- DR. PREETI SRIVASTAVA AND ANR. ETC. ETC. v. THE ST A TE OF MAD HY A PRADESH AND ORS.

In the premises, we agree with the reasoning and conclusion in Dr. ... Sadhna Devi and Ors. v. State of UP. and Ors., (supra) and we overrule the reasoning and conclusions in Ajay Kumar Singh and Ors. v. State of Bihar and Ors., (supra) and Post Graduate Institute of Medical Education & ...,..:;. Research, Chandigarh and Ors. v. K.L. Narasimhan and Anr.. (supra). To conclude: D I. We have not examined the question whether reservations are pennissible at the post-graduate level of medical education;

2Copy pinpoint2. A common entrance examination envisaged under the Regulations framed by the Medical Council of India for post-graduate medical education requires fixing of minimum qualifying marks for passing E the examination since it is not a mere screening test.

3Copy pinpoint3. Whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the post-graduate level of medical education is a question which must be decided by the Medical Council of India since it affects standards of .post- F graduate medical education. Even if minimum qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the general category candidates at this level. The G percentage of 20% for the reserved category and 45% for the general category is not permissible under Article 15(4), the same being unreasonable at the post-graduate level and contrary to public interest.

4Copy pinpoint4. At the level of admission to the super speciality courses, no H special provisions are permissible, they being contrary to national

- DR. PREETI SRIVASTAVA v. STATE fSUJATA V. MANOHAR, J.) 287

interest. Merit alone can be the basis of selection.

In the premises, the impugned Uttar Pradesh Post Graduate Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and other A

Backward Classes) Act, 1997 and G.O. dated 7.6.1997 of the State of Madhya Pradesh are set aside. However, students who have already taken admission and are pursuing courses of post-graduate medical study under the impugned B Act/G.O. will not be affected. Our judgment will have prospective application. Further, pending consideration of this question by the Medical Council of

- India, the two States may follow the norms laid down by the Medical Council of India for lowering of marks for admission to the under-graduate M.B.B.S. medical courses, at the post-graduate level also as a temporary measure until the norms are laid down. This, however, will not be treated as our having held c that such lowering of marks will not lead to a lowering of standards at the post-graduate level of medical education. Standards cannot be lowered at this level in public interest. This is a matter to be decided by an expert body such as the Medical Council of India assisted by its Post-Graduate Medical Education Committee in accordance with law. D I.A. No.2 in WP(C) No.679of1995, Writ Petition Nos.290of1997, 300 of 1997, C.A. No. 4360of1999. (Arising out ofSLP(C) No.12231of1997) and Writ Petition (C) No.350 of 1998 are disposed of accordingly.

Review Petition Nos. 2371-72 of 1997 in CA Nos.3176-77197 E Normally the power to review is used by us sparingly to correct errors apparent on the face of the record. In the judgment sought to be reviewed, however, there are observations which are so widely worded that they may create mischief or national detriment. We would, therefore, like to clarify the position regarding admissions to the super specialities in medicine. In Post F Graduate Institute of Medical Education & Research, Chandigarh and Ors. v. K.l. Narasimhan and Anr., [1997] 6 SCC 283, which is the judgment in question, it was, inter a/ia, held that there could be reservation of seats for the Scheduled Castes and Scheduled Tribes at post-graduate levels or doctoral levels in medicine and that such reservations would not lead to a loss of G efficiency and are permissible under Article 15(4).

In the group of civil appeals decided by Post Graduate Institute of Medical Education & Research, Chandigarh and Ors. v. K.l. Narasimhan ,,,.. and Anr. (supra), the appeal of the present petitioners had challenged an Admission Notice No. I 5/90 issued in the Indian Express of25.1 I .1990, under H

288 SUPREME COURT REPORTS [1999] SUPP. 1 S C.R

A which six seats for the super speCiality courses of D.M./M.C.H. were kept reserved for the Scheduled Caste and the Scheduled Tribe candidates. The ·- petitioners rightly contend that at the super speciality level there cannot be any relaxation in favour of any category of candidates. Admissions should be entirely on the basis of open merit.

B The ambit of special provisions under Article 15(4) has already been considered by us. While the object of Article 15(4) is to advance the equality principle by providing for protective discrimination in favour of the weaker sections so that they may become stronger and be able to compete equally

C with others more fortunate, one cannot also ignore the wider interests of society while devising such special provisions. Undoubtedly, protective discrimination in favour of the backward, including scheduled castes and - scheduled tribes is as much in the interest of society as the protected groups. At the same time, there may be other national interests, such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which D have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests.

In the case of Dr. Jagdish Saran and Ors. v. Union of India, (supra) this Court observed that at the highest scales of speciality, the best skill or talent must be hand-picked by selection according to capability. Losing a E potential great scien.tist or technologist would be a national loss. That is why the Court observed that the higher the level of education the lesser should be the reservation. There are similar observations in Dr. Pradeep Jain and Ors. v. Union of India and Ors. (supra). Undoubtedly, Dr. Pradeep Jain and Ors. v. Union of India and Ors. (supra) did not deal with reservation in favour of the Scheduled Castes and the Scheduled Tribes. It dealt with reservation in favour of residents and students of the same university. Nevertheless it correctly extended the principle laid down in Dr. Jagdish Saran and Ors. v. Union of India, (supra) to these kinds of reservation also, holding that at the highest levels of medical education excellence cannot be compromised to the detriment of the nation. Admissions to the highest available medical courses in the country at the super-speciality levels, where even the facilities for training are limited, must be given only on the basis of competitive merit. There can be no relaxation at this level. - Indra Sawhney and Ors. v. Union of India and Ors. (supra) has also observed that in certain positions at the highest level merit alone counts. In H specialities and super-specialities in medicine, merit alone must prevail and

DR. PREETI SRIVASTAVA v. STATE (SUJATA V. MANOHAR,J.] 289

there should not be any reservation of posts. The observations in Indra A Sawhney and Ors. v. Union of India and Ors., (supra) were in respect of posts in the specialities and super-specialities in medicine. Nevertheless, the same principle applies to seats in the specialities and super-specialities in medicine. Moreover, study and training at the level of specialities and super-specialities in medicine involve discharging the duties attached to certain specified medical B posts in the hospitals attached to the medical institutions giving education in specialities and super-specialities. Even where no specific posts are created or kept for the doctors studying for the super-specialities or specialities, the work which they are required to do in the hospitals attached to these institutions is equivalent to the work done by the occupants of such posts in that hospital. In this sense also, some of the considerations under Article C 16(4) read with Article 335 rub off on admissions of candidates who are given seats for speciality and super-speciality courses in medicine. Even otherwise under Article 15(4) the special provisions which are made at this level of education have to be consistent with the national interest in promoting the highest levels of efficiency, skill and knowledge amongst the best in the country so that they can contribute to national progress and enhance the D prestige of the nation. The same view has been upheld in Dr. Faza/ Ghafoor v. Union of India and Ors., [1988] Supp. SCC 794 and Mohan Bir Singh Chawla v. Punjab University, Chandigarh and Anr., [1997] 2 SCC 171.

