutrition, clothing
and shelter, and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings.”
(emphasis supplied)
25
H (2019) 8 SCC 607
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 683
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
15.4 A healthy body is the very foundation for all human activities. A
In a welfare State, therefore, it is the obligation of the State to ensure
the creation and the sustaining of conditions congenial to good health.
Maintenance and improvement of public health have to rank high as
these are indispensable to the very physical existence of the community
and on the betterment of these depends the building of the society of
B
which the Constitution makers envisaged. It is observed by this Court
in the case of Vincent Panikurlangara v. Union of India 26 that
“attending to public health is of high priority, perhaps the one at the
top”. It is the primary duty of a welfare State to ensure that medical
facilities are adequate and available to provide treatment.
15.5 In the case of CESC Ltd. (supra), this Court has observed C
and held that right to health is a fundamental right. It went further and
observed that health is not merely absence of sickness. The term health
implies more than an absence of sickness. Medical care and health
facilities not only protect against sickness but also ensure stable
manpower for economic development. Facilities of health and medical D
care generate devotion and dedication to give the workers’ best,
physically as well as mentally, in productivity.
15.6 In the case of Municipal Council, Ratlam v.
Vardhichand27, this Court through Justice Krishna Iyer observed: “The
State will realize that Article 47 makes it a paramount principle of E
governance that steps are taken for the improvement of public health
as amongst its primary duties.
15.7 Even otherwise, the power of the State under Entry 6, List
II of Schedule VII to legislate in the subject matter of public health
and hospital is exclusive. F
15.8 Article 47 of the Constitution reiterates the constitutional
obligation imposed on the State to improve public health. The Directive
Principle provides as follows:
“47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health – The State shall G
regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among
its primary duties and, in particular, the State shall endeavour to
26
AIR 1987 SC 990
27
1980 Cri LJ 1075 = 1981 SCR (1) 97 = AIR 1980 SC 1622 H
684 SUPREME COURT REPORTS [2020] 8 S.C.R.
A bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious
to health.”
15.9 As observed hereinabove, Article 21 of the Constitution of
India imposes an obligation on the State to safeguard the life of every
B person. Preservation of human life is thus of paramount importance.
Thus, when the State provides a separate source of admission for in-
service doctors as a distinct class and within the State quota and the
object is laudable, the State is within its power to provide such separate
source of admission in exercise of the powers under Entry 25 List III,
read with Entry 6, List II. It cannot be said that there is no nexus with
C the laudable object of meeting the requirement of qualified postgraduate
doctors for the public health services, more particularly, in the rural,
tribal and difficult areas. As such, there is no conflict between the power
of the Union and the State. As observed hereinabove, the occupied filed
of Union legislation in exercise of power under Entry 66, List I is related
D to minimum standards of medical education and the State is providing
the in-service quota without impinging the prescribed minimum standards.
It is a settled proposition of law that in case of two entries might be
overlapping, in that case, the interpretation must be in furtherance of
achieving the ultimate object, in the present case to provide better health
care in the rural, tribal and difficult areas. Any interpretation which
E would negate and/or become nugatory the other entry, is to be avoided.
There must be a harmonious reading between the two entries. In the
present case, as such and as observed hereinabove, there shall not be
any conflict between the power of the Union and the State, while
exercising the powers under Entry 66 List I by the Union and under
F Entry 25 List III by the States. Therefore, as such, the State is within
its power and is empowered to make reservation in the seats of the
postgraduate medical courses, more particularly, for in-service doctors.
15.10 In the federal structure, the State, as well as the Parliament,
have a constitutional directive for the upliftment of Scheduled Castes,
G Scheduled Tribes, and socially and backward classes. Therefore, the
State Government have the right to provide reservation and in the field
of employment and education, looking to the specific/special need of
public requirement in the particular area. There is no constitutional bar
to take further affirmative action as taken by the State Government in
the cases to achieve the goal. Therefore, by allotting a specific
H percentage within its State quota and to provide preferential treatment
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 685
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
to a particular class, cannot be said to be beyond the legislative A
competence of the State. On the contrary, as observed hereinabove,
the State is within its power and authority to provide such a preferential
treatment to provide a better public health in the rural, tribal and hilly
areas.
16. It is to be noticed that earlier also the concerned States did B
provide reservation for in-service government medical officers/doctors
and the concerned States, as such, achieved the goal of meeting the
public health services in the rural, tribal and difficult areas. However,
because of the misinterpretation of the MCI Regulations, 2000, the
problems have arisen.
C
17. Even otherwise, Regulation 9 of the MCI Regulations, 2000
to the extent not providing for any reservation for in-service candidates
working in the rural, tribal and difficult areas can be declared ultra vires
on the ground of being arbitrary, discriminatory and violative of Articles
14 and 21 of the Constitution of India. It is required to be noted that
D
Regulation 9, more particularly Regulation 9(VII) makes provision for
reservation for in-service candidates for admission to postgraduate
diploma courses only. However, there is no reason coming out of either
from the Regulations or in any form of material produced by the MCI
showing as to on what basis MCI takes a stand that similar in-service
reservation is not permissible for admission to postgraduate degree E
courses. Therefore, if the very concept of in-service reservation is
permissible and incorporated in the MCI Regulations, 2000, opposition
to similar reservation for postgraduate degree courses is unreasonable
and irrational.
18. Now so far as the observations made by this Court in the F
cases of Sudhir N (supra) and Dinesh Singh Chauhan (supra) that
the MCI Regulations, 2000 is a complete code is concerned, it is clear
that the observations made by this Court in the case of Sudhir N
(supra) that Regulation 9 of the MCI Regulations, 2000 is a complete
code is required to be considered with reference to the context and
G
controversy before the Court.
18.1 In the case of Sudhir N (supra), the State law which was
under consideration by the Court provided that the seniority list of
selected candidates to be prepared directly based on seniority of in-
service doctors, irrespective of marks obtained by such in-service
H
686 SUPREME COURT REPORTS [2020] 8 S.C.R.
A candidates in common PG entrance examination. In that context, this
Court held that Regulation 9 of MCI Regulations, 2000 is the only
effective and permissible basis for granting admission to postgraduate
medical courses and therefore it was observed that Regulation 9 of MCI
Regulations, 2000 is a complete code. Therefore, the observations in
the case of Sudhir N (supra) that Regulation 9 is a complete code in
B
itself may not be construed with respect to providing reservation and/
or making special provision like providing separate source of entry for
in-service candidates within the State quota and subject to fulfilling of
other criteria fixed and provided by the MCI. Therefore, the observations
made by this Court in the case of Dinesh Singh Chauhan (supra)
C and as held by this Court in the case of Sudhir N (supra) that
Regulation 9 is a complete code in itself cannot be accepted and is held
to be not a good law.
19. When we consider the subsequent amendment in the year
2018, as made by notification dated 12.07.2018, it is provided that a
D medical college/medical institution shall be entitled to seek equal number
of Post Graduate Degree (MD/MS) seats by surrendering recognised
diploma seats in corresponding course. In view of the above, it has so
happened that by and large in every State the diploma seats are
converted in PG Degree (MD/MS) seats by surrendering recognised
diploma seats. The resultant effect is that in-service candidates/doctors
E
shall not be entitled to any seat even in PG Diploma courses which
has been provided under Regulation 9(VII) of MCI Regulations 2000,
as amended from time to time. Therefore, ultimately, it will affect the
public health and the common people in the rural, tribal and hilly areas
where there is a dearth of good and highly qualified doctors. Therefore,
F if the rights of the States to provide such reservation for in-service
doctors in postgraduate degree/diploma courses is not recognised, in
that case, the ultimate sufferer would be the public health and the
common people, particularly the people residing in rural, tribal and hilly
areas.
G Conclusions:
20. The sum and substance of the above discussion and conjoint
reading of the decisions referred to and discussed hereinabove, our
conclusions are as under:
1) that Entry 66 List I is a specific entry having a very
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 687
UNION OF INDIA & OTHERS [M. R. SHAH, J.]
limited scope; A
2) it deals with “coordination and determination of
standards” in higher education;
3) the words “coordination and determination of
standards would mean laying down the said
B
standards;
4) the Medical Council of India which has been
constituted under the provisions of the Indian
Medical Council Act, 1956 is the creature of the
statute in exercise of powers under Entry 66 List I C
and has no power to make any provision for
reservation, more particularly, for in-service
candidates by the concerned States, in exercise of
powers under Entry 25 List III;
5) that Regulation 9 of MCI Regulations, 2000 does D
not deal with and/or make provisions for reservation
and/or affect the legislative competence and
authority of the concerned States to make reservation
and/or make special provision like the provision
providing for a separate source of entry for in-
service candidates seeking admission to E
postgraduate degree courses and therefore the
concerned States to be within their authority and/or
legislative competence to provide for a separate
source of entry for in-service candidates seeking
admission to postgraduate degree courses in F
exercise of powers under Entry 25 of List III;
6) if it is held that Regulation 9, more particularly,
Regulation 9(IV) deals with reservation for in-service
candidates, in that case, it will be ultra vires of the
Indian Medical Council Act, 1956 and it will be G
beyond the legislative competence under Entry 66
List I.;
7) Regulation 9 of MCI Regulations, 2000 to the extent
tinkering with reservation provided by the State for
in-service candidates is ultra vires on the ground that
H
688 SUPREME COURT REPORTS [2020] 8 S.C.R.
A it is arbitrary, discriminatory and violative of Articles
14 and 21 of the Constitution of India;
8) that the State has the legislative competence and/or
authority to provide for a separate source of entry
for in-service candidates seeking admission to
B postgraduate degree/diploma courses, in exercise of
powers under Entry 25, List III. However, it is
observed that policy must provide that subsequent to
obtaining the postgraduate degree by the concerned
in-service doctors obtaining entry in degree courses
C through such separate channel serve the State in the
rural, tribal and hilly areas at least for five years
after obtaining the degree/diploma and for that they
will execute bonds for such sum the respective States
may consider fit and proper; and
D 9) it is specifically observed and clarified that the
present decision shall operate prospectively and any
admissions given earlier taking a contrary view shall
not be affected by this judgment.
E 27. In view of our above discussions and conclusions, the Civil
Appeals are allowed in the aforesaid terms and the impugned judgment
of the High Court at Calcutta dated 01.10.2019 passed in MAT No.
1222 of 2019, connected with, MAT No. 1223 of 2019, MAT 1224 of
2019, MAT 1239/2019, MAT 1245/2019, MAT 1267 of 2019 and MAT
1333 of 2019 is hereby set aside. Writ Petition Nos. 196/2018 connected
F
with Writ Petition No.252/2018, Writ Petition No. 295/2018 and Writ
Petition No. 293/2018 stand allowed in the aforesaid terms. All
connected interlocutory applications stand disposed of.
Before parting we acknowledge and appreciate the cooperation
G by the learned Senior Counsels and other Advocates appearing on behalf
of their respective parties and assisting the Court in concluding hearing
in such an important matter, through virtual court in a time when the
entire world is facing pandemic and difficult time. Such a gesture and
cooperation is highly appreciable.
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 689
UNION OF INDIA & OTHERS
ANIRUDDHA BOSE, J. A
1. Permission to file petition for special leave to appeal is granted
in the matter registered as D-42890/19. Leave granted in all the petitions
for special leave to appeal.
