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

A “25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.” Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows: B “66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to C Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.”

22Copy pinpoint22. On the aspect of laying down norms for admission, it was held in the case of Dr. Preeti Srivastava (supra):

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

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 713 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

the postgraduate medical courses, lay down qualifications in A addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. B Some of these are: (1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; C (3) the student-teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; D (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.”

23Copy pinpoint23. From a composite reading of these authorities, the position of law as emerges, is that all aspects of admission cannot be said to be covered by Entry 66 of the Union List, even if the entire admission process is incorporated in a single code. Certain aspects of admission stipulated by the State may trespass into legislative zone of “coordination and determination of standards.” One illustration of such potential trespass would be lowering the eligibility criteria for admission fixed by a Union legislation, the 2000 Regulations in this case. In such a situation, the State would be encroaching upon exclusive field of the G Union. The case of Preeti Srivastava (supra) was decided broadly on this rationale. But there can be Rules on facets of admission process in institutions of higher education framed by the State legislature which would not have impact on the subjects enumerated against Entry 66 of the Union List, and thus would not result in conflict with the latter. While analysing the State’s power to legislate under Entry 11 of List II of the H

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A Seventh schedule of the Constitution, as it originally existed, it has been observed in the case of Modern Dental College (supra) that “…except the determination of minimum standards and coordination which was in the national interest..”, the State had power to legislate with respect to all other aspects of education. Now that the subjects of erstwhile Entry 11 of List II find their way in the Concurrent List, B the State’s power is further subject to any statutory instrument owing its origin to any Union legislation, even if such statutory instrument is not enacted on the basis of exclusive power of the Union contained in Entry 66 of List I. In that context, we would have to examine as to whether these facets of admission to the postgraduate medical degree C course from a separate entry channel comprising of in-service doctors stand already covered or occupied by the statutory instrument in the form of 2000 Regulations owing its origin to a Union legislation comes within the ambit of Entry 66 of List-I. If not, the subject-entry would be in the concurrent list and it would be permissible for the States to lay down their own norms, which are not covered by any Union D legislations. In the case of Modern Dental College (supra), this was the judicial approach of the Constitution Bench. We find support for taking this view from the case of R. Chitralekha (supra) also. In the latter authority, of course, the competing entries were in List I and List II of the Seventh Schedule of the Constitution and the dispute was on methodology of marking in the selection process as also reservation for E Backward Classes and Scheduled Castes. In R. Chitralekha (supra), this Court, in substance took the view that the subject heads of Entry 66 of List I did not encompass every aspect of admission process in higher educational institutions and opined that State legislative competence stood retained to deal with certain features connected with F the admission process also, unless the State’s action in that regard directly encroached upon the subjects comprised within the Union List. There can thus be certain features of the admission procedure over which the State can also have power to make stipulations. In a more recent case, Yatinkumar Jasubhai Patel and Others vs. State of Gujarat and Ors. [(2019) 10 SCC 1], a Bench comprising of three G Judges examined a similar question involving interpretation of Gujarat University Act, 1949. In consideration of this Court was Rules framed by the Gujarat University for the purpose of governing admission to postgraduate course. So far as seats of the State List are concerned, these were made available for the candidates of Gujarat University. Such “institutional preference” was held to be permissible by this Court. H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 715 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

This Court observed, inter-alia, in this judgment:- A “9.5. Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of NEET examination results. Under the circumstances, introduction of the NEET scheme, as such, has nothing to do with the “institutional B preference.....”

24Copy pinpoint24. The third authority referred to by the three Hon’ble Judges of this Court while referring the Writ Petition of Tamil Nadu Medical Officers Association & Ors., in pursuance of which these matters have been placed before us on reference, is the decision of another C Constitution Bench of this Court, the case of Kumari Chitra Ghosh & Anr.(supra). The dispute in this case was over reservations made in respect of certain categories of students for admission to the MBBS course in a medical college under the Delhi University. 25 per cent of the seats (excluding the seats reserved for Government of India nominees) were reserved for girl students. There was, however, eight D stipulated categories of students who were eligible for admission. These categories included being residents of Delhi, wards of central government servants posted in Delhi, cultural scholars etc.

