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

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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

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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

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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 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 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 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 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 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 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

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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 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 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, the State Government may, with a view to incentivize such service, give weightage in the marks for service in ‘remote’ or ‘difficult’ areas and (iv), the remote and difficult areas shall be notified by State Government from time to time; VII. There is no provision for ‘reservation’ of seats for such candidates who may have rendered service in remote or difficult areas. At best, and strictly as a policy measure, the State Government may provide weightage as incentive and nothing more; VIII. Therefore, Regulation 9 as per its letter and purport clearly provides only for weightage, and not reservation. The same has been so done, in order to incentivize the candidates to render service in ‘remote’ and ‘difficult’ areas and at the same time, ensure that requirement of ‘inter-se merit’ is not diluted by introduction of a scheme of reservation; 8.6. That Regulation 9 is a ‘complete code’ governing selection to PG Courses. In support of the above, following submissions are made: A. There is no provision in the Indian Medical Council Act, 1956 and MCI Regulations, 2000 stipulating reservation for 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

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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 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 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 being in–service candidates may steal a march over candidates higher in merit; 8.10. That the provisions regarding giving weightage to the in-service candidates by way of incentive marks has been introduced in larger public interest and the same is just, rational and proper and there was no occasion to enlarge the scope and provide for reservation, when the regulation itself does not contemplate any such reservation; 8.11. The State is obliged to adopt a procedure as stipulated by the Central Act and Regulation framed thereunder; 8.12. That when there is categorical expression of weightage, it would automatically exclude reservation in cases of admission to PG Degree courses;

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 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 regulation would undo the regulation itself.

9. In the case of Dinesh Singh Chauhan (supra), the very Regulation 9(IV) and 9(VII) fell for consideration. In the case of Dinesh Singh Chauhan (supra), after considering the decision of this Court in the case of Preeti Srivastava (supra), in para 24, it is held as under: “24. By now, it is well established that Regulation 9 is a self- contained code regarding the procedure to be followed for admissions to medical courses. It is also well established that the State has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to postgraduate medical courses enunciated by the Central legislation and regulations framed thereunder, being a subject falling within Schedule VII List I Entry 66 of the Constitution (see Preeti Srivastava v. State of M.P. [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

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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 respect of postgraduate “degree” courses with which we are presently concerned. This proviso postulates giving weightage of marks to “specified in-service candidates” who have worked in notified remote and/or difficult areas in the State—both for postgraduate “degree” courses as also for postgraduate “diploma” courses. Further, the weightage of marks so allotted is required to be reckoned while preparing the merit list of candidates.

27. Thus understood, the Central enactment and the regulations framed thereunder do not provide for reservation for in-service candidates in postgraduate “degree” courses. As there is no express provision prohibiting reservation to in-service candidates in respect of admission to postgraduate “degree” courses, it was contended that providing for such reservation by the State Government is not impermissible in law. Further, there are precedents of this Court to suggest that such arrangement is permissible as a separate channel of admission for in-service candidates. This argument does not commend to us. In the first place, the decisions pressed into service have considered the provisions regarding admission process governed by the regulations in force at the relevant time. The admission process in the present case is governed by the regulations which have come into force from the academic year 2013-2014. This Regulation is a self-contained code. There is nothing in this Regulation to even remotely indicate that a separate channel for admission to in-service candidates must be provided, at least in respect of postgraduate “degree” courses. In contradistinction, however, 50% seats are earmarked for the postgraduate “diploma” courses for in-service candidates, as is discernible from clause (VII). If the regulation intended a similar separate channel for in-service candidates even in respect of postgraduate “degree” courses, that position would have been made clear in Regulation 9 itself. In absence thereof, it must be presumed that 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 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 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