2. There are altogether seventeen main proceedings which are
before us, all involving a common question of law. That question is as B
to whether under the scheme of our Constitution and the provisions of
the Postgraduate Medical Education Regulations, 2000
(Regulations, 2000) made by the Medical Council of India (Council)
under Section 33 of the Indian Medical Council Act, 1956, a State has
any power to reserve seats for admission in postgraduate medical degree C
courses for the medical professionals working in governmental
organisations within that State. Such medical professionals we shall refer
to henceforth in this judgment as “in-service doctors”. We find that this
is the term commonly used to describe them in medico-administrative
parlance in different parts of the country. Legislations pertaining to
medical education in this country is primarily guided by two entries of D
the Seventh Schedule to the Constitution of India, being Entry 66 of
List I (Union List) and Entry 25 of List III (Concurrent List). These
entries read:-
“Entry 66 of List I- Co-ordination and determination of
standards in institutions for higher education or research and E
scientific and technical institutions.”
“Entry 25 of List III- Education, including technical
education, medical education and universities, subject to the
provisions of entries 63, 64, 65 and 66 of List I; vocational
and technical training of labour.” F
The conflict between the power of the Union and the State in
this set of cases does not arise out of any primary legislation, but
emerges out of subordinate or delegated legislations. The respective
States have issued Executive Orders to introduce such reservation. The
States of Kerala and West Bengal, have, however traced their power G
of reservation to certain State legislations and Rules made in that behalf.
But these factors are not of much significance for adjudication of these
matters. We shall deal with the subject-controversy applying the
established principles for resolving disputes arising out of interpretation
of statutory instruments in relation to legislative competence of the
H
Union and the States.
690 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 3. Reference has also been made in course of hearing of these
matters before us to two other entries in the State list for tracing the
source of State’s power to effect such reservation. Entry 6 in the State
List covers “Public Health and Sanitation; hospitals and dispensaries”.
Entry 32 of the same List specifies “Incorporation, regulation and
winding up of corporation, other than those specified in List I, and
B
universities, unincorporated trading, literary, scientific, religious and other
societies and associations; co-operative societies.” Learned counsel
appearing for some of the parties defending the reservation have sought
to anchor the legislative power of the States to make reservation of
this nature on these entries as well. But we do not accept this
C submission. We are of the view that admission to postgraduate degree
courses in medical education cannot be linked to the subject-heads
specified against the said two entries. The consequence of reservation
of this nature may have impact on functioning of the institutes vis-à-
vis the items referred to in the said two entries, but the said entries
cannot be linked to any statutory instrument originating from a State
D
providing for reservation of in-service doctors in postgraduate medical
degree courses. We also would like to make it clear here that the
expression “reservation” we are using in this judgment is not
“reservation” in the manner the same is referred to in the Constitution,
providing for compensatory discrimination. But so far as the subject-
E controversy is concerned, this expression really implies a separate source
of entry to the postgraduate medical degree courses. We shall explain
this distinction in greater detail later in this judgment.
4. Under the 1956 Act, different Rules and Regulations have
been made to carry out the purposes of the said statute. Section 10D
F thereof mandates a common entrance examination both at the
undergraduate and postgraduate level. What concerns us in the present
set of proceedings is Clause 9 of the 2000 Regulations which contains
procedures for selection of candidates for postgraduate medical courses.
This clause along with its sub-clauses has undergone certain
amendments from time to time and has been brought in its present shape
G by way of a notification published on 5th April, 2018. The said clause,
as it stands now, stipulates:-
“9. Procedure for selection of candidate for postgraduate courses
shall be as follows:-
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 691
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
(1) There shall be a uniform entrance examination to all A
medical educational institutions at the Postgraduate level
namely ‘National Eligibility-cum-Entrance Test’ for
admission to postgraduate courses in each academic
year and shall be conducted under the overall
supervision of the Ministry of Health & Family Welfare,
B
Government of India.
(2) The “designated authority” to conduct the `National
Eligibility-cum-Entrance Test’ shall be the National
Board of Examination or any other body/organization so
designated by the Ministry of Health and Family
Welfare, Government of India. C
(3) In order to be eligible for admission to Postgraduate
Course for an academic year, it shall be necessary for
a candidate to obtain minimum of marks at 50th
percentile in the ‘National Eligibility-Cum-Entrance Test
for Postgraduate courses held for the said academic D
year. However, in respect of candidates belonging to
Scheduled Castes, Scheduled Tribes, and Other
Backward Classes, the minimum marks shall be at 40th
percentile. In respect of candidates with benchmark
disabilities specified under the Rights of Persons with E
Disabilities Act, 2016, the minimum marks shall be at
45th percentile for General Category and 40th percentile
for SC/ST/OBC. The percentile shall be determined on
the basis of highest marks secured in the All India
Common merit list in National Eligibility-cum-Entrance
Test for Postgraduate courses. F
Provided when sufficient number of candidates in the respective
categories fail to secure minimum marks as prescribed in National
Eligibility-cum-Entrance Test held for any academic year for
admission to Postgraduate Courses, the Central Government in
consultation with Medical Council of India may at its discretion G
lower the minimum marks required for admission to Post
Graduate Course for candidates belonging to respective categories
and marks so lowered by the Central Government shall be
applicable for the academic year only.
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692 SUPREME COURT REPORTS [2020] 8 S.C.R.
A (4) The reservation of seats in Medical Colleges/institutions
for respective categories shall be as per applicable laws
prevailing in States/Union Territories. An all India merit
list as well as State-wise merit list of the eligible
candidates shall be prepared on the basis of the marks
obtained in National Eligibility-cum-Entrance Test and
B
candidates shall be admitted to Postgraduate Courses
from the said merit lists only.
Provided that in determining the merit of candidates who are in
service of government/public authority, weightage in the marks
may be given by the Government/Competent Authority as an
C incentive upto 10% of the marks obtained for each year of
service in remote and/or difficult areas or Rural areas upto
maximum of 30% of the marks obtained in National Eligibility-
cum Entrance Test. The remote and/or difficult areas or Rural
areas shall be as notified by State Government/Competent
D authority from time to time.”
(5) 5% seats of annual sanctioned intake capacity shall be
filled up by persons with benchmark disabilities in
accordance with the provisions of the Rights of Persons
with Disabilities Act, 2016, based on the merit list of
E National Eligibility-Cum-Entrance Test for admission to
Postgraduate Medical Courses.
In order to be eligible for admission to Postgraduate Course for
an academic year, it shall be necessary for a candidate to obtain
minimum of marks at 50th percentile in the ‘National Eligibility-
F Cum-Entrance Test’ for Postgraduate courses held for the said
academic year. However, in respect of candidates belonging to
Scheduled Castes, Scheduled Tribes, and Other Backward
Classes, the minimum marks shall be at 40th percentile. In respect
of candidates with benchmark disabilities specified under the
Rights of Persons with Disabilities Act, 2016, the minimum marks
G shall be at 45th percentile for General Category and 40th
percentile for SC/ST/OBC.
(6) No candidate who has failed to obtain the minimum
eligibility marks as prescribed in Sub-Clause (3) above
shall be admitted to any Postgraduate courses in the said
H academic year.
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 693
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
(7) In non-Governmental medical colleges/institutions, 50% A
(Fifty Percent) of the total seats shall be filled by State
Government or the Authority appointed by them, and the
remaining 50% (Fifty Percent) of the seats shall be filled
by the concerned medical colleges/institutions on the
basis of the merit list prepared as per the marks obtained
B
in National Eligibility-cum-Entrance Test.”
(8) 50% of the seats in Postgraduate Diploma Courses shall
be reserved for Medical Officers in the Government
service, who have served for at least three years in
remote and /or difficult areas and / or Rural areas. After
acquiring the Postgraduate Diploma, the Medical C
Officers shall serve for two more years in remote and
/or difficult areas and / or Rural areas as defined by
State Government/Competent authority from time to
time.
(9) The Universities and other authorities concerned shall D
organize admission process in such a way that teaching
in broad speciality postgraduate courses starts by 1st
May and for super speciality courses by 1st August each
year. For this purpose, they shall follow the time schedule
indicated in Appendix-III. E
(10) There shall be no admission of students in respect of
any academic session beyond 31st May for postgraduate
courses and 31st August for super speciality courses
under any circumstances. The Universities shall not
register any student admitted beyond the said date. F
(11) No authority / institution shall admit any candidate to
any postgraduate medicine course in contravention of
the criteria / procedure as laid down by these
Regulations and / or in violation of the judgements passed
by the Hon’ble Supreme Court in respect of admissions. G
Any candidate admitted in contravention / violation of
aforesaid shall be discharged by the Council forthwith.
The authority / institution which grants admission to any
student in contravention / violation of the Regulations
and / or the judgements passed by the Hon’ble Supreme
Court, shall also be liable to face such action as may H
694 SUPREME COURT REPORTS [2020] 8 S.C.R.
A be prescribed by the Council, including surrender of
seats equivalent to the extent of such admission made
from its sanctioned intake capacity for the succeeding
academic year / years.]”
5. The disputes in these matters largely centre around sub-clause
B (4) and (8) of the said clause. The content thereof subsisted in the said
Regulations in the form of sub-clauses (IV) and (VII) of Clause 9 of
the 2000 Regulations in substantially same form, when the said clause
was earlier amended, by a Notification dated 15th February, 2012. Sub-
clauses (IV) and (VII) of Clause 9 of the 2000 Regulations stood in
terms of the aforesaid notification as:
C
“IV. The reservation of seats in medical colleges/institutions for
respective categories shall be as per applicable laws prevailing
in States/Union Territories. An all India merit list as well as State-
wise merit list of the eligible candidates shall be prepared on the
basis of the marks obtained in National Eligibility-cum-Entrance
D Test and candidates shall be admitted to Post Graduate courses
from the said merit lists only.
Provided that in determining the merit of candidates who are in
service of government/public authority, weightage in the marks
may be given by the Government/Competent Authority as an
E incentive at the rate of 10% of the marks obtained for each year
of service in remote and/or difficult areas upto the maximum of
30% of the marks obtained in National Eligibility-cum-Entrance
Test. The remote and difficult areas shall be as defined by State
Government/Competent authority from time to time.
F VII. 50% of the seats in Post Graduate Diploma Courses shall
be reserved for Medical Officers in the Government Service, who
have served for at least three years in remote and/or difficult
areas. After acquiring the PG Diploma, the Medical Officers shall
serve for two more years in remote and/or difficult areas as
G defined by State Government/Competent authority from time to
time.”
6. There has been another development impacting the prospects
of in-service doctors in pursuing higher educational qualifications. The
Medical Council of India (MCI) has started permitting conversion of
seats in post-graduate diploma course to “degree-seats” from July, 2018.
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 695
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
So far as the State of Tamil Nadu is concerned, (who are the respondent A
no.3 in Writ Petition(civil) No. 196 of 2018) of the 545 post-graduate
diploma seats, 542 seats have been converted into seats for post-
graduate degree courses. This has been brought to our notice by the
learned Senior Counsel for the State of Tamil Nadu, Mr. C.S.
Vaidyanathan and Mr. V. Giri. Such conversion, we are apprised, is being
B
permitted by virtue of an amendment brought by the MCI to “The
Opening of a New or Higher Course of Study or Training
(including Post-graduate Course of Study or Training) and
Increase of Admission Capacity in any Course of Study or
Training (including Post-graduate Course of Study or Training)
Regulations 2000.” This amendment permits medical colleges or C
institutions to surrender their postgraduate diploma seats to be replaced
by postgraduate degree seats. The said amendment was brought about
by a notification No.MCI-18(1)/2018-Med./122294 dated 12th July 2018,
in exercise of power under Section 33 of the 1956 Act.
7. These proceedings originate from five states, being Haryana, D
Kerala, Maharashtra, West Bengal and Tamil Nadu. These States have
subsisting provisions for reservation of in-service doctors on the basis
of different forms of statutory instruments. In Writ Petition (Civil)
No.196 of 2018, in which the petitioners are Tamil Nadu Medical
Officers’ Association and two in-service doctors of that State who had
appeared in the National Eligibility-cum-Entrance Test (NEET) in the E
year 2018 for admission to postgraduate degree course for the academic
year 2018-19. This writ petition was filed in the month of March 2018,
before the 2018 amendment of 2000 Regulations came into operation.