25Copy pinpoint25. The minimum percentage of marks which a candidate seeking admission was to obtain in the aggregate of compulsory subject was E

55. The appellants obtained 62.5% marks and were domiciled in Delhi. But they could not obtain admission because of admission given to certain students nominated by the Central Government who got marks lower to what they had obtained. They approached the Delhi High Court questioning the power of the Central Government to make nomination, but their petitions were dismissed. F The appeal before this Court was by certificate.

26Copy pinpoint26. It was held in this judgment, on the aspect of classification of that category of students:- “8. As laid down in Shri Ram Krishna Dalmia v. Shri justice S.R. G Tendolkar & Others, Article 14 forbids class legislation; it does not forbid reasonable classification. In order to pass the test of permissible classification two conditions must be fulfilled- (i) that the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) differentia must have a rational H

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A relation to the object sought to be achieved. The first group of persons for whom seats have been reserved are the sons and daughters of residents of Union Territories other than Delhi. These areas are well known to be comparatively backward and with the exception of Himachal Pradesh they do not have any Medical College of their own. It was necessary that persons desirous of receiving medical education from these areas should be provided some facility for doing so. As regards the sons and daughters of Central Government servants posted in Indian Missions abroad it is equally well known that due to exigencies of their service these persons are faced with lot of difficulties in the matter of education. Apart from the problems of language, it is not easy or always possible to get admission into institutions imparting medical education in foreign countries. The Cultural, Colombo Plan and Thailand scholars are given admission in medical institutions in this country by reason of reciprocal arrangements of educational and cultural nature. Regarding D Jammu and Kashmir Scholars it must be remembered that the problems relating to them are of a peculiar nature and there do not exist adequate arrangements for medical education in the State itself for its residents. The classification in all these cases is based on intelligible differentia which distinguished them from the group to which the appellants belong. E

9. It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification.” This judgment was founded on the principle of reasonable classification and has been subsequently followed in other cases as well where certain categories of candidates have been given benefits in the admission process based on certain specified criteria.

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 717 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

27Copy pinpoint27. The issue to be addressed now is as to whether Clause 9 of the 2000 Regulations is relatable to Entry 66 of List I of Seventh Schedule of the Constitution or as to whether the source of power to make such Regulation, particularly in relation to providing a separate entry channel for in-service candidates come under Entry 25 of the Concurrent List. In the event we find that the entry relates to the Concurrent List, in such a situation also we shall have to examine if the field for formulating admission quota for in-service doctors stands entirely occupied by the aforesaid MCI Regulations or not. For this exercise, however, we shall have to analyse the different provisions of Clause 9 of the 2000 Regulations.

28Copy pinpoint28. Before we embark on such analysis, we shall deal with two other aspects of dispute having Constitutional import involved in this reference. First, we would test the nature or character of the State quota, which we have so far referred to as reservation. Clause 9 (4) or Clause 9 (IV) as it stood prior to 5 th April 2018 of the 2000 Regulations permit reservation as per the applicable laws of the State D or the Union Territory. In the case of Dinesh Singh Chauhan (supra), the three Judge Bench of this Court opined that the reservation referred to in the opening part of the said clause is akin to reservation as per constitutional scheme and does not embrace reservation for in-service candidates. We have quoted paragraph 25.4 of the report in which such view has been expressed. We are in agreement with the opinion E expressed in the case of Dinesh Singh Chauhan on this construction of Clause 9 (4) of the 2000 Regulations. In a series of judgments including the cases of D.N. Chanchala vs. The State of Mysore and Others [(1971) 2 SCC 293], K. Duraiswami & Anr. vs. State of Tamil Nadu & Ors. [(2001) 2 SCC 538], AIIMS Students Union vs. AIIMS and Others [(2002) 1 SCC 428] as also State of M.P.& F Ors vs. Gopal D. Tirthani & Ors. [(2003) 7 SCC 83], it has been held that allocation of seats for in-service candidates is only a separate or exclusive channel of entry or source of admission and such entry- path cannot be equated with reservation provisions incorporated as compensatory discrimination. But classifying a category of candidates G for such distinct or separate channel has been upheld consistently, provided such categorisation is based on intelligible differentia. In fact, on the question of such entry channel being based on reasonable classification, it has been held in the case of Gopal D. Tirthani (supra):- H

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A “21. To withstand the test of reasonable classification within the meaning of Article 14 of the Constitution, it is well settled that the classification must satisfy the twin tests: (i) it must be founded on an intelligible differentia which distinguishes persons or things placed in a group from those left out or placed not in the group, and (ii) the differentia must have a rational relation with the 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) need to be strengthened. 229 community health centres (CHCs) 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 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 classification and the object sought to be achieved.” H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 719 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

