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

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 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 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 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 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 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 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

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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 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 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 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 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 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

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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 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 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 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.”

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 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, 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 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 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 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

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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 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 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 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 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 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 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 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 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

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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 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 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 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 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, 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 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 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 H

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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 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 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 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 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 H

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 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 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 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 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

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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 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, 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 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 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 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 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

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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 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 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 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 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 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 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 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 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 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 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

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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 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 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 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 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

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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 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 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 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 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 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 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 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 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.

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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 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 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:-

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. H

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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 candidates shall be admitted to Postgraduate Courses from the said merit lists only. Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive upto 10% of the marks obtained for each year of service in remote and/or difficult areas or Rural areas upto maximum of 30% of the marks obtained in National Eligibility- cum Entrance Test. The remote and/or difficult areas or Rural areas shall be as notified by State Government/Competent 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 shall be at 45th percentile for General Category and 40th percentile for SC/ST/OBC. (6) No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub-Clause (3) above shall be admitted to any Postgraduate courses in the said academic year.

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

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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 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 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 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.

7Copy pinpoint7. 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 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 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

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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 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 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.

8Copy pinpoint8. Reservation for in-service candidates in postgraduate medical 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

9Copy pinpoint9. 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.

10Copy pinpoint10. 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

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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.

11Copy pinpoint11. 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.]

12Copy pinpoint12. 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

13Copy pinpoint13. 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

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A in remote and/or in difficult areas or rural areas as defined by the State Government or the competent authorities.

14Copy pinpoint14. 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 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 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 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 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 up to the maximum of 30% marks obtained in National Eligibility- cum-Entrance Test.”

15Copy pinpoint15. 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 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 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 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 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 categories as per applicable laws prevailing in States/Union Territories. The reservation referred to in the opening part of this clause is, obviously, with reference to reservation as per the constitutional scheme (for the Scheduled Caste, the Scheduled Tribe or the Other Backward Class candidates); and not for the in-service candidates or medical officers in service. It further stipulates that all-India merit list as well as 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

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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 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 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 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 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.”

16Copy pinpoint16. 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 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 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

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A SCC 353] had not been considered in the case of Dinesh Singh Chauhan (supra).

17Copy pinpoint17. 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 the three Constitution Bench decisions we have referred to above. As far as Modern Dental (supra) is concerned, perhaps the judgment had not been published by the time the judgment in Dinesh Singh Chauhan (supra) was rendered.

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

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

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 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.”

18Copy pinpoint18. It is in this perspective the said writ petition has been referred 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 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 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 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 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

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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 prescribe qualifications for admission to colleges so long as its action does not contravene any other law.”

19Copy pinpoint19. 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 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 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 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

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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 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 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 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 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, 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 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 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 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, 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 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 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

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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 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 its entire power to legislate in relation to “education” and organising its own common entrance examination.”

20Copy pinpoint20. 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 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 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

21Copy pinpoint21. 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

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