The Post-graduate lnstitutf;! of Medical Education and Research, E Chandigarh, has been set up as an institution of national importance. The Post-graduate Institute of Medical Education and Research, Chandigarh Act, 1966, under Section 2 provides that the object of the said institution is to make the institution one of national importance. Section 12 sets out the objects of the Institute. These are as follows:- F "Objects of lnstitute:The objects of the Institute shall be -

(a) to develop patterns of teaching in under-graduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical education; G (b) to bring together, as far as may be, in one place educational facilities of the highest order for the training of personnel in all important branches of health activity; and

(c) to attain self-sufficiency in post-graduate medical education to meet the country's needs for specialists and medical teachers." H

290 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A Under Section I 3 the functions of the In.stitute include providing both under- ,.. graduate and post-graduate teaching, inter alia, in medicine as also facilities for research, conducting experiments in new methods of medical education both under-graduate and post-graduate, in order to arrive at satisfactory. standards of such education, prescribe courses and curricula for both under- graduate and post-graduate study and to establish and maintain one or more B ·~ medical colleges equipped to undertake not only under-graduate but also post-graduate medical education in the subject.

Under Section 32 of the said Act, the Post-graduate Institute of Medical Education and Research, Chandigarh Regulations, 1967 have been framed. c Regulation 27 provides for 20% of the seats in every course of study in the Institute to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes or other categories of persons in accordance with the general orders issued by the Central Government from time to time. Regulation J~ 27, however, cannot have any application at the highest level of super- specialities as this would defeat the very object of imparting the best possible training to select meritorious candidates who can contribute to the advancement of knowledge in the fields of medical research and its applications. Since no relaxation is permissible at the highest levels in the medical institutions, the petitioners are right when they contend that the reservations made for the Scheduled Caste and the Scheduled Tribe candidates for admission to D.M. and M.C.H. courses which are super-speciality courses, is not consistent with the constitutional mandate under Articles 15(4) and 16(4). Regulation 27 would not apply at the level of-admissions to D.M. and M.C.H. courses. ~

We, therefore, hold that the judgment of this Court in Post Graduate F Institute of Medical Education & Research, Chandigarh and Ors. v. K.l. Narasimhan & Anr., (supra) cannot be read as holding that any type of relaxation is permissible at the super-specialities level. The review petitions are. disposed of accordingly.

All the interlocutory applications also stand disposed of. G S.B. MAJMUDAR, J. Leave granted. ' r have carefully gone through the draft judgment prepared by our esteemed colleague Justice Sujata V. Manohar. I respectfully agree with some ~ of the conclusions arrived at therein at pages 61 and 62, namely, conclusion .: H nos. l and 4.

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.) 291

However, so far as conclusion nos. 2 and 3 are concerned, I respectfully record my reservations and partially dissent as noted hereinafter. In my view, the common entrance examination envisaged under the Regulations framed by the Medical Council of India for Postgraduate Medical Education does not curtail the power of the State Authorities, legislative as well as executive, from fixing suitable minimum qualifying marks differently for general category candidates and for SCs/STs and OBC candidates as highlighted in my present judgment.

So far as conclusion no.3 is concerned, with respect, it is not possible for me to agree with the reasoning and the final conclusion to which our esteemed colleague Justice Sujata V. Manohar has reached, namely, that fixing minimum qualifying marks for passing the entrance test for admission to postgraduate courses is concerned with the standard of Postgraduate Medical Education.

I, however, respectfully agree to that part of conclusion no.3 which states that there cannot be a wide disparity between the minimum qualifying marks for reserved category candidates and the minimum qualifying marks for general category candidates at this level. I also respectfully agree that there cannot be dilution of minimum qualifying marks for such reserved category candidates up to almost a vanishing point. The dilution can be only up to a reasonable extent with a rock bottom, below which such dilution would not be permissible as demonstrated hereinafter in this judgment. In my view, maximum dilution can be up to 50% of the minimum qualifying marks prescribed for general category candidates. On that basis if 45% passing marks are prescribed fpr general category, permissible dilution can then go up to 22 and 1/2 % (50% of 45%). Any dilution below tbis rock bottom would not be permissible under Article 15(4) of the Constitution of India. F For reaching the aforesaid conclusions, I have independently considered the scheme of the relevant provisions of the Constitution in the light of the various judgments of this Court as detailed hereinafter :

Entry 66 of list/, Old Entry 11(2) of list II and Entry 25 of list///: G Entry 66 of List I of the Seventh Schedule reads as under :

'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.'

Old Entry 11 of List 11, as earlier existing in the Constitution oflndia, H

292 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A read as under :

·Education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List IIL'

While Entry 25 of List III as now existing in the Seventh Schedule of the B Constitution reads as under :

"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."