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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 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 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 substance in the submission of the learned Advocate General for the State of Madhya Pradesh that Assistant Surgeons (i.e. medical graduates entering the State services) are not temperamentally inclined to go to and live in villages so as to make available their services to the rural population; they have a temptation for staying in cities on account of better conditions, better facilities and better quality of life available not only to them but also to their family members as also better educational facilities in elite schools which are to be found only in cities. In-service doctors being told in advance and knowing that by rendering service in rural/tribal areas they can capture better prospects of earning higher professional qualifications, and 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 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 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 remote or difficult areas over a period of time need not be underscored. For, the concentration of doctors is in urban areas and the rural areas are neglected. Large number of posts in public healthcare units in the State are lying vacant and unfilled in spite of sincere effort of the State Government. This problem is faced by all States across India. This Court in Snehelata case (1992) 2 SCC 26 had left it to the authorities to evolve norms regarding giving incentive marks to the 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

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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, who are going to operate upon human beings, it is of utmost importance that the selection should be based on merit. The learned Judges have gone on to observe that no weightage should be given to a candidate for rural service rendered by him so far as admissions to postgraduate courses are concerned (see Dinesh Kumar case (1986) 3 SCC 727, SCC para 12 at p. 741).

2. In our opinion, this observation certainly does not constitute the ratio of the decision. The decision is in no way dependent upon these observations. Moreover, those observations are in connection with all-India selection and do not have equal force when applied to selection from a single State. These observations, however, suggest that the weightage to be given must be the bare minimum required to meet the situation. In these circumstances, we are of the view that the authorities might well consider giving weightage up to a maximum of 5% of marks in favour of 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 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 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 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

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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 has worked for three years and more, the candidate would get a further 15 marks in addition to the marks secured in NEET. 15 marks out of 200 marks in that sense would work out to a weightage of 7.5% only, for having served in notified remote and/ or difficult areas in the State for one year. Had it been a case of giving 10% marks en bloc of the total marks irrespective of the marks obtained by the eligible 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 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 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 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.]

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 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 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 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 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

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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 coordination and determination of standards in institutions for higher education falls within the exclusive domain of the Union (Entry 66 List I), medical education is a subject in the Concurrent List (Entry 25 List III). Though, Entry 25 of List III is subject to Entry 66 of List I, the State is not denuded of its power to legislate on the manner and method of making admission to postgraduate medical courses. (iii) The contentions which have been raised in the present batch of petitions were not addressed before this Court in Dinesh Singh Chauhan (supra). (iv) The judgment in Dinesh Singh Chauhan (supra) does not consider three decisions of the Constitution Bench in R. Chitralekha (supra), Chitra Ghosh (supra) and Modern Dental College & Research 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 candidates in the postgraduate degree/diploma courses?

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4. Whether Regulation 9 of MCI Regulations, 2000, more particularly, Regulation 9(IV) and 9(VII) takes away the power of the States under Entry 25 of List III to provide for a separate source of entry for in-service candidates seeking admission to postgraduate medical courses?

5. Whether Regulation 9 of MCI Regulations, 2000 is understood to not allow for the States to provide for a separate source of entry for 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?

6Copy pinpoint6. 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

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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 harmoniously. Reading in this manner, it would become manifest that when it comes to coordination and laying down of standards in the higher education or research and scientific and technical institutions, power rests with the Union/Parliament to the exclusion of the State Legislatures. However, other facets of education, including technical and medical education, as well as governance of universities is concerned, even State Legislatures are given power by virtue of Entry 25. The field covered by List III Entry 25 is wide enough and as circumscribed to the limited extent of it being subject to List I Entries 63, 64, 65 and 66.