29Copy pinpoint29. The same view stands consistently reflected in a large body authorities, including the cases of Dr. Snehalata Patnaik & Ors vs. State of Orissa & Ors [(1992) 2 SCC 26], Pre PG Medical Sangharsh Committee & Anr. vs. Dr. Bajrang Soni & Ors. [(2001) 8 SCC 694], and the case of AIIMS Students Union (supra). In the case of Satyabrata Sahoo & Ors. vs State of Orissa & Ors. [(2012) 8 SCC 203] also, there were two entry channels, one for in-service candidates and the other for open-category candidates. Provisions for these two entry paths were not under challenge in that case. The constitutionality of institutional preference in postgraduate courses in favour of in-house candidates was found to be valid, on the basis of reasonable classification in the case of AIIMS (supra). The case of C Yatin Kumar Jasubhai Patel & Ors. (supra) also is based on similar reasoning. In order to justify the retention of such source of entry into postgraduate medical degree courses, it was argued on behalf of the State of Tamil Nadu and State of West Bengal by Mr. Vaidyanathan and Mr. Giri, for the former and Mr. Rakesh Dwivedi, learned Senior Advocate for the latter that such reservation was necessary for proper D functioning of the public health system as the respective States have shortage of specialised better qualified doctors to serve the remote areas. This stand has been supported by Mr. P.V. Surendranath, learned Senior Advocate appearing for the West Bengal University of Health Sciences. The same stand has been taken by Mr. Jaideep Gupta, learned Senior Advocate for the State of Kerala and Mr. Rahul Chitnis, learned E Advocate for the State of Maharashtra. The theme of argument on behalf of the in-service doctors has been that they have to discharge arduous duties serving a large number of patients across the respective States and it is always not possible for them to academically update to meet the theoretical standards set by the MCI for the entrance examination. Mr. Sanjay Hegde and Mr. Vijay Hansaria, learned Senior Advocates have appeared before us for the petitioners in W.P. (C)No. 252 of 2018, W.P.(C) No. 293 of 2018 and W.P.(C)No.295 of 2018. Learned Senior Advocates for these petitioners as also the appellant in-service doctors in the appeals arising out of the judgment of the High Court of Calcutta have sought to justify their defence on the same grounds. On the aspect of legislative competence, the rival arguments have already been dealt with in our discussions earlier in this judgment. We are satisfied that the doctors in employment of the States and allied sectors form a separate and distinct class and for the purpose of admission in postgraduate degree courses they can be given certain H

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A elements of preference. Holding them to be a distinct group fits in with overall objective of having medical professionals with superior qualification for tending to the needs of the general public. Moreover, the 2000 Regulations by permitting award of incentive marks to them and also providing for 50 per cent reservation in diploma courses indirectly recognise this category of doctors as a separate class. But B do the provisions of 2000 Regulations permit the States to provide quota for such in-service candidates?

30Copy pinpoint30. In the case of Modern Dental College (supra), it has been explained the manner in which Entry 66 of List I ought to be interpreted while dealing with admission to postgraduate medical admission course. C It has been held in this judgment that the said entry in List I is having a very specific and limited scope. It has also been held in the said decision that while setting standards in educational institutions for higher studies would be in the exclusive domain of the Union, that might not include conducting of examination etc. Regulating medical education would come within Entry 25 of the List III giving concurrent powers to both Union as well as States. In the case of Modern Dental College (supra), the rules for admission into medical postgraduate courses framed by the State government were assailed.

31Copy pinpoint31. Referring to the judgment of this Court in the case of Preeti Srivastava (supra), the Constitution Bench did not find any ground for holding that the said judgment excluded the role of States altogether from admissions.