C A conjoint reading of these entries makes it clear that as per Entry 11 of List II which then existed on the statute book, all aspects of education, including university_ education, were within the exclusive legislative competence of the State Legislatures subject to Entries 63 to 66 of List I and the then existing Entry 25 of List III. The then existing Entry 25 of the Concurrent List conferred power on the Union Parliament and State Legislature to enact legislation with respect to vocational and technical training of labour. Thus, the said Entry . 25 of List III had nothing to do with Medical Education. Any provision regarding Medical Education, therefore, was thus covered by Entry 11 of List II subject of course to the exercise of legislative powers by the Union Legislature as per entries 63 to 66 of List I. In the light of the aforesaid relevant entries, as they stood then, a Constitution Bench of this court in The Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar and Ors.. [1963] Suppl. l SCR 112, speaking through JC. Shah, J., for the majority, had to consider whether the State Legislature could impose an exclusive medium of instruction 'Gujarati' for the students who had to study and take examination conducted by the Gujarat Univer.liity. It was held that 'If a legislation imposing F a regional language or Hindi as the exclusive medium of instruction is likely to result in lowering of standards, it must necessarily fall within Item 66 of List I and be excluded to that extent from Item 11 of List II' as it then stood in the Constitution. Medium of instruction was held to have an important bearing on the effectiveness of instruction and resultant standards achieved thereby. In this connection, pert!nent observations were made at pages 142 and 143 of the aforesaid Report:

'If adequate text-books are not available or competent instructors in the medium, through which instruction is directed to be impart~d, - are not available, or the students are not able to receive or imbibe instructions through the medium in which it is imparted, standards

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, .1.) 293 must of necessity fall, and legislation for co-ordination of standards in such matters would include legislation relating to medium of instruction.

If legislation relating to imposition of an exclusive medium of instruction in a regional language or in Hindi, having regard to the absence of text-books and journals, competent teachers and incapacity of the students to understand the subjects, is likely to result in the lowering of standards, that legislation would, in our judgment, necessarily fall within Item 66 of List I and would be deemed to be excluded to that extent from the amplitude of the power conferred by Item No. l l of List IL' c However, after the deletion of Entry 11 from List II and re-drafting of Entry 25 in the Concurrent List as in the present form, it becomes clear that all aspects of education, including admission of students to any educational course, would be covered by the general entry regarding education including technical and medical education etc. as found in the Concurrent List but that would be subject to the provisions of Entries 63 to 66 of List r. Therefore, on a conjoint reading of Entry 66 of List I and Entry 25 of List III, it has to be held that so long as the Parliament does not occupy the field earmarked for it under Entry 66 of List I or for that matter by invoking its concurrent powers as per Entry 25 in the Concurrent List, the question of admission of students to any medical course would not remain outside the domain of the State Legislature. It is not in dispute that up till now the Parliament, by any legislative exercise either by separate legislation or by amending the Indian Medical Council Act, 1956 has not legislated about the controlling of admissions of students to higher medical education courses in the country. Therefore, the only question remains whether the Indian Medical Council Act F enacted as per Entry 66 of List I covers this aspect. If it covers the topic then obviously by the express language of Entry 25 of List III, the said topic would get excluded from the legislative field available to the State Legislature even under Entry 25 of Concurrent List. For answering this question, we have therefore, to see the width of Entry 66 of List r. It deals with "Co-ordination G and determination of standards in institutions for higher education ..." A mere reading of this Entry shows that the legislation which can be covered by this entry has to deal basically with 'Co-ordination and determination of standards in institutions for higher education'. Meaning thereby, the standards of education at the institutions of higher education where students are taking education after admission are to be monitored by such a legislation or in other H

294 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A words after their enrolment for studying at such institutions for higher education such students have to undertake the prescribed course of education evolved with a view to having uniform and well laid down standards of higher medical education. It cannot be disputed that postgraduate teaching in medical education is being imparted by institutions for higher medical education. But B the question is whether the topic of admission of eligible candidates/students for taking education in such institutions has anything to do with co-ordination and determination of standards in these institutions. Now 'standards in the institutions' have been prefixed by two words, namely, 'co-ordination and determination' of such standards as per Entry 66 of List I. So far as "co- ordination" is concerned, it is a topic dealing with provision of uniform standards of education in different institutions so that there may not be any hiatus or dissimilarity regarding imparting of education by these institutions to the students taking up identical courses of study for higher medical education in these institutions. That necessarily has a nexus with the regulations of standards of education to be imparted to already admitted students to the concerned courses of higher education. But so far as the phrase "determination of standards in institutions for higher education" is concerne_d, it necessarily has to take in its sweep the requirements of having a proper curriculum of studies and the requisite intensity of practical training to be imparted to students attaining such courses. But in order to maintain the fixed standard of such higher medical education in the institutions, basic qualification or eligibility for admission of students for being imparted such education also would assume importance. Thus, the phrase "determination of standards in institutions for higher education" would also take in its sweep the basic qualifications or eligibility criteria for admitting students to such courses of education. It can, therefore, be held that the Indian Medical Council Act, 1956 enacted. under Entry 66 of List I could legitimately authorise F Medical Council of India which is the apex technical body in the field of medical education and which is enjoined to provide appropriately qualified medical practitioners for serving the suffering humanity to prescribe basic standards of eligibility and qualification for medical graduates who aspire to join post-graduate courses for obtaining higher medical degrees by stuaying in the institutions imparting such education.

But the next question survives as to whether after laying down the basic qualifications or eligibility criteria for admission of graduate medical students to the higher medical education courses which may uniformly apply all over India as directed by the Medical Council of India, it can have further power and authority to control the intake capacity of these eligible students

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 295

in a given course conducted by the institutions for higher post-graduate medical education. In other words, whether it can control the admissions of eligible candidates to such higher medical education courses or lay down any criteria for short-listing of such eligible candidates when the available seats for admission to such higher post-graduate medical education courses are limited and the eligible claimants seeking admission to such courses are far greater in number? So far as this question is concerned, it immediately projects the problem of short-listing of available eligible candidates competing for admission to the given medical education course and how such admissions could be controlled by short-listing a number of eligible candidates out of the larger number of claimants who are also eligible for admission. In other words, there can be too many eligible candidates chasing too few available seats. So C far as this question is concerned, it clearly gets covered by Entry 25 of Concurrent List III rather than Entry 66 of List I as the latter entry would enable, as seen above, the Medical Council of India only to Jay down the standards of eligibility and basic qualification of graduate medical students for being admitted to any higher post-graduate medical course. Having provided for the queue of basically eligible qualified graduate medical students for admission to post-graduate medical courses for a given academic year, the role of Medical Council of India would end at that stage. Beyond this stage the field is covered by Entry 25 of List III dealing with education which may also cover the question of controlling admissions and short-listing of the eligible candidates standing in the queue for being admitted to a given course of study in institutions depending upon the limited number of seats available in a given discipline of study, the number of eligible claimants for it and also would cover the further qu~stion whether any seats should be reserved for SC, ST and OBCs as permissible to the State authorities under Article 15(4) of the Constitution of India. So far as these questions are concerned, it is no doubt true that Entry 25 of Concurrent List read with Article 15(4) of the F Constitution of India may simultaneously authorise both the Parliament as well as the State Legislatures to make necessary provisions in that behalf. The State can make adequate provisions on the topic by resorting to its legislative power under Entry 25 of List III as well as by exercising executive power under Article 162 of the Constitution of India read with Entry 25 of List III. Similarly, G the Union Government, through Parliament, may make adequate provisions regarding the same in exercise of its legislative powers under Entry 25 of List III. But so long as the Union Parliament does not exercise its legislative powers under Entry 25 of List III covering the topic of short-listing of eligible candidates for admission to courses of post-graduate medical education, the field remains wide open for the State authorities to pass suitable legislations or executive H