But sub-clause IV thereof, as it prevailed then remains unaltered.
Clause VII of the then subsisting Regulations have been incorporated F
in Clause 9 of the 2000 Regulations as sub-clause (8) in substance.
This Court has permitted intervention of G.M.S. Class II Medical
Officers’ Association in this Writ Petition. The latter entity represents
in-service doctors of the State of Gujarat. The said Association had
asked for transfer of a petition pending in the High Court of Gujarat,
registered as SCA No.5773/2019 (GMS Class II Medical Officers G
Association vs. State of Gujarat & Ors.) to this Court in Transfer
Petition (Civil)No. 633 of 2020. This Court, by an order passed on 22 nd
June, 2020, considering urgency of the matter, did not consider
appropriate to transfer the matter. The petitioner for transfer, however,
was permitted to intervene in the matter. Ms. Meenakshi Arora, learned H
696 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Senior Advocate argued for them before us. Their grievances, as
outlined in their application, is over, inter-alia, change in the policy in
the State of Gujarat by effecting reservation for in-service candidates
sponsored by the State Government of 50 per cent seats in the diploma
courses only, excluding the degree courses from such reservation or
separate source of entry. This has been done under Rule 6 of the
B
Gujarat Professional Postgraduate Medical Educational Courses
(Regulation of Admission) Rules, 2018. These Rules have been
framed under the Gujarat Professional Medical Educational Colleges
or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007.
Subsequently, all the medical colleges in the State of Gujarat have
C applied for conversion of their diploma seats into degree courses. The
applicants contend that such conversion would nullify the effect of
Clause 9(8) of the 2000 Regulations. The Association’s concern is that
such conversion would further shrink future academic pursuit of the
in-service doctors from that State. It appears that the State of Gujarat
had provision for 25 per cent reservation for in-service candidates in
D
postgraduate degree courses before the MCI brought in the amended
Regulations. The Association seeks invalidation of said Rule 6 as also
direction upon the State to implement policy of granting incentive marks
in terms of proviso to Clause 9(4) of the 2000 Regulations.
8. Reservation for in-service candidates in postgraduate medical
E courses has been prevalent in various States in different forms for quite
some time now, though the extent of such reservation has varied, from
State to State, year to year. In the State of Maharashtra, reservation
of this category of doctors in post-graduate degree seats had been
subsisting since 6 th January, 1990 on the basis of Government
F Resolutions, and the reservation percentage stood at 25 per cent on
the basis of a Resolution dated 22nd February, 1996. This has been
pleaded in Writ Petition(C)No. 295 of 2018. This Writ Petition, as also
Writ Petition (Civil) No. 293 of 2018 and Writ Petition (Civil) No. 252
of 2018 deal with Clause 9 of the 2000 Regulations prior to its
amendment effected on 5th April 2018. The petitioner in that proceeding
G is a State appointed medical officer seeking the benefit of in-service
candidates’ reservation. The Writ Petition registered as W.P.(C) No.293/
2018 relates to similar question of reservation in the State of Haryana.
The quota for in-service doctors in the State of Haryana was increased
from 27 per cent to 40 per cent with effect from the 2001 session.
H The petitioners being in-service doctors aspiring to undertake post-
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 697
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
graduate degree courses seek declaration to the effect that the State A
retains power to reserve postgraduate degree seats for the in-service
doctors even after coming into operation of Clause 9(IV) of the 2000
Regulations in the form we have already referred to. Their alternative
prayer is for invalidation of sub-clauses (IV) and (VII) of Clause 9 of
the 2000 Regulations.
B
9. The State of Kerala had enacted the Kerala Medical
Officers Admission to Postgraduate Courses under Service
Quota Act, 2008 for providing reservation in postgraduate courses for
medical officers in service of the State Government on prescribed terms
and conditions. This Statute empowers the State Government to reserve
upto 40 per cent of post-graduate seats for in-service candidates. The C
State had policy of reservation of 40 per cent of the seats available in
postgraduate medical admissions for in-service doctors on the basis of
seniority.
10. The State of West Bengal framed the West Bengal Medical
Education Service, the West Bengal Health Service and the D
West Bengal Public Health-cum-Administrative Service
(Placement on Trainee Reserve) Rules, 2015 under Section 21 of
the West Bengal State Health Services Act, 1990. Note to Rule 3 thereof
confers power on the State Government to specify the number of seats
in different postgraduate courses which may be available to the in- E
service doctors. There have been subsequent Executive Orders issued
in this regard. Reservation for the in-service doctors by the State
Government was successfully challenged before the High Court by
twentytwo medical graduates appearing from the open category who
had cleared the entrance examination through the Postgraduate NEET,
2019 conducted by the National Board of Examination at all India level. F
Reservation for in-service doctors in West Bengal was being continued
in terms of a memorandum bearing no. HF/O/MERT/433//W-43/13
dated 18th April, 2013. The seats involved were for MD-MS courses,
which are postgraduate medical degree courses. In terms of the 2000
Regulations, half of the total number of seats had been reserved for G
All India quota and the other half had been reserved for the State quota.
After the second round of counselling, the vacancies remaining from
the national quota were reverted back to the State. The complaint of
the writ petitioners before the High Court was that the State was
seeking to fill up these reverted seats in 60:40 ratio for the open category
H
698 SUPREME COURT REPORTS [2020] 8 S.C.R.
A and in-service candidates. A learned Single Judge of the High Court
allowed the writ petition on the ground that such reservation was
contrary to the provisions of the 2000 Regulations. The decision of the
First Court was affirmed by a Division Bench of the High Court.
Admission of the in-service doctors to postgraduate degree courses
pursuant to reservation of 40 per cent of the State quota seats was
B
directed to be cancelled and a fresh merit list was also directed to be
prepared. In SLP(C) 26665 of 2019 and 26507-26510, 25487-25490 of
2019 and Diary No. 42980 of 2019, the in-service doctors have assailed
the judgment of the Division Bench of the Calcutta High Court. The
State of West Bengal is the appellant-petitioner in SLP(C) Nos. 26448
C of 2019 whereas the Vice Chancellor, West Bengal University of Health
Sciences is the appellant-petitioner in SLP(C)No. 26449 of 2019 and
SLP(C)No. 26648 of 2019.
11. The main proceeding giving rise to this reference is Writ
Petition (Civil) No.196 of 2018. Mr. Arvind Datar, learned Senior
D Advocate has argued in this writ petition for the petitioners before us.
In this writ petition, following reliefs have been prayed for:-
“(a) Declare by issuance of a writ of mandamus or any other
suitable writ/order/direction that Regulation 9 of the Post
Graduate Medical Education Regulations, 2000 (more
E particularly, Regulation 9 (IV) and 9(VII), does not take
away the power of the States under Entry 25, List III
to provide for a separate source of entry for in-service
candidates seeking admission to Degree Courses;
(b) Alternatively, if Regulation 9 of the Post Graduate
F Medical Education Regulations, 2000 is understood to
not allow for States to provide for a separate source of
entry for in-service candidates seeking admission to
Degree Courses, declare, by issuance of a writ of
mandamus or any other suitable writ/order/direction,
Regulation 9 (more particularly, Regulation 9 (IV) and
G 9 (VII) as being arbitrary, discriminatory and violative
of Article 14 and Article 19(1)(g)of the Constitution and
also ultra vires the provisions of the Indian Medical
Council Act 1956; and
(c) Pass any such further orders/directions which this
H Hon’ble Court may deem fit and proper in the interest
of justice.”
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 699
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
12. Before the institution of Writ Petition (Civil) no.196 of 2018, A
a three-Judge Bench of this Court in the case of State of Uttar
Pradesh & Ors. vs. Dinesh Singh Chauhan [(2016) 9 SCC 749]
had examined the question as to whether having regard to the provisions
of Clause 9 of the 2000 Regulations, State’s power to provide for
reservation of in-service candidates in postgraduate medical degree
B
courses had been retained or not. This issue was decided in the negative.
Opinion of the Bench of three Hon’ble Judges of this Court in this case
was that the effect of Clause 9 of the 2000 Regulations was in effect
forfeiture of the power of the States in making provisions for reservation
in postgraduate medical degree courses for in-service doctors. This case
dealt with Clause 9 of the 2000 Regulations as it stood prior to 5th April C
2018. In Sudhir N.& Ors. vs. State of Kerala & Ors. [(2015) 6
SCC 685), a Division Bench of this Court has held that Clause 9 of
the 2000 Regulations is a complete code by itself inasmuch as it
prescribes the basis for determining the eligibility of candidates including
the method to be adopted for determining inter-se merit which remains
D
the only basis for such admission. In the case of Dinesh Singh
Chauhan (supra), this view was confirmed by the three-judge Bench
of this Court. We must, however, point out here that in the case of
Sudhir N. (supra), the question which was addressed was as to
whether in-service candidates could be given admission on the basis
of inter-se seniority alone. E
13. As it would be evident from the aforesaid proviso to sub-
clause (4) of Clause 9 (as also sub-clause IV of the same clause as it
prevailed after the amendment made on 15th February 2012), the State
Governments have been conferred with the power to give weightage
in the marks as an incentive of upto 10 per cent of the marks obtained F
for each year of service in remote and the difficult areas. Rural areas
was added to this List on the basis of amendment made on 5th April
2018. A capping of 30 per cent of the marks obtained in the NEET on
such weightage has been specified in the said proviso. Sub-clause(8)
of the present Regulations, which is broadly similar to sub-clause VII
of the same Regulations in its earlier form, thereof permits the State G
Governments to reserve 50 per cent of the seats in postgraduate
diploma courses for in-service doctors who have served for at least
three years in remote and/or difficult areas or rural areas. This
reservation is subject to a further condition that after acquiring a
postgraduate diploma the medical officers should serve two more years H
700 SUPREME COURT REPORTS [2020] 8 S.C.R.
A in remote and/or in difficult areas or rural areas as defined by the State
Government or the competent authorities.
14. In the case of Dinesh Singh Chauhan (supra), before the
High Court at Allahabad, legality of two government orders dated 28 th
February, 2014 and 17th April, 2014 was questioned. These orders
B imposed condition of working for three years in rural or difficult areas
for the in-service doctors aspiring for postgraduate study. The State of
Uttar Pradesh at the material time had 30 per cent quota for in-service
candidates in the postgraduate degree courses as well. The High Court
held that the admission process specified in Clause 9 of 2000 Regulations
should be strictly adhered to. The finding of the High Court, as
C summarised in the judgment of Dinesh Singh Chauhan (supra), was:-
“6. The High Court whilst adverting to the decisions of this Court
including the recent judgment in Sudhir N. v. State of Kerala
[(2015) 6 SCC 685 : (2015) 2 SCC (L&S) 323] held that
Regulation 9 is a complete code and the admission process must
D strictly adhere to the norms stipulated therein. It, thus, proceeded
to quash the Government Notification-cum-Government Order
dated 28-2-2014 and directed that admissions to postgraduate
“degree” courses be proceeded strictly on merits amongst the
candidates who have obtained requisite minimum marks in the
E common entrance examination in question. It also noted that as
per Regulation 9, at best, the in-service candidates who have
worked in remote and difficult areas in the State, as notified by
the State Government/competent authority from time to time,
alone would be eligible for weightage of marks as incentive @
10% of the marks obtained for each year of service in such areas
F up to the maximum of 30% marks obtained in National Eligibility-
cum-Entrance Test.”