32Copy pinpoint32. Now, turning to the context in which we are adjudicating the present set of proceedings, we have to ascertain as to whether setting apart specified percentage of seats for in-service doctors in postgraduate medical degree courses is referable to matters of admissions or standards of education. It has been acknowledged in the decision of Modern Dental College (supra) that there may be certain overlapping of subjects vis-à-vis Entry 66, List I and Entry 25, List III to the Seventh Schedule of the Constitution of India. In our opinion, the question of providing a separate entry-path to in-service doctors may have some effect on overall standard of medical education at the postgraduate degree level institutions, as the students who would gain admission to such courses may not come purely on the basis of a uniform order of merit. But that is not the manner in which we ought to interpret the expression “standards” in institutions of higher education. The H Constitution Bench judgment in the case of Modern Dental College

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 721 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

(supra) has construed the words “coordination and determination of standards” to mean laying down the standards of education. Analysis of Clause 9 of the 2000 Regulations reveals that the said clause provides a minimum entry standard in the form of clearance of the NEET on obtaining minimum of marks of 50 per cent by general category candidates. Once these standards are laid down, we are of the view that if the State authorities provide an independent channel of entry for in-service doctors in postgraduate medical degree courses, who fulfil the aforesaid minimum standards, as the latter expression has been construed in the case of Modern Dental College (supra), provisions to that effect would not be in breach of the constitutional scheme. The impact on the “standards”, as the expression is to be construed in Entry C 66 of the first list, would be far too distant from admission norms framed by the State authorities for such in-service doctors. The separate entry- channel for in-service doctors would be integral to the admission norms, relatable to the Entry 25 of the Concurrent List. Such admission norms if compatible with minimum standards laid down by the MCI, would fall under the items specified against the aforesaid entry of List III. D

33Copy pinpoint33. The question that arises next is whether Clause 9 of the 2000 Regulations lay down the procedure for admission in such a manner that providing a separate entry channel for in-service doctors even through the State merit list by an independent statutory instrument would be contrary to the provisions of the 2000 Regulations or not. If that is the case, then the respective State legislations and Regulations would fall foul of Article 246 and Article 254 of the Constitution of India. We reproduce below the text of Articles 246 and 254 of the Constitution of India:- “Article 246- Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”) G

(2) Notwithstanding anything in clause (3), Parliament and, subject to Clause (1), the legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”). H

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A (3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”). B (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List. Article 254- Inconsistency between laws made by Parliament and laws made by the Legislatures of States- (1) If any provision C of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by D Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament form enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

34Copy pinpoint34. It has been argued on behalf of the Union of India by Mr. Aman Lekhi, learned Additional Solicitor General of India and by Mr. Vikas Singh, learned Senior Advocate appearing for the MCI that the said Clause 9 is a self-contained code and there is an implied bar upon permitting a separate source of entry for in-service doctors. Clause 9(4) of the 2000 Regulations makes provisions for reservation of seats H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 723 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

in postgraduate courses, not making any distinction between degree and diploma courses. In Clause 9(8) thereof, or in Clause 9(VII) in its earlier form, reservation of 50 per cent seats in diploma courses has been prescribed. Main stand of the MCI is that the degree course is a full- fledged three years course and clinical subjects in such course is one of the most sought after by the students. It is MCI’s case that postgraduate degrees enable the students to pursue super speciality courses later on as well as become teachers in medical institutes. The PG diploma course, on the other hand, according to the MCI, is of greater practical value for treating patients in remote and difficult or rural areas of the country. The MCI, according to Mr. Singh has sought to strike a balance between competing interest of in-service candidates and direct candidates as also interest of the States in ensuring quality medical treatment to remote areas, while not compromising on merit. This stand has been supported by Mr. Nidhesh Gupta, learned Senior Advocate representing private respondents from open- category appearing in the appeals arising out of the judgment of the Calcutta High Court. The disadvantages spelt out by the in-service doctors is of being out of touch with academic developments because of their pressing duties often in remote locations. These disadvantages were considered by this Court in the case of AIIMS (supra), and it was recorded in that judgment, in reference to the case of K. Duraiswamy (supra) in paragraph 31 of the report:- E “Some of them had done graduation sometime in the past and were either picked up in the government service or had sought for joining government service because, may be, they could not get a seat in postgraduation and thereby continue their studies because of shortage of seats in higher level of studies. On account of their having remained occupied with their service 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 H

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A thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. The object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to provide protection and encouragement to one at the entry level.”