296 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A orders in this connection as seen above. As we have noted earlier, the Union Parliament has not invoked its power under Entry 25 of List III for legislating on this topic. Therefore, the field is wide open for the State Governments to make adequate provisions regarding controlling admissions to postgraduate colleges within their territories imparting medical education for ultimately getting post-graduate degrees.

However, I may mention at this stage that reliance placed by Shri Chaudhary, learned senior counsel for the State of Madhya Pradesh on a Constitution Bench judgment of this Court in Tej Kiran Jain and Ors. v. N. Sanjiva Reddy and Ors., [ 1970] 2 SCC 272, interpreting the word "in" in the phrase "in Parliament" to mean "during the sitting of Parliament and in the course of the business of Parliament" cannot be of any avail to him while interpreting the phrase "determination of standards in institutions for higher education" as found in Entry 66 of List I. His submission, relying on the aforesaid decision that directions regarding "standards in institutions" mean only those directions of the Medical Council of India which regulate the actual courses of study after the students are admitted into the institutions and cannot cover the situation prior to their admission, meaning thereby, pre- admission stage for students seeking entry to the institution of higher education cannot be countenanced. The reason is obvious. Once it is held that the Medical Council of India exercising its statutory functions and powers under the Indian Medical Council Act, 1956 whi~h squarely falls within Entry 66 of List I can lay down the eligibility and basic qualifications of students entitled to be admitted to such post-graduate courses of study, their eligibility qualification would naturally project a consideration which is prior to their actual entry in the institutions as students for being imparted higher education. That would obviously be a pre-admission stage. Therefore, F the phrase ·determination of standards in institutions' does not necessarily mean controlling standards of education only after the stage of entry of students in these institutions and necessarily not prior to the entry point. However, as seen earlier, the real question is whether "determination of standards in institutions' would go beyond the stage of controlling the eligibility and basic qualification of students for taking up such courses and would also cover the further question of short-listing of such eligible students by those running the institutions in the States. For every academic year, there will be limited number of seats in post-graduate medical courses vis-a-vis a larger number of eligible candidates as per guidelines laid down by the Medical Council of India. Short-listing of such candidates, therefore, has to be resorted to. This exercise will depend upon various imponderables like (i)

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.J 297

limited number of seats for admission in a given cours.: vis-a-vis larger number of eligible candidates seeking admissions and the question of fixation of their inter se merits so as to lay down rational criteria for selecting better candidates as compared to candidates with lesser degree of competence for entry in such courses; (ii) Whether at a given point of time there are adequate chances and scope for SC,ST and OBC candidates who can equally be eligible for pursuing of such courses but who on account of their social or economic backwardness may lag behind in competition with other general category candidates who are equally eligible for staking their claims for such limited number of seats for higher educational studies; (iii) availability of limited infrastructural facilities for training in institutions for higher medical education in the State or in the colleges concerned. All these exigencies of the situations may require State authorities, either legislatively or by exercise of executive powers, to adopt rational standards or methods for short-listing eligible candidates for being admitted to such medical courses from year to year also keeping in view the requirement of Article 15(4) of the Constitution of India.

While dealing with Entry 25 of List III it has also to be kept in view that the word "education" is of wide import. It would necessarily have in its fold (i) the taught, (ii) the teacher, (iii) the text and also (iv) training as practical training is required to be imparted to students pursuing the course of post- graduate medical education. Who is to be the taught is determined by Medical Council of India by prescribing the basic qualifications for admission of the students. Adequate number of teachers keeping in view teacher taught ratio is also relevant. Prescribing appropriate courses for study i.e. curricula is also covered by the term 'education'. Training to be imparted to the students has a direct nexus with infrastructural facilities like number of beds of patients to be attended to by post-graduate medical students, providing appropriate infrastructure for surgical training etc. also would form part of education. Role F of Medical Council of India is exclusive in the field of laying down of basic qualifications of the taught and also the requirement of qualified teachers, their numbers and qualifications, prescribing text and requisite training to be imparted to students undertaking post-graduate medical courses. All these provisions quite clearly fall within the domain of Medical Cou.ncil of India's G jurisdiction. However, the only field left open by the Parliament while enacting the Indian Medical Council Act, 1956 under Entry 66 of List III of Schedule VII is the solitary exercise of short-listing of eligible taught for being admitted to such courses. That field can validly be operated upon by the State authorities so long as Parliament, in its wisdom, does not step in to block even that solitary field otherwise remaining open for State authorities to H

298 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A function in that limited sphere. Infrastructure facilities, therefore, for giving such practical training to the taught also would be an important part of medical education. It is of course true that not only the eligibility of students for admission to medical courses but also the quality of students seeking to get medical education especially post-graduate medical education with a view to turning out efficient medical practitioners for serving the suffering humanity would all be covered by the term "education". So far as the quality of admitting students to the courses of higher medical education i.e. post- graduate medical courses is concerned, the admission of students may get sub-divided into two parts; (i) basic eligibility or qualification for being permitted to enter the arena of contest for occupying the limited number of seats available for pursuing such education; and (ii) the quality of such eligible candidates for being admitted to such courses. As we have seen earlier, the first part of exercise for admission can be covered by the sweep of the parliamentary legislation i.e. the Indian Medical Council Act, 1956 enabling the delegate of the Parliament namely, Medical Council of India to lay down proper criteria for that purpose as per regulations framed by it under / Section 33 of the Indian Medical Council Act. This aspect is clearly covered by Entry 66 of List I but so far as the second part of admissions of eligible students is concerned, it clearly remains in the domain of Entry 25 of List lII ., and it has nothing to do with Entry 66 of List I and as this field is wide open till the Parliament covers it by any legislation under Entry 25 of List III, the E State can certainly issue executive orders and instructions or even pass appropriate legislations for controlling and short-listing the admissions of eligible candidates to such higher post-graduate medical courses in their institutions or other institutions imparting such medical education in the States concerned.