15. In the aforesaid decision, the three-judge Bench of this Court
proceeded on the basis that the procedure for admission to postgraduate
courses falls within Entry 66 of List I to the Seventh Schedule of the
G Constitution of India. It was, inter-alia, held in this judgment:-
“24. By now, it is well established that Regulation 9 is a
self-contained code regarding the procedure to be followed for
admissions to medical courses. It is also well established that the
State has no authority to enact any law much less by executive
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 701
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
instructions that may undermine the procedure for admission to A
postgraduate medical courses enunciated by the Central
legislation and regulations framed thereunder, being a subject
falling within Schedule VII List I Entry 66 of the Constitution
(see Preeti Srivastava v. State of M.P.). The procedure for
selection of candidates for the postgraduate degree courses is
B
one such area on which the Central legislation and regulations
must prevail.
25. Thus, we must first ascertain whether Regulation 9, as
applicable to the case on hand, envisages reservation of seats
for in service medical officers generally for admission to
postgraduate “degree” courses. Regulation 9 is a composite C
provision prescribing procedure for selection of candidates—both
for postgraduate “degree” as well as postgraduate “diploma”
courses:
25.1. Clause (I) of Regulation 9 mandates that there shall be a
single National Eligibility-cum-Entrance Test (hereinafter referred D
to as “NEET”) to be conducted by the designated authority.
25.2. Clause (II) provides for three per cent seats of the annual
sanctioned intake capacity to be earmarked for candidates with
locomotory disability of lower limbs. We are not concerned with
this provision. E
25.3. Clause (III) provides for eligibility for admission to any
postgraduate course in a particular academic year.
25.4. Clause (IV) is the relevant provision. It provides for
reservation of seats in medical colleges/institutions for reserved
F
categories as per applicable laws prevailing in States/Union
Territories. The reservation referred to in the opening part of this
clause is, obviously, with reference to reservation as per the
constitutional scheme (for the Scheduled Caste, the Scheduled
Tribe or the Other Backward Class candidates); and not for the
in-service candidates or medical officers in service. It further G
stipulates that all-India merit list as well as Statewise merit list
of the eligible candidates shall be prepared on the basis of the
marks obtained in NEET and the admission to postgraduate
courses in the State concerned shall be as per the merit list only.
Thus, it is a provision mandating admission of candidates strictly
H
702 SUPREME COURT REPORTS [2020] 8 S.C.R.
A as per the merit list of eligible candidates for the respective
medical courses in the State. This provision, however, contains
a proviso. It predicates that in determining the merit of candidates
who are in service of the Government or a public authority,
weightage in the marks may be given by the Government/
competent authority as an incentive @ 10% of the marks
B
obtained for each year of service in specified remote or difficult
areas of the State up to the maximum of 30% of the marks
obtained in NEET. This provision even if read liberally does not
provide for reservation for in-service candidates, but only of
giving a weightage in the form of incentive marks as specified
C to the class of in-service candidates (who have served in notified
remote and difficult areas in the State).
26. From the plain language of this proviso, it is amply clear that
it does not envisage reservation for in-service candidates in
respect of postgraduate “degree” courses with which we are
D presently concerned. This proviso postulates giving weightage of
marks to “specified in-service candidates” who have worked in
notified remote and/or difficult areas in the State—both for
postgraduate “degree” courses as also for postgraduate
“diploma” courses. Further, the weightage of marks so allotted
is required to be reckoned while preparing the merit list of
E candidates.
27. Thus understood, the Central enactment and the regulations
framed thereunder do not provide for reservation for in-service
candidates in postgraduate “degree” courses. As there is no
express provision prohibiting reservation to in-service candidates
F in respect of admission to postgraduate “degree” courses, it was
contended that providing for such reservation by the State
Government is not impermissible in law. Further, there are
precedents of this Court to suggest that such arrangement is
permissible as a separate channel of admission for in-service
candidates. This argument does not commend to us. In the first
G place, the decisions pressed into service have considered the
provisions regarding admission process governed by the
regulations in force at the relevant time. The admission process
in the present case is governed by the regulations which have
come into force from the academic year 2013-2014. This
H Regulation is a self-contained code. There is nothing in this
Regulation to even remotely indicate that a separate channel for
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 703
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
admission to in-service candidates must be provided, at least in A
respect of postgraduate “degree” courses. In contradistinction,
however, 50% seats are earmarked for the postgraduate
“diploma” courses for in-service candidates, as is discernible
from clause (VII). If the regulation intended a similar separate
channel for in-service candidates even in respect of postgraduate
B
“degree” courses, that position would have been made clear in
Regulation 9 itself. In absence thereof, it must be presumed that
a separate channel for in-service candidates is not permissible
for admission to postgraduate “degree” courses. Thus, the State
Government, in law, had no authority to issue a Government Order
such as dated 28-2-2014, to provide to the contrary. Hence, the C
High Court was fully justified in setting aside the said government
order being contrary to the mandate of Regulation 9 of the 2000
Regulations, as applicable from the academic year 2013-2014.”
16. The reliefs prayed for by the petitioners in Writ
Petition(C)No. 252 of 2018, Writ Petition(C)No. 295 of 2018 and Writ D
Petition(C)No. 293 of 2018 are broadly the same. In the petition
instituted by the Association of Tamil Nadu Medical Officers, it has
been pleaded that since the year 1989, the State of Tamil Nadu had a
policy for providing separate source of entry for in-service candidates
to the extent of the 50 per cent of the seats in degree courses.
Thereafter the State had also provided weightage to those in-service E
doctors who have served in rural, remote or difficult areas. The
grievances of the petitioners arose in the light of the findings of this
Court in the case of Dinesh Singh Chauhan (supra). The petitioners’
apprehension was that it would be impermissible for the State to provide
a separate source of entry for in-service candidates and that any such F
exercise of power by State would be in contradiction of Clause 9 which
would cause grave prejudice to them. In this context, they made the
prayers which we have already referred to. A Bench of three Hon’ble
Judges of this Court, at the time of the admission of the Writ Petition
(Civil) no. 196 of 2018, on 13th April 2018 opined that the said writ
petition required consideration by a larger bench. Before the said Bench G
of this Court, it was the petitioners’ case in Writ Petition (Civil) no.
196 of 2018 that at least three Constitution Bench decisions of this Court,
R. Chitralekha and Anr. vs. State of Mysore & Ors.(AIR 1964
SC 1823), Kumari Chitra Ghosh & Anr. vs. Union of India & Ors.
[(1969) 2 SCC 228] and Modern Dental College and Research
H
Centre & Ors. vs. State of Madhya Pradesh & Ors. [(2016) 7
704 SUPREME COURT REPORTS [2020] 8 S.C.R.
A SCC 353] had not been considered in the case of Dinesh Singh
Chauhan (supra).
17. The Bench of three Hon’ble Judges in the order passed on
13th April 2018, observed and directed:-
B “12. Having heard the learned senior counsel appearing on both
the sides extensively, we are of the view that Dinesh Singh
Chauhan (supra), has not considered the legislative Entries in
respect of the contentions we have noted above. Apparently, it
appears no such contentions were raised before the Court. Same
is the situation with regard to the non-reference with respect to
C the three Constitution Bench decisions we have referred to above.
As far as Modern Dental (supra) is concerned, perhaps the
judgment had not been published by the time the judgment in
Dinesh Singh Chauhan (supra) was rendered.
13. The petitioners have raised several other contentions and
D
invited our reference to the judgments by Benches of equal
strength as in Dinesh Singh Chauhan (supra).
14. In the above circumstances, we are of the view that these
writ petitions require consideration by a larger Bench.
E 15. Learned senior counsel appearing for the petitioners have
strenuously pressed for an interim order since the counseling has
either commenced or in some States it is only about to
commence. Having regard to the entire facts and circumstances
of the case, we feel it is appropriate that even the interim relief
F should be considered by the larger Bench.
16. Accordingly, place the matters before the Hon’ble the Chief
Justice of India for consideration by a larger Bench, emergently.”
18. It is in this perspective the said writ petition has been referred
G to us. In the other proceedings which we are hearing now also the same
question of constitutional law is involved. There are, however, certain
factual variations as regards the manner in which such reservation is
contemplated. We shall briefly discuss first the ratio of the judgment in
the case of R. Chitralekha (supra). This was a case decided when
power was exclusively with the State Legislature to legislate in respect
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 705
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
of “Education including universities, subject to the provisions of Items A
63, 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 Seventh
Schedule to the Constitution. The dispute in that case before the
Constitution Bench of this Court arose from an order passed by the
State Government directing reservation of certain percentage of seats B
in professional and technical colleges and institutions. Such reservation
was for Backward Classes and Scheduled Castes and Tribes. The
Government order issued on 26th July, 1963 also defined Backward
Classes. The criteria for marking, as stipulated, was that 25 per cent
of maximum marks for examination in the optional subjects was to be
taken into account for making the selection of candidates for admission C
to engineering colleges was to be fixed as interview marks. Criteria
for allotting marks in the interview was also specified. The Selection
Committee had evolved certain different marking criteria for interviews.
Some of the unsuccessful candidates had approached the High Court
for quashing the orders issued by the Government in the matter of D
admissions to those institutions. The petitioning candidates asked for
direction that admission should be in the order of merit. The
‘reservation’ part of Governmental Order was sustained by the High
Court. The High Court, however, held that the Selection Committee had
abused the powers conferred upon it. The interviews were set aside
E
and direction was issued by the High Court for holding interviews afresh
in accordance with the scheme laid down by the Government. It was
urged before the Constitution Bench of this court by the writ petitioners
therein that the State Government had no power to appoint a selection
committee for admitting students to colleges on the basis of qualifications
higher than or different from those prescribed by the university. One F
of the grounds for questioning the power of the State Government to
appoint a selection committee was that coordination and determination
of standards of a university was a Union subject and the State had no
power to lay down Rules for maintaining the standards of university
education. Referring to an earlier decision of this Court, in the case of G
Gujarat University & Anr. vs. Shri Krishna & Ors. [(AIR) 1963
SC 703], it was held by the Constitution Bench:-
“The question was whether medium of instruction was
comprehended by either of those entries or whether it fell under
both. In that context it was observed at p. 715-16:
H
706 SUPREME COURT REPORTS [2020] 8 S.C.R.
A ‘The State has the power to prescribe the syllabi and courses of
study in the institutions named in Entry 66 (but not falling within
Entries 63 to 65) and as an incident thereof it has the power to
indicate the medium in which instruction should be imparted. But
the Union Parliament has an overriding legislative power to ensure
that the syllabi and courses of study prescribed and the medium
B
selected do not impair standards of education or render the
coordination of such standards either on an all India or other basis
impossible or even difficult.’
This and similar other passages indicate that if the law made by
the State by virtue of Entry 11 of List II of the Seventh Schedule
C to the Constitution makes impossible or difficult the exercise of
the legislative power of the Parliament under the entry
“coordination and determination of standards in institutions for
higher education or research and scientific and technical
institutions” reserved to the Union, the State law may be bad.
D This cannot obviously be decided on speculative and hypothetical
reasoning. If the impact of the State law providing for such
standards on Entry 66 of List I is so heavy or devastating as to
wipe out or appreciably abridge the central field, it may be struck
down. But that is a question of fact to be ascertained in each
case. It is not possible to hold that if a State Legislature made a
E law prescribing a higher percentage of marks for extra-curricular
activities in the matter of admission to colleges, it would be
directly encroaching on the field covered by Entry 66 of List I
of the Seventh Schedule to the Constitution. If so, it is not
disputed that the State Government would be within its rights to
F prescribe qualifications for admission to colleges so long as its
action does not contravene any other law.”