35Copy pinpoint35. According to Mr. Singh, these drawbacks being faced by in-service doctors can be overcome by awarding incentive marks contemplated in proviso to sub-clause (4) of Clause 9. Even if we proceed on the basis that Clause 9 is a self-contained code, as held in the case of Sudhir N. (supra), such interpretation having been approved in the case of Dinesh Singh Chauhan (supra), in our view a self- C contained code can cover only those subjects which are contained in such code. This is not an exhaustive code covering every feature of admission to postgraduate degree courses in medical education. If the code does not refer to certain matters, which do not have impact on or dilute the main subject for which the code is made, appropriate authorities are not enjoined from making provisions for such uncovered areas. This we hold because the field of legislation involved in the subject-dispute is a shared field between the Union and the States. The legislative disability of the States would occur only when the Union legislation covers the same subject on which State undertakes legislative exercise and the State legislative instrument is found to be repugnant to the latter. There also can be vacant legislative zones within a code, and such vacant zones can be filled up by the appropriate legislature. We have already referred to the provisions contained in the code pertaining to the admission process. Clause 9(4)(or Clause 9(IV) in its earlier form) of the 2000 Regulations further stipulates that candidates shall be admitted to post-graduate courses from the two merit lists only, as referred to in the said clause. On behalf of the writ petitioners who had instituted proceedings in the High Court at Calcutta, it was submitted that if a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all as held in Nazir Ahmed vs. King Emperor AIR 1936 PC 253. Certain other authorities reiterating the same dictum have been cited. This principle, however, has become so well-established in our jurisprudence that we do not consider it necessary to specifically refer to those authorities in this judgment. But having regard to Clause 9(4) of the 2000 Regulations, we do not think provision for reservation of in-service doctors by the State from the State-wise merit list published in pursuance of that provision would result in deviation from a mandatory statutory scheme. The aforesaid sub-

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 725 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

clause is required to be construed in the light of the State’s power to make provisions over the admission norms, provided the candidates fulfil the basic admission criteria contained in the 2000 Regulations. Having regard to the legal and factual context of this case and considering the fact that the issue of legislative competence arises in respect of an entry belonging to shared, and not exclusive field of legislations, in our opinion the said sub-clause cannot be interpreted to mean that the State is denuded of the power to make a separate channel of admission to the said courses for in-service doctors from the State merit list. This is an issue of legislative competence and the Nazir Ahmed dictum does not come into conflict with the interpretation we are giving to this clause. Application of that principle solely on the basis of a Union legislation, without examining the scope of the State’s legislative power in the given context, would be contrary to the constitutional scheme in having concurrent field of legislation. The said sub-clause does not prescribe specific bar on the State authorities in providing for such reservation or such separate entry-channel. The principle of implied exclusion also would not apply here in our opinion. The principle of implied exclusion is derived from the latin dictum “expressio unius est exclusio alterius”. There are authorities, which caution the Courts against indiscriminate application of this doctrine, describing it to be a “dangerous master” (Mary Angel and Ors. vs. State of Tamil Nadu (1999) 5 SCC 209, State of Karnataka vs. Union of India & Anr. (1977) 4 SCC 608, and Assistant Collector of Central Excise vs. National E Tobacco of India Ltd. (1972) 2 SCC 560).

36Copy pinpoint36. When a subject falls in a shared field of legislation, there may be cases where the dominant legislative body may not have had made provisions in a legislative instrument for which it had power to do so. But in such a situation the dominant legislative body cannot prevent the secondary legislative body from making provisions in that regard. We would make it clear here that we are using the terms “dominant legislative body” to describe the Union legislature and “secondary legislative body” to refer to the State legislature in the context of the concurrent list only. We are doing so because in case of repugnancy between two legislative instruments originating from the Union and the State legislatures in relation to any entry therein, the former is to prevail as per the constitutional scheme. Turning back to the aspect of occupied field, if certain areas of legislative entry is left void by the Union Legislature, these void areas would come within the legislative power of the secondary legislative body as the constitutional entry gives both H

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A the legislative bodies co-existing, power to legislate on such subjects. Clause 9 of the 2000 Regulations is no doubt a self-contained code. But as we have already observed, it is not an exhaustive code covering all aspects of admission in postgraduate medical degree courses. The scope of this code and extent of its operation has been explained by this Court in the case of Yatinkumar Jasubhai Patel & Ors. (supra). B Negation of power of the State cannot be a matter of inference, or such negation cannot be in anticipation that the Union Legislature may make provisions in future in the vacant legislative space. The authorities in support of this proposition are West U.P. Sugar Mills Association & Ors vs. State of Uttar Pradesh & Ors. (2020 SCC Online SC C 380), U.P. Cooperative Cane Unions Federations vs. West U.P. Sugar Mills Association & Ors. [(2004) 5 SCC 430], S.R. Bommai & Ors. vs. Union of India & Ors.[(1994) 3 SCC 1] and Tika Ramji & Ors.etc vs. State of U.P.& Ors (AIR 1956 SC 676). Only in cases where the State legislature makes a law repugnant to any provision of law made by the Parliament, the Parliamentary law would prevail. We D do not find the 2000 Regulations so overwhelming in its scope and extent that we can proceed on the presumption that the entire field of admission to postgraduate medical course stands covered by it. In the facts of the given case, we do not think we can proceed on the basis of there being implied repugnancy. Such repugnancy has to be direct and positive.