F A three Judge bench of this Court in Ajay Kumar Singh and Ors. v. State of Bihar and Ors., [ 1994] 4 SCC 401, has taken the same view on these entries which commands acceptance. Jeevan Reddy, J., speaking for the three Judge bench placing reliance on an earlier three Judge bench judgment of this Court in State of M.P. v. Nivedita Jain, [ 1981] 4 SCC 296, and agreeing with the view expressed therein observed in para 22 of the Report as under :

'The power to regulate admission to the courses of study in medicine is traceable to Entry 25 in List Ill. (Entry 11 in List II, it may be remembered, was deleted by the 42nd Amendment to the Constitution and Entry 25 of List lII substituted). The States, which establish and maintain these institutions have the power to regulate all aspects and

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 299

affairs of the institutions except to the extent provided for by Entries A 63 to 66 of List I. Shri Salve contended that the determination and coordination of standards of higher education in Entry 66 of List I takes in all incidental or ancillary matters, that Regulation of admission to courses of higher education is a matter incidental to the determination of standards and if so, the said subject-matter falls outside the field reserved to the States. He submits that by virtue of Entry 66 List I, which overrides Entry 25 of List III, the States are denuded of all and every power to determine and co-ordinate the standards of higher education, which must necessarily take in regulating the admission to these courses. Even if the Act made by Parliament does not regulate the admission to these courses, the States have no power to provide for the same that the said subject-matter falls outside their purview. Accordingly, it must be held, says Shri Salve, that the provision made by the State Government reserving certain percentage of seats under Article 15(4) is wholly incompetent and outside the purview of the field reserved to the States under the Constitution. We cannot agree, While Regulation of admission to these medical courses may be incidental to the power under Entry 66 List I, it is integral to the power contained in Entry 25 List III. The State which has established and is maintaining these institutions out of public funds must be held to possess the power to regulate the admission policy consistent with Article 14. Such power is an integral component of the power to maintain and administer these institutions. Be that as it may, since we

... have held, agreeing with the holding in Nivedita Jain that Entry 66 in List 1 does not take in the selection of candidates or regulation of admission to institutions of higher education, the argument of Shri Salve becomes out of place. The States must be held perfectly competent to provide for such reservations.' F

It is also pertinent to note that decision of this Court in Kumari Nivedita Jain, (supra) is approved by a Constitution Bench of nine Judges of this court in Indra Sawhney and Ors. v. Union of India and Ors., [ 1992] Supp. 3 SCC 217 at page 751, to which I will make a detailed reference later on. G II. Role of the Medical Council of India:

As noted earlier, the Indian Medical Council Act, 1956 was enacted by the Union Parliament in exercise of its powers.under Entry 66 of List I of the Seventh Schedule of the Constitution. The statement of objects and reasons H (

300 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A of the said Act read as under :

'The objects of this Bill are to amend the Indian Medical Council Act, 1933 (Act XXVII of 1933) -

(a) to give representation to licentiate members of the medical B profession, a large number of whom are still practising in the country; (b) to provide for the registration of the names of citizens of India who have obtained foreign medical qualifications which are not at present recognised under the existing Act; C (c) to provide for the temporary recognition of medical qualifications granted by medical institutions in countries outside India with which no scheme of reciprocity exists in cases where the medical practitioners concerned are attached for the time being to any medical institution in India for the purpose of teaching or research or for any charitable object; D (d) to provide for the formation of a Committee of Post-Graduate Medical Education for the purpose of assisting the Medical Council of India to prescribe standards of post-graduate medical education for the guidance of Universities and to advise Universities in the matter of securing uniform standards for E post-graduate medical education throughout India;

(e) to provide for the maintenance of an all-India register by the Medical Council of India, which will contain the names of all the medical practitioners possessing recognised medical qualifications.' F Amongst others, the object and reason no.(d) clearly indicated that the Act was to provide for the formation of a Committee of Post-Graduate Medical Education for the purpose of assisting the Medical Council of India to prescribe standards of post-graduate medical education for the guidance of Universities. G This necessarily meant conferring power on Medical Council of India to be the approving body for the Universities for enabling them to prescribe standards of post-graduate medical education. Naturally that referred to the courses· of study· to be prescribed and the types of practical training to be imparted to the admitted students for such courses. We may now refer to the relevant statutory provisions of the Act. Section 10-A empowers the Central H Government to give clearance for establishing medical colleges at given

DR. PREETI SRIVASTAVA v. STATE rs.B. MAJMUDAR, J.) 301 centres and the statutory requirements for establishing such colleges. It is the A Medical Council of India which has to recommend in connection with such proposed scheme for establishing medical colleges. Sub-section (7) of Section I 0-A lays down the relevant considerations to be kept in view by the Medical Council of India while making such recommendations in connection with any scheme proposing to establish a medical college. They obviously refer to the types of education to be imparted to admitted students and the basic requirement of infrastructure for imparting such education which only would enable the proposed college to be established. None of these requirements has anything to do with the controlling of admissions out of qualified and ., eligible students who can take such education. Section 11 deals with medical qualifications granted by any University or medical institution which can be recognised as medical qualifications for the purpose of the Act. Meaning thereby, only such qualified persons can be registered as medical practitioners under the Act. None of the other provisions of the Act deal with the topic of short-listing of eligible and otherwise qualified candidates for being admitted to medical courses either at MBBS level or even at post-graduate level. As we are concerned with minimum standards for medical education at post- D graduate level, Section 20 of the Act becomes relevant. It reads as under :

'20. Post Graduate Medical Educatirm Committee for assisting Council in matters relating to post-graduate medical education-

(I) The Council may prescribe standards of post-graduate medical E

... education for the guidance of Universities, and may advise Universities in the matter of securing uniform standards for post-graduate medical education throughout India, and for this purpose the Central Government may constitute from among the members of the Council a Post-Graduate Medical Education F Committee (hereinafter referred to as the Post-graduate Committee).