19. In the case of Modern Dental College (supra), a
Constitution Bench of this Court examined the impact of Entry 66 of
the Union List while analysing the legislative power of the State in
G regulating certain aspects of admission to institutions of higher education.
It was held in this judgment:-
“100. The competing entries are: List I entry 66 and List III Entry
25. In the process, List II Entry 32 also needs a glance. Thus,
for proper analysis, we reproduce these entries below:
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 707
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
List I A
66. Coordination and determination of standards in institutions for
higher education or research and scientific and technical
institutions.
List II
B
32. Incorporation, regulation and winding up of corporations, other
than those specified in List I, and universities; unincorporated
trading, literacy, scientific, religious and other societies and
associations; cooperative societies.
List III C
25. Education, including technical education, medical education
and universities, subject to the provisions of entries 63, 64, 65
and 66 of List I; vocational and technical training of labour.”
101. To our mind, Entry 66 in List I is a specific entry having a
very specific and limited scope. It deals with coordination and D
determination of standards in institutions of higher education or
research as well as scientific and technical institutions. The words
“coordination and determination of standards” would mean laying
down the said standards. Thus, when it comes to prescribing the
standards for such institutions of higher learning, exclusive domain
E
is given to the Union. However, that would not include conducting
of examination, etc, and admission of students to such institutions
or prescribing the fee in these institutions of higher education,
etc. In fact, such coordination and determination of standards,
insofar as medical education is concerned, is achieved by
parliamentary legislation in the form of the Indian Medical Council F
Act, 1956 and by creating the statutory body like Medical Council
of India (for short “MCI”) therein. The functions that are assigned
to MCI include within its sweep determination of standards in a
medical institution as well as coordination of standards and that
of educational institutions. When it comes to regulating
G
“education” as such, which includes even medical education as
well as universities (which are imparting higher education), that
is prescribed in List III Entry 25, thereby giving concurrent
powers to both Union as well as States. It is significant to note
that earlier education, including universities, was the subject-
matter of List II Entry 11. Thus, power to this extent was given H
708 SUPREME COURT REPORTS [2020] 8 S.C.R.
A to the State Legislatures. However, this entry was omitted by
the Constitution (Forty-second Amendment) Act, 1976 with effect
from 3-7-1977 and at the same time List II entry 25 was
amended. Education, including university education, was thus
transferred to the concurrent List and in the process technical
and medical education was also added. Thus, if the argument of
B
the appellants is accepted, it may render Entry 25 otiose. When
two entries relating to education, one in the Union List and the
other in the concurrent List, coexist, they have to be read
harmoniously. Reading in this manner, it would become manifest
that when it comes to coordination and laying down of standards
C in the higher education or research and scientific and technical
institutions, power rests with the Union/Parliament to the exclusion
of the State Legislatures. However, other facets of education,
including technical and medical education, as well as governance
of universities is concerned, even State Legislatures are given
power by virtue of Entry 25. The field covered by List III entry
D
25 is wide enough and as circumscribed to the limited extent of
it being subject to List I Entries 63, 64, 65 and 66.”
102. Most educational activities, including admissions, have two
aspects: the first deals with the adoption and setting up the
minimum standards of education. The objective in prescribing
E minimum standards is to provide a benchmark of the calibre and
quality of education being imparted by various educational
institutions in the entire country. Additionally, the coordination of
the standards of education determined nationwide is ancillary to
the very determination of standards. Realising the vast diversity
F of the nation wherein levels of education fluctuated from lack
of even basic primary education, to institutions of high excellence,
it was thought desirable to determine and prescribe basic
minimum standards of education at various levels, particularly at
the level of research institutions, higher education and technical
education institutions. As such, while balancing the needs of States
G to impart education as per the needs and requirements of local
and regional levels, it was essential to lay down a uniform
minimum standard for the nation. Consequently, the Constitution-
makers provided for List I Entry 66 with the objective of
maintaining uniform standards of education in fields of research,
H higher education and technical education.
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 709
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
103. The second/other aspect of education is with regard to the A
implementation of the standards of education determined by
Parliament, and the regulation of the complete activity of
education. This activity necessarily entails the application of the
standards determined by Parliament in all educational institutions
in accordance with the local and regional needs. Thus, while List B
I Entry 66 dealt with determination and coordination of standards,
on the other hand, the original List II Entry 11 granted the States
the exclusive power to legislate with respect to all other aspects
of education, except the determination of minimum standards and
coordination which was in national interest. Subsequently, vide
C
the Constitution (Forty-second Amendment) Act, 1976, the
exclusive legislative field of the State Legislature with regard to
education was removed and deleted, and the same was replaced
by amending List III Entry 25 granting concurrent powers to both
Parliament and State Legislature the power to legislate with
respect to all other aspects of education, except that which was D
specifically covered by List I Entries 63 to 66.
104. No doubt, in Bharati Vidyapeeth [Bharati Vidyapeeth v.
State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] it
has been observed that the entire gamut of admission falls under
List I Entry 66. The said judgment by a Bench of two Judges is, E
however, contrary to law laid down in earlier larger Bench
decisions. In Gujarat University [Gujarat University v.
Krishna Ranganath Mudholkar, AIR 1963 SC 703 : 1963 Supp
(1) SCR 112] , a Bench of five Judges examined the scope of
List II Entry 11 (which is now List III Entry 25) with reference F
to List I Entry 66. It was held that the power of the State to
legislate in respect of education to the extent it is entrusted to
Parliament, is deemed to be restricted. Coordination and
determination of standards was in the purview of List I and power
of the State was subject to power of the Union on the said G
subject. It was held that the two entries overlapped to some
extent and to the extent of overlapping the power conferred by
List I Entry 66 must prevail over power of the State. Validity of
a State legislation depends upon whether it prejudicially affects
“coordination or determination of standards”, even in
H
710 SUPREME COURT REPORTS [2020] 8 S.C.R.
A absence of a Union legislation. In R. Chitralekha v. State of
Mysore [R. Chitralekha v. State of Mysore, AIR 1964 SC 1823
: (1964) 6 SCR 368] , the same issue was again considered. It
was observed that if the impact of the State law is heavy or
devastating as to wipe out or abridge the Central field, it may be
B struck down. In State of T.N. v. Adhiyaman Educational &
Research Institute [State of T.N. v. Adhiyaman Educational
& Research Institute, (1995) 4 SCC 104 : 1 SCEC 682] , it was
observed that to the extent that State legislation is in conflict with
the Central legislation under Entry 25, it would be void and
inoperative. To the same effect is the view taken in Preeti
C
Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC
120 : 1 SCEC 742] and State of Maharashtra v. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya [State of
Maharashtra v. Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637] . Though the
D view taken in State of M.P. v. Nivedita Jain [State of M.P. v.
Nivedita Jain, (1981) 4 SCC 296] and Ajay Kumar Singh v.
State of Bihar [Ajay Kumar Singh v. State of Bihar, (1994) 4
SCC 401] to the effect that admission standards covered by List
I Entry 66 could apply only post admissions was overruled in
E Preeti Srivastava [Preeti Srivastava v. State of M.P.,(1999) 7
SCC 120 : 1 SCEC 742], it was not held that the entire gamut
of admissions was covered by List I as wrongly assumed in
Bharati Vidyapeeth [Bharati Vidyapeeth v. State of
Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535.
F 105. We do not find any ground for holding that Preeti
Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC
120 : 1 SCEC 742] excludes the role of States altogether from
admissions. Thus, observations in Bharati Vidyapeeth [Bharati
Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2
G SCEC 535] that entire gamut of admissions was covered by List
I Entry 66 cannot be upheld and overruled to that extent. No
doubt, List III Entry 25 is subject to List I Entry 66, it is not
possible to exclude the entire gamut of admissions from List III
Entry 25. However, exercise of any power under List III Entry
25 has to be subject to a Central law referable to Entry 25.
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 711
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
In Her concurring opinion, Banumathi J.(as her Ladyship then A
was) observed :-
“132. The intent of our Constitution Framers while introducing
entry 66 of the Union List was thus limited only to empowering
the Union to lay down a uniform standard of higher education
throughout the country and not to bereft the State Legislature of B
its entire power to legislate in relation to “education” and
organising its own common entrance examination.”
20. The Constitution Bench in the case of Modern Dental
College (supra) did not opine that there was plenary legislative power
of the Union covering the entire field of admission in higher educational
C
institutions. In the case of Dinesh Singh Chauhan (supra), another
Constitution Bench decision of this Court Dr. Preeti Srivastava &
Anr. vs. State of M.P. & Ors.(1999)7 SCC 120 was referred to and
followed. In the case of Dr. Preeti Srivastava (supra), this Court
examined the following question:
“The question is whether apart from providing reservation for D
admission to the postgraduate courses in Engineering and
Medicine for special category candidates, it is open to the State
to prescribe different minimum qualifying marks, for special
category candidates seeking admission under the reserved
category.” E
21. The case of Preeti Srivastava (supra) involved the question
of prescribing minimum percentage of qualifying marks for the reserved
category candidates (with reference to Article 15(4) of the Constitution
of India). As regards the respective powers of the State and the Union
to legislate in the field of education, it was held:
F
“35. The legislative competence of Parliament and the
legislatures of the States to make laws under Article 246 is
regulated by the VIIth Schedule to the Constitution. In the VIIth
Schedule as originally in force, Entry 11 of List II gave to the
State an exclusive power to legislate on “education including
universities, subject to the provisions of Entries 63, 64, 65 and G
66 of List I and Entry 25 of List III”.
Entry 11 of List II was deleted and Entry 25 of List III was
amended with effect from 3-1-1976 as a result of the Constitution
42nd Amendment Act of 1976. The present Entry 25 in the
Concurrent List is as follows: H
712 SUPREME COURT REPORTS [2020] 8 S.C.R.
A “25. Education, including technical education, medical education
and universities, subject to the provisions of Entries 63, 64, 65
and 66 of List I; vocational and technical training of labour.”
Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of
List I is as follows:
B “66. Coordination and determination of standards in institutions
for higher education or research and scientific and technical
institutions.”
Both the Union as well as the States have the power to legislate
on education including medical education, subject, inter alia, to
C Entry 66 of List I which deals with laying down standards in
institutions for higher education or research and scientific and
technical institutions as also coordination of such standards. A
State has, therefore, the right to control education including
medical education so long as the field is not occupied by any
Union legislation. Secondly, the State cannot, while controlling
D education in the State, impinge on standards in institutions for
higher education. Because this is exclusively within the purview
of the Union Government. Therefore, while prescribing the
criteria for admission to the institutions for higher education
including higher medical education, the State cannot adversely
E affect the standards laid down by the Union of India under Entry
66 of List I. Secondly, while considering the cases on the subject
it is also necessary to remember that from 1977, education,
including, inter alia, medical and university education, is now in
the Concurrent List so that the Union can legislate on admission
criteria also. If it does so, the State will not be able to legislate
F in this field, except as provided in Article 254.”
22. On the aspect of laying down norms for admission, it was
held in the case of Dr. Preeti Srivastava (supra):
36. It would not be correct to say that the norms for admission
have no connection with the standard of education, or that the
G rules for admission are covered only by Entry 25 of List III.
Norms of admission can have a direct impact on the standards
of education. Of course, there can be rules for admission which
are consistent with or do not affect adversely the standards of
education prescribed by the Union in exercise of powers under
Entry 66 of List I. For example, a State may, for admission to
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 713
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
the postgraduate medical courses, lay down qualifications in A
addition to those prescribed under Entry 66 of List I. This would
be consistent with promoting higher standards for admission to
the higher educational courses. But any lowering of the norms
laid down can and does have an adverse effect on the standards
of education in the institutes of higher education. Standards of
education in an institution or college depend on various factors. B
Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of
education in the given span of time;
C
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds
available to each student;
(5) the calibre of the students admitted to the institution;
D
(6) equipment and laboratory facilities, or hospital facilities
for training in the case of medical colleges;
(7) adequate accommodation for the college and the
attached hospital; and
(8) the standard of examinations held including the manner E
in which the papers are set and examined and the
clinical performance is judged.”