37Copy pinpoint37. Is there any vacant space for State to prescribe a separate entry-channel for in-service doctors, having regard to the admission process laid down in the 2000 Regulations? In the case of Modern Dental College (supra), it has been observed, referring to the earlier Entry 11 of List II, that the States had exclusive power to legislate with respect to all aspects of education barring determination of standards and coordination by the Parliament. In the case of Preeti Srivastava (supra), legislative competence of the State making admission rules not inconsistent with the standards set down by the Union Legislature has been acknowledged. It has been observed in the judgment of Modern Dental College (supra) that except the determination of minimum standards and coordination, State’s power in regulating medical education was preserved. When the said entry (i.e. Entry 11 of List II) was brought to the Concurrent List by 42nd Amendment to the Constitution of India, the form of State’s power remained the same, provided of course there was no repugnancy of a State statutory instrument with any Union legislative provisions covering the same subject. H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 727 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

38Copy pinpoint38. We are of the opinion that the admission process stipulating A a distinct source of entry for in-service candidates by itself would not constitute breach of the provisions of Clause 9 of the 2000 Regulations, provided that the minimum standards mandated by the said Regulations for being eligible to pursue postgraduate medical degree course are adhered to. A separate source of entry for in-service doctors through the State merit list in our view would come within the legislative power and competence of the State. We also take note of the fact that reservation for in-service doctors has been a long standing practise and the rationale behind such reservation appears to be reasonable to us. But we refrain from dilating on the necessity of maintaining such practise as in this judgment, we are primarily concerned with the question of competence of State authorities in making Rules providing for such reservation.

39Copy pinpoint39. Clause 9(4) of the 2000 Regulations stipulates entry into the postgraduate courses from the two merit lists, one all India and the other that of the State. The same was the scheme of Clause 9(IV) in its erstwhile form. The dispute in these proceedings, however, is mainly on admission norms to postgraduate degree courses. If the State authorities provide reservation for in-service doctors from within the State’s own merit list, our view is that such an exercise would be relatable to the admission process and the same would not be in breach of any prohibition flowing from the 2000 Regulations. This would entail some form of variation of the merit list of the State, but we do not find any prohibition under the 2000 Regulations against a State undertaking that exercise. Such step undertaken by the State would be relatable to the State’s legislative power derived from Entry 25 of the Concurrent List and not covered by the 2000 Regulations. We do not find any repugnancy with the 2000 Regulations if the State authorities create such a distinct channel of entry.

40Copy pinpoint40. In the case of Gopal D. Tirthani (supra), there was reservation for in-service candidates. This was found to be a separate and exclusive channel of entry or source of admission. As we have already observed, having a separate entry-channel for in-service candidates to postgraduate medical courses has been a long standing practise. The Bench of three Hon’ble Judges of this Court in the case of Dinesh Singh Chauhan (supra) sought to distinguish this factor on the ground that the provisions of Clause 9, which was applicable at that time the case of Gopal D. Tirthani (supra) was decided, was different H

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A from its form as it subsisted when the former case was decided. But the relevant clause, as reproduced in the judgment of Gopal D. Tirthani (supra) did not contain any provision for separate entry route for in-service candidates. Paragraph 6 of the said judgment [reported in (2003) 7 SCC 83] reproduces Clause 9(1) as it prevailed then. We are quoting below the said paragraph:- B “6. Regulation 9 of the Regulations framed by the Medical Council of India reads as follows:- “9. Selection of postgraduate students-(1) Students for postgraduate medical courses shall be selected strictly on the basis of their academic merit. For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses: (i) on the basis of merit as determined by a competitive test conducted by the State Government or by the competitive authority appointed by the State Government or by the university/group of universities in the same State; (ii) on the basis of merit as determined by centralized test held at the national level; or (iii) on the basis of the individual cumulative performance at the first, second and third MBBS examinations, if such examinations have been passed from the same university; or F (iv) combination of (i) and (iii) Provided that whatever entrance test for postgraduate admissions is held by a State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be fifty per cent for all the candidates: Provided further that in non-governmental institutions fifty per cent of the total seats shall be filled by the competent authority and the remaining fifty per cent by the management of the institution on the basis of merit.”