(2) The Post-Graduate Committee shall consist of nine members all of whom shall be, persons possessing post-graduate medical qualifications and experience of teaching or examining post- G graduate students of medicine . • (3) Six of the members of the Post-Graduate Committee shall be nominated by the Central Government and the remaining three members shall be elected by the Council from amongst its members. H •

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A (4) For the purpose of considering Post-graduate studies in a subject, the Post-graduate Committee may co-opt, as and when necessary, one or more members qualified to assist it in that subject. (5) The views and recommendations of the Post-Graduate Committee on all matters shall be placed before the Council; and if the B Council does not agree with the views expressed or the recommendations made by the Post-Graduate Committee on any matter, the Council shall forward them together with its observations to the Central Government for decision." Sub-section (1) of Section 20 while dealing with prescription of standards of C post-graduate medical education by the Council for the guidance of Universities does not by itself touch upon the topic of controlling of admission of eligible medical graduates or short-listing them according to the exigencies of the situations at a given point of time by those running medical institutions imparting post-graduate medical courses in the colleges. Standards of post graduate medical education as mentioned in sub-section (I) of Section 20 D therefore, would include guidance regarding the minimum qualifications or eligibility criteria for such students for admission and after they are admitted having undergone the process of short-listing at the hands of the State authorities or authorities running the institutions, how they are to be trained. and educated in such courses, how practical training has to be given to them and what would be the course of study, the syllabi and the types of examination which they have to undertake before they can be said to have successfully completed post-graduate medical education in the concerned States. But having seen all these it has to be kept in view that all that Sub-section ( l) of Section 20 enables the Medical Council of India is to merely give guidance to the Universities. What is stated to be guidance can never refer to the quality of a candidate who is otherwise eligible for admission. None of the remaining provisions up to Section 32 deal with the question of controlling of admission by process of short-listing from amongst eligible and duly qualified candidates seeking admission to post-graduate medical courses. We then go to Section 33 which confers power on the Medical Council of India G to make regulations. It provides that 'the Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act. Therefore, thts general power to make regulations has to be with reference to any of the statutory purposes indicated in any other provisions of the Act. As none of the provisions in the Act enables the Medical Council of India to regulate the admission of eligible candidates to the available seats for pursuing higher medical studies in institutions, the

DR. PRE.ETI SR IV AST AV Av. STATE [S.B. MAJMUDAR, J.] 303

general power to make regulations cannot cover such a topic. So far as the express topics enumerated in Section 33 on which regulations can be framed are concerned, the relevant topics for our purpose are found in clauses (fc) and Q). So far as clause (fc) is concerned, it deals with 'the criteria for identifying a student who has been granted a medical qualification referred to in the Explanation to sub-section (3) of Section lOB". When we turn to Section I OB, we find that it deals with those students who are admitted on the basis of the increase in its admission capacity without previous permission of the Central Government. Any medical qualification obtained by such student will not enable him or her to be treated as duly medically qualified. The medical qualification is obviously obtained by the student who has successfully completed his course of study and obtained the requisite degree. It is the obtaining of such requisite medical degree and qualification that entitles him

... to get enrolled as per Section 15 on any State Medical Register so that he can act as a Registered Medical Practitioner. That obviously has nothing to do with the admission of students desirous of obtaining medical degrees after undergoing requisite educational training at the institutions. Therefore, no regulation framed under Section 33(fc) can cover the topic of short-listing of eligible candidates for admission. Then remains in the field clause G) which provides as under :

- "[G)the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions E

for grant of recognised medical qualifications;"

A mere look at the said provision shows that regulations under this provision can be framed by the Medical Council of India for laying down the courses and period of study and of practical training to be undertaken, the subjects F of examination and the standard of proficiency therein to be obtained by the admitted students for obtaining recognised medical qualifications. They all deal with post-admission requirements of eligible students in the medical courses concerned. That has nothing to do with pre-entry stage of such students eligible for admission. Consequently, any regulation framed by the G Medical Council ofindia under Section 33 which seeks to give any guidelines

-· in connection with the method of admission of such eligible students to medical courses would obviously remain in the realm of a mere advise or guidance and can obviously therefore, not have any binding force qua admitting authorities. It, therefore, must be held that once the Medical Council -~ . of India has \aid down basic requirements of qualifications or eligibility criteria H

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A for a student who has passed his MBBS examination for being admitted to post-graduate courses for higher medical education in institutions and once these basic minimum requirements are complied with by eligible students seeking such admissions, the role of Medical Council of India comes to an end. As seen earlier, the question of short-listing falls squarely in the domain B of State authorities as per entry 25 of List III till Parliament steps in to cover this field.

We may now briefly deal with decisions of this Court rendered from time to time in connection with this question. A three Judge Bench of this Court in D.N. Chanchala v. State of Mysore and Ors. etc., [1971] Supp. SCR 608, C speaking through Shelat, J., emphasised the necessity for a screening test and short-listing of eligible candidates for being admitted to medical courses in view of the fact that claimants are many and seats are less. Dealing with three universities set up in the territories of the then State of Mysore catering to medical education, the following relevant observations were made at page 619 of the Report : D "The three Universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas. Obviously one University for the whole of the State could neither have been adequate nor feasible to satisfy those needs. Since it would not be possible to admit all candidates in the medical colleges run by the Government, some basis for screening the candidates had to be sec up. There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centres for medical training, have the right to frame rules for admission so long as those mies are not inconsistent with the Univer~ity statutes and regulations and do not suffer from infirmities, constitutional or otherwise".

"Similar observations were made at page 628 of the Report :

"On account of paucity of institutions imparting training in technical studies and the increasing number of candidates seeking admission therein, there is obviously the need for classification to enable fair and equitable distribution of available seats. The very decisions relied on by counsel· for the petitioner implicitly recognise the need for classificati~n and ~he power of those who run such institutions to lay down classificatfon'."