102. Most educational activities, including admissions, have two aspects: the first deals with the adoption and setting up the minimum standards of education. The objective in prescribing minimum standards is to provide a benchmark of the calibre and quality of education being imparted by various educational institutions in the entire country. Additionally, the coordination of the standards of education determined nationwide is ancillary to the very determination of standards. Realising the vast diversity of the nation wherein levels of education fluctuated from lack of even basic primary education, to institutions of high excellence, it was thought desirable to determine and prescribe basic minimum standards of education at various levels, particularly at the level of research institutions, higher education and technical education institutions. As such, while balancing the needs of States to impart education as per the needs and requirements of local and regional levels, it was essential to lay down a uniform minimum standard for the nation. Consequently, the Constitution- 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

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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 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 the Central legislation under Entry 25, it would be void and

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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

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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

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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 in relation to “education, including technical education, medical education and universities” is analogous to that of the Union. However, such power is subject to Entries 63, 64, 65 and 66 of the Union List, as laid down in Entry 25 of the Concurrent List. It is the responsibility of the Central Government to determine the standards of higher education and the same should not be lowered at the hands of any particular State. xxx xxx xxx xxx

147. Another argument that has been put forth is that the power to enact laws laying down process of admission in universities, etc. vests in both Central and State Governments 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

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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

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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 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 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 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

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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 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 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 merit list in “National Eligibility-cum-Entrance Test” for postgraduate courses: Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to postgraduate courses, the Central Government in consultation with 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

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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 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 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.

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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 which grants admission to any student after the last date specified for the same shall also be liable to face such action as may be prescribed by MCI including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year.” 11.2 Regulations, 2000 are framed by the MCI in exercise of its powers conferred under Section 33 of the Indian Medical Council Act,

1956. The Indian Medical Council Act, 1956 has been enacted/passed by the Union in exercise of powers conferred under Entry 66, List I. 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

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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, which includes even medical education as well as universities, that is prescribed in List III, Entry 25. 11.3 If one considers the Statement of Objects and Reasons of the Indian Medical Council Act, 1956, it cannot be said that the Medical Council of India would have any authority or jurisdiction to frame any regulations with respect to reservation and/or making special provision like providing for a separate source of entry for 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;

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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 to be given in applications for registration under this Act; (h) the fees to be paid on applications and appeals under this Act; (i) the appointment, powers, duties and procedure of medical inspectors and visitors; (j) the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions for grant of recognised medical qualifications; (k) the standards of staff, equipment, accommodation, training and other facilities for medical education; (l) the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations; (m) the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners; and (ma) the modalities for conducting screening tests under 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

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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 not confer any authority and/or power to the MCI to frame the regulations with respect to reservation in the medical courses, more particularly, to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses, as sought to be contended on behalf of the MCI and counsel opposing for providing for a separate source of entry for 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 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 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

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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 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 becomes the substantive provision and is more concerned with the marks to be allocated which is the concern of Regulation 9(III). It is also required to be noted that even this proviso confers a discretion on the State to provide for weightage in marks for the services rendered in remote or difficult areas. The proviso only enables the States by conferring the discretion for weightage. The proviso has nothing to do with the reservation in the postgraduate degree courses and therefore it shall not negate the State’s power to make reservation and/or make special provision to provide for a separate source of entry for 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 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

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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 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 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

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 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 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

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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 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 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 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 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 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

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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 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 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 required for the in-service candidates, having regard to the then prevailing situation and that the percentage of fifty per cent shall, if found appropriate, be reduced.

10. The stipulations governing the selection for admissions in these cases have got to be viewed and construed in the above backdrop of events and legal position. The learned Single Judge, in our view, was certainly not right in equating the provisions made for allocation of seats in the form of fixation of quota in this case with the usual form of communal reservations and allowing himself to be carried away by the peculiar method of working out such reservations in order to ensure adequate representation to such candidates, and applying those principles to construe a provision of the nature involved in these cases. Yet another error in the reasoning of the learned Single Judge lies in his assumption that “open quota” seats have to be thrown open to all and are meant only to be filled up purely on the basis of merit performance and no one from even the class of candidates in whose favour a special quota has already been provided can be excluded from consideration as against the “open quota”. This reasoning of the learned Single Judge not only ignores the object and scheme underlying the allocation of seats for admissions for 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 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 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 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

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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 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 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 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 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 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 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 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 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

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