23. From a composite reading of these authorities, the position
of law as emerges, is that all aspects of admission cannot be said to
be covered by Entry 66 of the Union List, even if the entire admission
process is incorporated in a single code. Certain aspects of admission F
stipulated by the State may trespass into legislative zone of “coordination
and determination of standards.” One illustration of such potential
trespass would be lowering the eligibility criteria for admission fixed
by a Union legislation, the 2000 Regulations in this case. In such a
situation, the State would be encroaching upon exclusive field of the G
Union. The case of Preeti Srivastava (supra) was decided broadly
on this rationale. But there can be Rules on facets of admission process
in institutions of higher education framed by the State legislature which
would not have impact on the subjects enumerated against Entry 66 of
the Union List, and thus would not result in conflict with the latter. While
analysing the State’s power to legislate under Entry 11 of List II of the H
714 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Seventh schedule of the Constitution, as it originally existed, it has been
observed in the case of Modern Dental College (supra) that
“…except the determination of minimum standards and coordination
which was in the national interest..”, the State had power to legislate
with respect to all other aspects of education. Now that the subjects
of erstwhile Entry 11 of List II find their way in the Concurrent List,
B the State’s power is further subject to any statutory instrument owing
its origin to any Union legislation, even if such statutory instrument is
not enacted on the basis of exclusive power of the Union contained in
Entry 66 of List I. In that context, we would have to examine as to
whether these facets of admission to the postgraduate medical degree
C course from a separate entry channel comprising of in-service doctors
stand already covered or occupied by the statutory instrument in the
form of 2000 Regulations owing its origin to a Union legislation comes
within the ambit of Entry 66 of List-I. If not, the subject-entry would
be in the concurrent list and it would be permissible for the States to
lay down their own norms, which are not covered by any Union
D legislations. In the case of Modern Dental College (supra), this was
the judicial approach of the Constitution Bench. We find support for
taking this view from the case of R. Chitralekha (supra) also. In the
latter authority, of course, the competing entries were in List I and List
II of the Seventh Schedule of the Constitution and the dispute was on
methodology of marking in the selection process as also reservation for
E Backward Classes and Scheduled Castes. In R. Chitralekha (supra),
this Court, in substance took the view that the subject heads of Entry
66 of List I did not encompass every aspect of admission process in
higher educational institutions and opined that State legislative
competence stood retained to deal with certain features connected with
F the admission process also, unless the State’s action in that regard
directly encroached upon the subjects comprised within the Union List.
There can thus be certain features of the admission procedure over
which the State can also have power to make stipulations. In a more
recent case, Yatinkumar Jasubhai Patel and Others vs. State of
Gujarat and Ors. [(2019) 10 SCC 1], a Bench comprising of three
G Judges examined a similar question involving interpretation of Gujarat
University Act, 1949. In consideration of this Court was Rules framed
by the Gujarat University for the purpose of governing admission to
postgraduate course. So far as 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
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 715
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
This Court observed, inter-alia, in this judgment:- A
“9.5. Even while giving admissions in the State quota/institutional
reservation quota, still the admissions are required to be given
on the basis of the merits determined on the basis of NEET
examination results. Under the circumstances, introduction of the
NEET scheme, as such, has nothing to do with the “institutional B
preference.....”
24. The third authority referred to by the three Hon’ble Judges
of this Court while referring the Writ Petition of Tamil Nadu Medical
Officers Association & Ors., in pursuance of which these matters
have been placed before us on reference, is the decision of another
C
Constitution Bench of this Court, the case of Kumari Chitra Ghosh
& Anr.(supra). The dispute in this case was over reservations made
in respect of certain categories of students for admission to the MBBS
course in a medical college under the Delhi University. 25 per cent of
the seats (excluding the seats reserved for Government of India
nominees) were reserved for girl students. There was, however, eight D
stipulated categories of students who were eligible for admission. These
categories included being residents of Delhi, wards of central
government servants posted in Delhi, cultural scholars etc.
25. The minimum percentage of marks which a candidate seeking
admission was to obtain in the aggregate of compulsory subject was E
55. The appellants obtained 62.5% marks and were domiciled in Delhi.
But they could not obtain admission because of admission given to certain
students nominated by the Central Government who got marks lower
to what they had obtained. They approached the Delhi High Court
questioning the power of the Central Government to make nomination,
but their petitions were dismissed. F
The appeal before this Court was by certificate.
26. It was held in this judgment, on the aspect of classification
of that category of students:-
“8. As laid down in Shri Ram Krishna Dalmia v. Shri justice S.R.
G
Tendolkar & Others, Article 14 forbids class legislation; it does
not forbid reasonable classification. In order to pass the test of
permissible classification two conditions must be fulfilled- (i) that
the classification is founded on intelligible differentia which
distinguishes persons or things that are grouped together from
others left out of the group and (ii) differentia must have a rational H
716 SUPREME COURT REPORTS [2020] 8 S.C.R.
A relation to the object sought to be achieved. The first group of
persons for whom seats have been reserved are the sons and
daughters of residents of Union Territories other than Delhi.
These areas are well known to be comparatively backward and
with the exception of Himachal Pradesh they do not have any
Medical College of their own. It was necessary that persons
B desirous of receiving medical education from these areas should
be provided some facility for doing so. As regards the sons and
daughters of Central Government servants posted in Indian
Missions abroad it is equally well known that due to exigencies
of their service these persons are faced with lot of difficulties in
C the matter of education. Apart from the problems of language, it
is not easy or always possible to get admission into institutions
imparting medical education in foreign countries. The Cultural,
Colombo Plan and Thailand scholars are given admission in
medical institutions in this country by reason of reciprocal
arrangements of educational and cultural nature. Regarding
D Jammu and Kashmir Scholars it must be remembered that the
problems relating to them are of a peculiar nature and there do
not exist adequate arrangements for medical education in the State
itself for its residents. The classification in all these cases is based
on intelligible differentia which distinguished them from the group
to which the appellants belong.
E
9. It is the Central Government which bears the financial burden
of running the medical college. It is for it to lay down the criteria
for eligibility. From the very nature of things it is not possible to
throw the admission open to students from all over the country.
The Government cannot be denied the right to decide from what
F sources the admission will be made. That essentially is a question
of policy and depends inter alia on an overall assessment and
survey of the requirements of residents of particular territories
and other categories of persons for whom it is essential to provide
facilities for medical education. If the sources are properly
classified whether on territorial, geographical or other reasonable
G
basis it is not for the courts to interfere with the manner and
method of making the classification.”
This judgment was founded on the principle of reasonable
classification and has been subsequently followed in other cases as well
where certain categories of candidates have been given benefits in the
H admission process based on certain specified criteria.
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 717
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
27. The issue to be addressed now is as to whether Clause 9 of A
the 2000 Regulations is relatable to Entry 66 of List I of Seventh Schedule
of the Constitution or as to whether the source of power to make such
Regulation, particularly in relation to providing a separate entry channel
for in-service candidates come under Entry 25 of the Concurrent List.
In the event we find that the entry relates to the Concurrent List, in
such a situation also we shall have to examine if the field for formulating B
admission quota for in-service doctors stands entirely occupied by the
aforesaid MCI Regulations or not. For this exercise, however, we shall
have to analyse the different provisions of Clause 9 of the 2000
Regulations.
28. Before we embark on such analysis, we shall deal with two C
other aspects of dispute having Constitutional import involved in this
reference. First, we would test the nature or character of the State
quota, which we have so far referred to as reservation. Clause 9 (4)
or Clause 9 (IV) as it stood prior to 5 th April 2018 of the 2000
Regulations permit reservation as per the applicable laws of the State
D
or the Union Territory. In the case of Dinesh Singh Chauhan (supra),
the three Judge Bench of this Court opined that the reservation referred
to in the opening part of the said clause is akin to reservation as per
constitutional scheme and does not embrace reservation for in-service
candidates. We have quoted paragraph 25.4 of the report in which such
view has been expressed. We are in agreement with the opinion E
expressed in the case of Dinesh Singh Chauhan on this construction
of Clause 9 (4) of the 2000 Regulations. In a series of judgments
including the cases of D.N. Chanchala vs. The State of Mysore and
Others [(1971) 2 SCC 293], K. Duraiswami & Anr. vs. State of
Tamil Nadu & Ors. [(2001) 2 SCC 538], AIIMS Students Union
vs. AIIMS and Others [(2002) 1 SCC 428] as also State of M.P.& F
Ors vs. Gopal D. Tirthani & Ors. [(2003) 7 SCC 83], it has been
held that allocation of seats for in-service candidates is only a separate
or exclusive channel of entry or source of admission and such entry-
path cannot be equated with reservation provisions incorporated as
compensatory discrimination. But classifying a category of candidates
G
for such distinct or separate channel has been upheld consistently,
provided such categorisation is based on intelligible differentia. In fact,
on the question of such entry channel being based on reasonable
classification, it has been held in the case of Gopal D. Tirthani
(supra):-
H
718 SUPREME COURT REPORTS [2020] 8 S.C.R.
A “21. To withstand the test of reasonable classification within the
meaning of Article 14 of the Constitution, it is well settled that
the classification must satisfy the twin tests: (i) it must be founded
on an intelligible differentia which distinguishes persons or things
placed in a group from those left out or placed not in the group,
and (ii) the differentia must have a rational relation with the
B object sought to be achieved. It is permissible to use territories
or the nature of the objects or occupations or the like as the basis
for classification. So long as there is a nexus between the basis
of classification and the object sought to be achieved, the
classification is valid. We have, in the earlier part of the judgment,
C noted the relevant statistics as made available to us by the learned
Advocate-General under instructions from Dr Ashok Sharma,
Director (Medical Services), Madhya Pradesh, present in the
Court. The rural health services (if it is an appropriate expression)
need to be strengthened. 229 community health centres (CHCs)
and 169 first-referral units (FRUs) need to be manned by
D specialists and block medical officers who must be postgraduates.
There is nothing wrong in the State Government setting apart a
definite percentage of educational seats at postgraduation level
consisting of degree and diploma courses exclusively for the in-
service candidates. To the extent of the seats so set apart, there
is a separate and exclusive source of entry or channel for
E admission. It is not reservation. In-service candidates, and the
candidates not in the service of the State Government, are two
classes based on an intelligible differentia. There is a laudable
purpose sought to be achieved. In-service candidates, on attaining
higher academic achievements, would be available to be posted
F in rural areas by the State Government. It is not that an in-service
candidate would leave the service merely on account of having
secured a postgraduate degree or diploma though secured by
virtue of being in the service of the State Government. If there
is any misapprehension, the same is allayed by the State
Government obtaining a bond from such candidates as a condition
G precedent to their taking admission that after completing PG
degree/diploma course they would serve the State Government
for another five years. Additionally, a bank guarantee of rupees
three lakhs is required to be submitted along with the bond. There
is, thus, clearly a perceptible reasonable nexus between the
classification and the object sought to be achieved.”
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 719
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
29. The same view stands consistently reflected in a large body A
authorities, including the cases of Dr. Snehalata Patnaik & Ors vs.