DR. PREETI SRIVASTAVA v. STATE (S.B. MAJMUDAR, J.] 305

A three Judge Bench of this Court in State of Madhya Pradesh and Anr. v. A Kumari Nivedita Jain and Ors., (supra) had to consider the legality of order passed by the State of Madhya Pradesh completely relaxing the conditions relating to the minimum qualifying marks for SC, ST candidates for admission to medical courses of study on non- availability of qualified candidates from these categories. Such an exercise was held permissible under Articles 14 and B 15 of the Constitution of India. A.N. Sen, J.-, speaking for the Court in this connection referred to Entry 25 of the Concurrent List and also the constitutional scheme of Entry 66 of List I and held that:

'By virtue of the authority conferred by the Medical Council Act, the Medical Council may prescribe the eligibility of a candidate who may seek to get admitted into a Medical College for obtaining recognised medical qualifications. But as to how the selection has to be made out of the eligible candidates for admission into the Medical College necessarily depends on circumstances and conditions prevailing in particular States and does not come within the purview of the Council. Regulation I which lays down the conditions or qualifications for admission into medical course comes within the competence of the Council under Section 33 of the Act and is mandatory, whereas Regulation II which deals with the process or procedure for selection from amongst eligible candidates for admission is outside the authority of the Council under Section 33 of the Act, and is merely in the nature of a recommendation and is directory in nature.

(paras 19 and 21 )

' Entry 25 in List II is wide enough to include within its ambit the question of selection of candidates to Medical Colleges and there is nothing in the Entries 63, 64 and 65 of List I to suggest to the contrary. F

(para 22)

As there is no legislation covering the field of selection of candidates for admission to Medical Colleges, the State Government G would, undoubtedly, be competent to pass executive orders in this regard under Article 162.

(para 24)

Thus Regulation II of the Council which is merely directo1-y and H

306 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A in the nature of a recommendation has no such statutory force as to .- render the Order in question which contravenes the said Regulation illegal, invalid and unconstitutional. The Order can, therefore, be supported under Article 15(4).

(paras 22 and 25) B The· State is entitled to make reservations for the Scheduled Castes and Scheduled Tribes in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates c belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been D made and if there be no law to the contrary. Note (ii) of Rule 20 of the Rules for admission framed by the State Government specifically empowers the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary. Such relaxation neither can be said to be unreasonable, nor constitutes violation of E Article 15(1) and (2) or Article 14 of the Constitution. The impugned order does not affect any relaxation in the standard of medical education or curriculum of studies in Medical Colleges for those

F candidates after their admission to the College and the standard of examination and the curriculum remains the same for all.

(paras 26 and 27)"

(Emphasis supplied) ' The aforesaid. observations of the court are well sustained on the scheme of the relevant entries in Vllth Schedule to which we have made a reference G earlier. As noticed hereinbefore, this judgment of three member Bench is approved by the Constitution Bench in its judgment in Indra Sawhney's case (supra). It is of course true that these observations are made with reference to admission to MBBS course and not to post-graduate medical courses. But on the constitutional scheme of the relevant entries, the very same result can follow while regulating admissions to post-graduate medical courses also. H Before parting with discussion on the topic regarding role of Medical Council

DR. PREETI SRIVASTAVAv. STATE [S.B. MAJMUDAR, J.] 307

of India, we may also usefully refer to the observations of Jeevan Reddy, J., A in the case of Ajay Kumar Singh and Ors. v. State of Bihar and Ors., (supra). Jeevan Reddy, J., speaking for the three Judge Bench in para 18 of the Report on the review and relevant provisions of the Indian Medical Council Act has made the following pertinent observations in the said para of the Report at page 415 : B "A review of the provisions of the Act clearly shows that among other things, the Act is concerned with the determination and coordination of standards of education and training in medical institutions. Sections 16, 17, 18 and 19 all speak of 'the courses of study and examinations to be undergone" to obtain the recognised medical qualification. They do not speak of admission to such courses. Section 19-A expressly empowers the council to 'prescribe the minimum standards of medical education" required for granting undergraduate medical qualification. So does Section 20 empower the council to prescribe standards of post-graduate medical education but "for the guidance of universities" only. It further says that the council "may also advise universities in the matter of securing uniform standards for post-graduate medical education throughout India". (The distinction between the language of Section 19-A and Section 20 is also a relevant factor, as would be explained later.) Clause G) of Section 33 particularises the subjects with respect to which Regulations can be made by the council. It speaks of the courses and period of study and the practical training to be undergone by the students, the subjects of examination which they must pass and the standards of proficiency they must attain to obtain the recognised medical qualifications but it does not speak of admission to such courses of study. Indeed, none of the sections aforementioned empower the council to regulate or prescribe qualifications or conditions for admission to such courses of study. No other provision in the Act does. It is thus clear that the Act does not purport to deal with, regulate or provide for admission to graduate or post-graduate medical courses. Indeed, insofar as post-graduate courses are concerned, the power of the Indian Medical Council to G 'prescribe the minimum standards of medical education" is only advisory in nature and not of a binding character. In such a situation, . it would be rather curious to say that the Regulations made under the Act are binding upon them. The Regulations made under the Act cannot also provide for or regulate admission to post-graduate courses in any event." H

308 SUPREME COURT REPbRTS [1999] SUPP. I S.C.R.

A In our view, these observations are cleprly borne out from the statutory scheme of the Indian Medical Council Act, as seen earlier.

III. Role of States for short-listing of admissions to post-graduate courses:

As seen earlier, so far as the field consisting of the short-listing of B admission out of eligible and duly qualified medical graduates for being admitted to post-graduate medical courses in institutions is concerned, as the Union Parliament.has not said anything about the same, the field is wide ope~ for the State authorities to regulate such admissions by short-listing the available candidates keeping in view the concept of reservation of seats as permitted by Article 15(4) of the Constitution. c In the case of R. Chitralekha and Anr. v. State of Mysore and Ors., [1964] 6 SCR 368, a Constitution Bench of this Court while dealing with Entry 66 of List I and Article 15(4) of the Constitution of India had to consider the question whether the State Government could prescribe the criteria for selection of students having minimum qualifications laid down by the University for D admission to medical courses and whether it would affect the central legislation enacted under Entry 66 of List I of the Constitution? Answering this question in favour of the State authorities, it was observed at page 379 of the Report by Subba Rao, l, speaking on behalf of the Constitution Bench as under :

" .. .If the impact of the State law providing for such standards on E 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 law prescribing a higher percentage of marks for extra-curricular activities in the matter of F 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.