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 729 UNION OF INDIA & OTHERS [ANIRUDDHA BOSE, J.]

41Copy pinpoint41. The selection criteria as contained in Clause 9 of the 2000 A Regulations, which was considered by this Court in the case of Gopal D. Tirthani (supra) and the content of Clause 9, which is the subject of dispute in the present set of proceedings are no doubt not identical. But the said clause which was examined in the case of Gopal D. Tirthani (supra) had a merit based approach. Reservation of in-service B candidates was made through Executive Orders of the State Government. We are not to undertake a word to word comparison of Clause 9 as it prevailed at different points of time. What matters here is that in its original or earlier version, no provision for reservation or separate entry-channel for in-service doctors has been shown to us by any of the learned counsel appearing for the parties. The State C Government Orders laid down such distinct source of entry. Interpretation of the same clause in its present form should also be based on the same underlying reasoning.

42Copy pinpoint42. Because of these reasons, we hold that there is no bar in Clause 9 of the Postgraduate Medical Education Regulations, 2000 as it prevailed on 15th February 2012 and subsequently amended on 5th April, 2018 on individual States in providing for reservation of in-service doctors for admission into postgraduate medical degree courses. But to take benefit of such separate entry channel, the aspiring in-service doctors must clear the NEET Examination with the minimum prescribed marks as stipulated in the 2000 Regulations. We respectfully differ from the views expressed by the Bench of three Hon’ble Judges of this Court in the case of the State of Uttar Pradesh & Ors. vs. Dinesh Singh Chauhan [(2016) 9 SCC 749] to the extent it has been held in the said decision that reservation for the said category of in-service doctors by the State would be contrary to the provisions of 2000 Regulations. In F our opinion, that is not the correct view under the Constitution. The reference is answered accordingly.

43Copy pinpoint43. We also expect that the statutory instruments of the respective State Governments providing for such separate channel of entry should make a minimum service in rural or remote or difficult areas for a G specified period mandatory before a candidate could seek admission through such separate channel and also subsequent to obtaining the degree. On completion of the course, to ensure the successful candidates serve in such areas, the State shall formulate a policy of making the in-service doctors who obtain entry in postgraduate medical H

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A degree courses through independent in-service channel execute bonds for such sum the respective States may consider fit and proper.

44Copy pinpoint44. So far as the appeals against the judgment of the Calcutta High Court are concerned, we are of the opinion that the judgment and order of the High Court at Calcutta in MAT No.1222 of 2019 (Dr. Md. B Babul Akhtar and Ors. vs. Dr. Md. Nazir Hossain & Ors.) along with the allied appeals were not founded on proper interpretation of law for the reasons we have already discussed. We accordingly set aside the judgment under appeal, delivered on 1st October, 2019. All the appeals are accordingly allowed. The memorandum dated 18th April, 2013 is restored and the writ petition filed in the High Court at Calcutta C (W.P. No.8990(W) of 2019) shall stand dismissed. The writ petitions filed before this Court being W.P.(Civil) No. 196 of 2018, W.P. (C) No.252 of 2018, W.P.(C) No. 295 of 2018 and W.P.(C) No. 293 of 2018 shall stand allowed in the above terms.

45Copy pinpoint45. We, however, direct that the doctors who are already undergoing the postgraduate degree courses on the basis of being successful in the original writ petition filed in the High Court at Calcutta shall not be disturbed from pursuing the said course. The same direction shall also cover successful medical students who have already undertaken admission in postgraduate medical degree courses following the applicable admission process and are pursuing their postgraduate studies in the States of Gujarat, Haryana, Kerala, Maharashtra and Tamil Nadu.

46Copy pinpoint46. All connected applications shall stand disposed of. Interim orders, if any shall stand dissolved.

47Copy pinpoint47. There shall be no order as to costs.

Kalpana K. Tripathy Matters disposed of.