State of Orissa & Ors [(1992) 2 SCC 26], Pre PG Medical
Sangharsh Committee & Anr. vs. Dr. Bajrang Soni & Ors. [(2001)
8 SCC 694], and the case of AIIMS Students Union (supra). In the
case of Satyabrata Sahoo & Ors. vs State of Orissa & Ors. [(2012)
8 SCC 203] also, there were two entry channels, one for in-service B
candidates and the other for open-category candidates. Provisions for
these two entry paths were not under challenge in that case. The
constitutionality of institutional preference in postgraduate courses in
favour of in-house candidates was found to be valid, on the basis of
reasonable classification in the case of AIIMS (supra). The case of C
Yatin Kumar Jasubhai Patel & Ors. (supra) also is based on similar
reasoning. In order to justify the retention of such source of entry into
postgraduate medical degree courses, it was argued on behalf of the
State of Tamil Nadu and State of West Bengal by Mr. Vaidyanathan
and Mr. Giri, for the former and Mr. Rakesh Dwivedi, learned Senior
Advocate for the latter that such reservation was necessary for proper D
functioning of the public health system as the respective States have
shortage of specialised better qualified doctors to serve the remote areas.
This stand has been supported by Mr. P.V. Surendranath, learned Senior
Advocate appearing for the West Bengal University of Health Sciences.
The same stand has been taken by Mr. Jaideep Gupta, learned Senior
Advocate for the State of Kerala and Mr. Rahul Chitnis, learned E
Advocate for the State of Maharashtra. The theme of argument on
behalf of the in-service doctors has been that they have to discharge
arduous duties serving a large number of patients across the respective
States and it is always not possible for them to academically update to
meet the theoretical standards set by the MCI for the entrance F
examination. Mr. Sanjay Hegde and Mr. Vijay Hansaria, learned Senior
Advocates have appeared before us for the petitioners in W.P. (C)No.
252 of 2018, W.P.(C) No. 293 of 2018 and W.P.(C)No.295 of 2018.
Learned Senior Advocates for these petitioners as also the appellant
in-service doctors in the appeals arising out of the judgment of the High
Court of Calcutta have sought to justify their defence on the same G
grounds. On the aspect of legislative competence, the rival arguments
have already been dealt with in our discussions earlier in this judgment.
We are satisfied that the doctors in employment of the States and allied
sectors form a separate and distinct class and for the purpose of
admission in postgraduate degree courses they can be given certain
H
720 SUPREME COURT REPORTS [2020] 8 S.C.R.
A elements of preference. Holding them to be a distinct group fits in with
overall objective of having medical professionals with superior
qualification for tending to the needs of the general public. Moreover,
the 2000 Regulations by permitting award of incentive marks to them
and also providing for 50 per cent reservation in diploma courses
indirectly recognise this category of doctors as a separate class. But
B do the provisions of 2000 Regulations permit the States to provide quota
for such in-service candidates?
30. In the case of Modern Dental College (supra), it has been
explained the manner in which Entry 66 of List I ought to be interpreted
while dealing with admission to postgraduate medical admission course.
C It has been held in this judgment that the said entry in List I is having
a very specific and limited scope. It has also been held in the said
decision that while setting standards in educational institutions for higher
studies would be in the exclusive domain of the Union, that might not
include conducting of examination etc. Regulating medical education
would come within Entry 25 of the List III giving concurrent powers
D
to both Union as well as States. In the case of Modern Dental
College (supra), the rules for admission into medical postgraduate
courses framed by the State government were assailed.
31. Referring to the judgment of this Court in the case of Preeti
Srivastava (supra), the Constitution Bench did not find any ground for
E holding that the said judgment excluded the role of States altogether
from admissions.
32. Now, turning to the context in which we are adjudicating the
present set of proceedings, we have to ascertain as to whether setting
apart specified percentage of seats for in-service doctors in postgraduate
F medical degree courses is referable to matters of admissions or
standards of education. It has been acknowledged in the decision of
Modern Dental College (supra) that there may be certain overlapping
of subjects vis-à-vis Entry 66, List I and Entry 25, List III to the Seventh
Schedule of the Constitution of India. In our opinion, the question of
providing a separate entry-path to in-service doctors may have some
G effect on overall standard of medical education at the postgraduate
degree level institutions, as the students who would gain admission to
such courses may not come purely on the basis of a uniform order of
merit. But that is not the manner in which we ought to interpret the
expression “standards” in institutions of higher education. The
H Constitution Bench judgment in the case of Modern Dental College
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 721
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
(supra) has construed the words “coordination and determination of A
standards” to mean laying down the standards of education. Analysis
of Clause 9 of the 2000 Regulations reveals that the said clause provides
a minimum entry standard in the form of clearance of the NEET on
obtaining minimum of marks of 50 per cent by general category
candidates. Once these standards are laid down, we are of the view
that if the State authorities provide an independent channel of entry for B
in-service doctors in postgraduate medical degree courses, who fulfil
the aforesaid minimum standards, as the latter expression has been
construed in the case of Modern Dental College (supra), provisions
to that effect would not be in breach of the constitutional scheme. The
impact on the “standards”, as the expression is to be construed in Entry C
66 of the first list, would be far too distant from admission norms framed
by the State authorities for such in-service doctors. The separate entry-
channel for in-service doctors would be integral to the admission norms,
relatable to the Entry 25 of the Concurrent List. Such admission norms
if compatible with minimum standards laid down by the MCI, would
fall under the items specified against the aforesaid entry of List III. D
33. The question that arises next is whether Clause 9 of the 2000
Regulations lay down the procedure for admission in such a manner
that providing a separate entry channel for in-service doctors even
through the State merit list by an independent statutory instrument would
be contrary to the provisions of the 2000 Regulations or not. If that is E
the case, then the respective State legislations and Regulations would
fall foul of Article 246 and Article 254 of the Constitution of India. We
reproduce below the text of Articles 246 and 254 of the Constitution
of India:-
“Article 246- Subject-matter of laws made by Parliament and F
by the Legislatures of States.-
(1) Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List I in
the Seventh Schedule (in this Constitution referred to
as the “Union List”) G
(2) Notwithstanding anything in clause (3), Parliament and,
subject to Clause (1), the legislature of any State also,
have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule
(in this Constitution referred to as the “Concurrent List”). H
722 SUPREME COURT REPORTS [2020] 8 S.C.R.
A (3) Subject to Clauses (1) and (2), the Legislature of any
State has exclusive power to make laws for such State
or any part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule (in this
Constitution referred to as the “State List”).
B (4) Parliament has power to make laws with respect to any
matter for any part of the territory of India not included
[in a State] notwithstanding that such matter is a matter
enumerated in the State List.
Article 254- Inconsistency between laws made by Parliament
and laws made by the Legislatures of States- (1) If any provision
C
of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing law with
respect to one of the matters enumerated in the Concurrent List,
then, subject to the provisions of clause (2), the law made by
D Parliament, whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the existing
law, shall prevail and the law made by the Legislature of the State
shall to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with
E respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law
so made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and
F has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament form
enacting at any time any law with respect to the same matter
including a law adding to, amending, varying or repealing the law
so made by the Legislature of the State.”
G 34. It has been argued on behalf of the Union of India by
Mr. Aman Lekhi, learned Additional Solicitor General of India and by
Mr. Vikas Singh, learned Senior Advocate appearing for the MCI that
the said Clause 9 is a self-contained code and there is an implied bar
upon permitting a separate source of entry for in-service doctors. Clause
9(4) of the 2000 Regulations makes provisions for reservation of seats
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 723
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
in postgraduate courses, not making any distinction between degree and A
diploma courses. In Clause 9(8) thereof, or in Clause 9(VII) in its earlier
form, reservation of 50 per cent seats in diploma courses has been
prescribed. Main stand of the MCI is that the degree course is a full-
fledged three years course and clinical subjects in such course is one
of the most sought after by the students. It is MCI’s case that
postgraduate degrees enable the students to pursue super speciality B
courses later on as well as become teachers in medical institutes. The
PG diploma course, on the other hand, according to the MCI, is of
greater practical value for treating patients in remote and difficult or
rural areas of the country. The MCI, according to Mr. Singh has sought
to strike a balance between competing interest of in-service candidates C
and direct candidates as also interest of the States in ensuring quality
medical treatment to remote areas, while not compromising on merit.
This stand has been supported by Mr. Nidhesh Gupta, learned Senior
Advocate representing private respondents from open- category
appearing in the appeals arising out of the judgment of the Calcutta
High Court. The disadvantages spelt out by the in-service doctors is of D
being out of touch with academic developments because of their
pressing duties often in remote locations. These disadvantages were
considered by this Court in the case of AIIMS (supra), and it was
recorded in that judgment, in reference to the case of K. Duraiswamy
(supra) in paragraph 31 of the report:-
E
“Some of them had done graduation sometime in the past and
were either picked up in the government service or had sought
for joining government service because, may be, they could not
get a seat in postgraduation and thereby continue their studies
because of shortage of seats in higher level of studies. On
account of their having remained occupied with their service F
obligations, they became detached or distanced from theoretical
studies and therefore could not have done so well as to
effectively compete with fresh medical graduates at the PG
entrance examination. Permitting in-service candidates to do
postgraduation by opening a separate channel for admittance
G
would enable their continuance in government service after
postgraduation which would enrich health services of the nation.
Candidates in open category having qualified in postgraduation
may not necessarily feel attracted to public services. Providing
two sources of entry at the postgraduation level in a certain
proportion between in-service candidates and other candidates H
724 SUPREME COURT REPORTS [2020] 8 S.C.R.
A thus achieves the laudable object of making available better
doctors both in public sector and as private practitioners. The
object sought to be achieved is to benefit two segments of the
same society by enriching both at the end and not so much as to
provide protection and encouragement to one at the entry level.”
B 35. According to Mr. Singh, these drawbacks being faced by
in-service doctors can be overcome by awarding incentive marks
contemplated in proviso to sub-clause (4) of Clause 9. Even if we
proceed on the basis that Clause 9 is a self-contained code, as held in
the case of Sudhir N. (supra), such interpretation having been approved
in the case of Dinesh Singh Chauhan (supra), in our view a self-
C contained code can cover only those subjects which are contained in
such code. This is not an exhaustive code covering every feature of
admission to postgraduate degree courses in medical education. If the
code does not refer to certain matters, which do not have impact on or
dilute the main subject for which the code is made, appropriate
authorities are not enjoined from making provisions for such uncovered
D
areas. This we hold because the field of legislation involved in the
subject-dispute is a shared field between the Union and the States. The
legislative disability of the States would occur only when the Union
legislation covers the same subject on which State undertakes legislative
exercise and the State legislative instrument is found to be repugnant
E to the latter. There also can be vacant legislative zones within a code,
and such vacant zones can be filled up by the appropriate legislature.
We have already referred to the provisions contained in the code
pertaining to the admission process. Clause 9(4)(or Clause 9(IV) in its
earlier form) of the 2000 Regulations further stipulates that candidates
shall be admitted to post-graduate courses from the two merit lists only,
F as referred to in the said clause. On behalf of the writ petitioners who
had instituted proceedings in the High Court at Calcutta, it was submitted
that if a statute requires a thing to be done in a particular manner, it
must be done in that manner or not at all as held in Nazir Ahmed vs.
King Emperor AIR 1936 PC 253. Certain other authorities reiterating
the same dictum have been cited. This principle, however, has become
G
so well-established in our jurisprudence that we do not consider it
necessary to specifically refer to those authorities in this judgment. But
having regard to Clause 9(4) of the 2000 Regulations, we do not think
provision for reservation of in-service doctors by the State from the
State-wise merit list published in pursuance of that provision would result
H in deviation from a mandatory statutory scheme. The aforesaid sub-
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 725
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
clause is required to be construed in the light of the State’s power to A
make provisions over the admission norms, provided the candidates fulfil
the basic admission criteria contained in the 2000 Regulations. Having
regard to the legal and factual context of this case and considering the
fact that the issue of legislative competence arises in respect of an entry
belonging to shared, and not exclusive field of legislations, in our opinion
the said sub-clause cannot be interpreted to mean that the State is B
denuded of the power to make a separate channel of admission to the
said courses for in-service doctors from the State merit list. This is an
issue of legislative competence and the Nazir Ahmed dictum does not
come into conflict with the interpretation we are giving to this clause.
Application of that principle solely on the basis of a Union legislation, C
without examining the scope of the State’s legislative power in the given
context, would be contrary to the constitutional scheme in having
concurrent field of legislation. The said sub-clause does not prescribe
specific bar on the State authorities in providing for such reservation
or such separate entry-channel. The principle of implied exclusion also
would not apply here in our opinion. The principle of implied exclusion D
is derived from the latin dictum “expressio unius est exclusio
alterius”. There are authorities, which caution the Courts against
indiscriminate application of this doctrine, describing it to be a “dangerous
master” (Mary Angel and Ors. vs. State of Tamil Nadu (1999) 5
SCC 209, State of Karnataka vs. Union of India & Anr. (1977) 4
SCC 608, and Assistant Collector of Central Excise vs. National E
Tobacco of India Ltd. (1972) 2 SCC 560).
36. When a subject falls in a shared field of legislation, there may
be cases where the dominant legislative body may not have had made
provisions in a legislative instrument for which it had power to do so.
But in such a situation the dominant legislative body cannot prevent the F
secondary legislative body from making provisions in that regard. We
would make it clear here that we are using the terms “dominant
legislative body” to describe the Union legislature and “secondary
legislative body” to refer to the State legislature in the context of the
concurrent list only. We are doing so because in case of repugnancy G
between two legislative instruments originating from the Union and the
State legislatures in relation to any entry therein, the former is to prevail
as per the constitutional scheme. Turning back to the aspect of occupied
field, if certain areas of legislative entry is left void by the Union
Legislature, these void areas would come within the legislative power
of the secondary legislative body as the constitutional entry gives both H
726 SUPREME COURT REPORTS [2020] 8 S.C.R.
A the legislative bodies co-existing, power to legislate on such subjects.
Clause 9 of the 2000 Regulations is no doubt a self-contained code.
But as we have already observed, it is not an exhaustive code covering
all aspects of admission in postgraduate medical degree courses. The
scope of this code and extent of its operation has been explained by
this Court in the case of Yatinkumar Jasubhai Patel & Ors. (supra).
B
Negation of power of the State cannot be a matter of inference, or
such negation cannot be in anticipation that the Union Legislature may
make provisions in future in the vacant legislative space. The authorities
in support of this proposition are West U.P. Sugar Mills Association
& Ors vs. State of Uttar Pradesh & Ors. (2020 SCC Online SC
C 380), U.P. Cooperative Cane Unions Federations vs. West U.P.
Sugar Mills Association & Ors. [(2004) 5 SCC 430], S.R. Bommai
& Ors. vs. Union of India & Ors.[(1994) 3 SCC 1] and Tika Ramji
& Ors.etc vs. State of U.P.& Ors (AIR 1956 SC 676). Only in cases
where the State legislature makes a law repugnant to any provision of
law made by the Parliament, the Parliamentary law would prevail. We
D do not find the 2000 Regulations so overwhelming in its scope and extent
that we can proceed on the presumption that the entire field of admission
to postgraduate medical course stands covered by it. In the facts of
the given case, we do not think we can proceed on the basis of there
being implied repugnancy. Such repugnancy has to be direct and positive.
E 37. Is there any vacant space for State to prescribe a separate
entry-channel for in-service doctors, having regard to the admission
process laid down in the 2000 Regulations? In the case of Modern
Dental College (supra), it has been observed, referring to the earlier
Entry 11 of List II, that the States had exclusive power to legislate with
F respect to all aspects of education barring determination of standards
and coordination by the Parliament. In the case of Preeti Srivastava
(supra), legislative competence of the State making admission rules not
inconsistent with the standards set down by the Union Legislature has
been acknowledged. It has been observed in the judgment of Modern
Dental College (supra) that except the determination of minimum
G standards and coordination, State’s power in regulating medical education
was preserved. When the said entry (i.e. Entry 11 of List II) was
brought to the Concurrent List by 42nd Amendment to the Constitution
of India, the form of State’s power remained the same, provided of
course there was no repugnancy of a State statutory instrument with
any Union legislative provisions covering the same subject.
H
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 727
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
38. We are of the opinion that the admission process stipulating A
a distinct source of entry for in-service candidates by itself would not
constitute breach of the provisions of Clause 9 of the 2000 Regulations,
provided that the minimum standards mandated by the said Regulations
for being eligible to pursue postgraduate medical degree course are
adhered to. A separate source of entry for in-service doctors through
the State merit list in our view would come within the legislative power B
and competence of the State. We also take note of the fact that
reservation for in-service doctors has been a long standing practise and
the rationale behind such reservation appears to be reasonable to us.
But we refrain from dilating on the necessity of maintaining such practise
as in this judgment, we are primarily concerned with the question of C
competence of State authorities in making Rules providing for such
reservation.
39. Clause 9(4) of the 2000 Regulations stipulates entry into the
postgraduate courses from the two merit lists, one all India and the other
that of the State. The same was the scheme of Clause 9(IV) in its D
erstwhile form. The dispute in these proceedings, however, is mainly
on admission norms to postgraduate degree courses. If the State
authorities provide reservation for in-service doctors from within the
State’s own merit list, our view is that such an exercise would be
relatable to the admission process and the same would not be in breach
of any prohibition flowing from the 2000 Regulations. This would entail E
some form of variation of the merit list of the State, but we do not find
any prohibition under the 2000 Regulations against a State undertaking
that exercise. Such step undertaken by the State would be relatable to
the State’s legislative power derived from Entry 25 of the Concurrent
List and not covered by the 2000 Regulations. We do not find any
repugnancy with the 2000 Regulations if the State authorities create F
such a distinct channel of entry.
40. In the case of Gopal D. Tirthani (supra), there was
reservation for in-service candidates. This was found to be a separate
and exclusive channel of entry or source of admission. As we have
already observed, having a separate entry-channel for in-service G
candidates to postgraduate medical courses has been a long standing
practise. The Bench of three Hon’ble Judges of this Court in the case
of Dinesh Singh Chauhan (supra) sought to distinguish this factor on
the ground that the provisions of Clause 9, which was applicable at that
time the case of Gopal D. Tirthani (supra) was decided, was different
H
728 SUPREME COURT REPORTS [2020] 8 S.C.R.
A from its form as it subsisted when the former case was decided. But
the relevant clause, as reproduced in the judgment of Gopal D. Tirthani
(supra) did not contain any provision for separate entry route for
in-service candidates. Paragraph 6 of the said judgment [reported in
(2003) 7 SCC 83] reproduces Clause 9(1) as it prevailed then. We are
quoting below the said paragraph:-
B
“6. Regulation 9 of the Regulations framed by the Medical
Council of India reads as follows:-
“9. Selection of postgraduate students-(1) Students for
postgraduate medical courses shall be selected strictly on the
C basis of their academic merit.
For determining the academic merit, the university/institution may
adopt any one of the following procedures both for degree and
diploma courses:
(i) on the basis of merit as determined by a competitive
D
test conducted by the State Government or by the
competitive authority appointed by the State Government
or by the university/group of universities in the same
State;
(ii) on the basis of merit as determined by centralized test
E
held at the national level; or
(iii) on the basis of the individual cumulative performance
at the first, second and third MBBS examinations, if
such examinations have been passed from the same
university; or
F
(iv) combination of (i) and (iii)
Provided that whatever entrance test for postgraduate admissions
is held by a State Government or a university or any other
authorized examining body, the minimum percentage of marks
G for eligibility for admission to postgraduate medical course shall
be fifty per cent for all the candidates:
Provided further that in non-governmental institutions fifty per
cent of the total seats shall be filled by the competent authority
and the remaining fifty per cent by the management of the
H institution on the basis of merit.”
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 729
UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]
41. The selection criteria as contained in Clause 9 of the 2000 A
Regulations, which was considered by this Court in the case of Gopal
D. Tirthani (supra) and the content of Clause 9, which is the subject
of dispute in the present set of proceedings are no doubt not identical.
But the said clause which was examined in the case of Gopal D.
Tirthani (supra) had a merit based approach. Reservation of in-service
B
candidates was made through Executive Orders of the State
Government. We are not to undertake a word to word comparison of
Clause 9 as it prevailed at different points of time. What matters here
is that in its original or earlier version, no provision for reservation or
separate entry-channel for in-service doctors has been shown to us by
any of the learned counsel appearing for the parties. The State C
Government Orders laid down such distinct source of entry.
Interpretation of the same clause in its present form should also be based
on the same underlying reasoning.
42. Because of these reasons, we hold that there is no bar in
Clause 9 of the Postgraduate Medical Education Regulations, 2000 as D
it prevailed on 15th February 2012 and subsequently amended on 5th
April, 2018 on individual States in providing for reservation of in-service
doctors for admission into postgraduate medical degree courses. But
to take benefit of such separate entry channel, the aspiring in-service
doctors must clear the NEET Examination with the minimum prescribed
marks as stipulated in the 2000 Regulations. We respectfully differ from E
the views expressed by the Bench of three Hon’ble Judges of this Court
in the case of the State of Uttar Pradesh & Ors. vs. Dinesh Singh
Chauhan [(2016) 9 SCC 749] to the extent it has been held in the said
decision that reservation for the said category of in-service doctors by
the State would be contrary to the provisions of 2000 Regulations. In F
our opinion, that is not the correct view under the Constitution. The
reference is answered accordingly.
43. We also expect that the statutory instruments of the respective
State Governments providing for such separate channel of entry should
make a minimum service in rural or remote or difficult areas for a G
specified period mandatory before a candidate could seek admission
through such separate channel and also subsequent to obtaining the
degree. On completion of the course, to ensure the successful
candidates serve in such areas, the State shall formulate a policy of
making the in-service doctors who obtain entry in postgraduate medical
H
730 SUPREME COURT REPORTS [2020] 8 S.C.R.
A degree courses through independent in-service channel execute bonds
for such sum the respective States may consider fit and proper.
44. So far as the appeals against the judgment of the Calcutta
High Court are concerned, we are of the opinion that the judgment and
order of the High Court at Calcutta in MAT No.1222 of 2019 (Dr. Md.
B Babul Akhtar and Ors. vs. Dr. Md. Nazir Hossain & Ors.) along
with the allied appeals were not founded on proper interpretation of
law for the reasons we have already discussed. We accordingly set
aside the judgment under appeal, delivered on 1st October, 2019. All
the appeals are accordingly allowed. The memorandum dated 18th April,
2013 is restored and the writ petition filed in the High Court at Calcutta
C (W.P. No.8990(W) of 2019) shall stand dismissed. The writ petitions
filed before this Court being W.P.(Civil) No. 196 of 2018, W.P. (C)
No.252 of 2018, W.P.(C) No. 295 of 2018 and W.P.(C) No. 293 of
2018 shall stand allowed in the above terms.
45. We, however, direct that the doctors who are already
D undergoing the postgraduate degree courses on the basis of being
successful in the original writ petition filed in the High Court at Calcutta
shall not be disturbed from pursuing the said course. The same direction
shall also cover successful medical students who have already
undertaken admission in postgraduate medical degree courses following
the applicable admission process and are pursuing their postgraduate
E studies in the States of Gujarat, Haryana, Kerala, Maharashtra and
Tamil Nadu.
46. All connected applications shall stand disposed of. Interim
orders, if any shall stand dissolved.
F 47. There shall be no order as to costs.
Kalpana K. Tripathy Matters disposed of.
G
H
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