G It is then said that the Mysore University Act conferred power to prescribe rules for admission to Colleges on the University and the Government cannot exercise that power. It is true that under S.23 of the Mysore University Act, 1956, the Academic Council shall have the power to prescribe the conditions for admission of students to the University and, in exercise of its power, it has prescribed the percentage of marks which a student shall obtain for getting admission in medical

DR. PREETI SRIVASTAVA v. ST ATE [S.B. MAJMUDAR, J.] 309

or engineering colleges. The orders of the Government do not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have the minimum qualifications prescribed by the University. The Government runs most of the medical and engineering colleges. Excluding the State B aided colleges for a moment, the position is as follows :

The Colleges run by the Government, having regard to financial commitments and other relevant considerations, can only admit a specific number of students to the said Colleges. They cannot obviously admit all the applicants who have secured the marks prescribed by the University. It has necessarily to screen the applicants on some reasonable basis. The aforesaid orders of the Government only prescribed criteria for making admissions to Colleges from among students who secured the minimum qualifying marks prescribed by the University. Once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power."

At page 381 of the same Report, the following observations are made by the Constitution Bench, speaking through Subba Rao, J. : "We, therefore, hold that the Government has power to prescribe a machinery and also the criteria for admission of qualified students to medical and engineering colleges run by the Government and, with the consent of the management of the Government aided colleges, to the said colleges also."

Another decision of the Constitution Bench of this Court was rendered in the case of Chitra Ghosh and Anr. v. Union of India and Ors., 1970 (I) SCR 413. Grover, J., speaking for the Constitution Bench observed at page 418 as under: G "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 H

310 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A 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 B interfere with the manner and method of making the classification."

At page 419 of the Report it has been further stated as under:

"The next question that has to be determined is whether the differentia on which classification has been made has rational relation with the c object to be achieved. The main purpose of admission to a medical college is to impart education in the theory and practice of medicine. As noticed before the sources from which students have to be drawn are primarily determined by the authorities who maintain and run the institution, e.g., the Central Government in the present case. In Minor D P. Rajendran v. State of Madras it has been stated that the object of selection for admission is to secure the best possible material. This can surely be achieved by making proper rules in the matter of selection but there can be no doubt that such selection has to be confined to the sources that are intended to supply the material. If the sources have been classified in the manner done in the present case it is difficult to see how that classification has no rational nexus with the object of imparting medical education and also of selection for the purpose."

In the case of State of Andhra Pradesh and Anr. v. Lavu Narendranath and Ors.etc., [1971] 1 SCC 607, a four Judge Bench of this Court had to consider whether the entrance test prescribed by the Government for short- listing eligible candidates for being admitted to medical courses in colleges was legally permissible or not. Upholding the power of the State Government on the anvil of the Constitution, Mitter, J., speaking on behalf of the four Judge Bench held that: G "Merely because the University had made regulations regarding the admission of students to its degree courses, it did not mean that any one who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission to such courses of study. If the number of candidates applying for such admission far exceeds the number of seats availal:}le, the University can have to

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 311

make its choice out of the applicants to find out who should be admitted and if instead of judging the candidates by the number of marks obtained by them in the qualifying examination the University thinks fit to prescribe another test for admission no objection can be taken thereto. What the University can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B.B.S. course.

9. In our view the test prescribed by the Government in no way militates against the power of Parliament under Entry 66 of List I of the Seventh Schedule to the Constitution. The said entry provides:

"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

The above entry gives Parliament power to make Jaws for laying down how standards in an institution for higher education are to be determined and how they can be co-ordinated. It has no relation to a test prescribed by a Government or by a University for selection of D a num her of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject."

Similar observations were found in para 15 of the Report, wherein it was observed that:

" .... The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study. There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility. The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission : the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor." G The aforesaid observations of the four Judge Bench, in our view, correctly bring out the permissible scheme of short-listing of eligible candidates in the light of the relevant provisions with which we are concerned.

In the case of Dr. Ambesh Kumar v. Principal, L.l.R.MMedical College, H

312 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A Meerut and Ors., [1986] Supp. SCC 543, a two Judge Bench of this court had to consider the question whether out of the eligible candidates qualified for being considered for admission to medical education imparted in medical colleges of the State, looking to the limited number of seats available, the State could resort to the process of weeding out by laying down further B criteria for short-listing such candidates. Upholding such an exercise undertaken by the State in the light of the relevant provisions of the Constitution, B.C.Ray, J., speaking for the court, made the following observations at pages 544 and 545 of the Report as under :

"The State Government can in exercise of its executive power under c Article 162 make an order relating to matters referred to in Entry 25 ·- of the Concurrent List in the absence of any law made by the State Legislature. The impugned order made by the State Government pursuant to its executive powers was valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe D the power of the Central Government as well as the Parliament provided in Entry 66 of List I.

The order in question merely specified a further eligibility qualification for being considered for selection for admission to the post-graduate courses (degree and diploma) in the Medical Colleges E in the State in accordance with the criteria laid down by Indian Medical Council. The number of seats for admission to various post- graduate courses both degree and diploma in Medical Colleges is limited and a large number of candidates apply for admission to these courses of study. In such circumstances the impugned order cannot be said to be in conflict with or repugnant to or encroach upon the F.- Regulations framed under the provisions of Section 33 of the Indian Medical Council Act. On the other hand by laying down a further qualification of eligibility it promotes and furthers the determination of standards in institutions for higher education."

G In this connection, we may also refer to a later Constitution Bench Judgment of this Court in Indra Sawhney and Ors. v. Union of India and Ors., (supra). As noted earlier, judgment of this Court in Kumari Nivedita Jain's case (supra) was approved therein. Jeevan Reddy, J., speaking on behalf of the Constitution Bench, at page 751 of the Report in para 837 has referred to, with approval, the observations of this Court in State of Madhya Pradesh v. H Kumari Nivedita Jain, (Supra) to the effect that admission to medical courses

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 313

was regulated by an entrance test for general candidates, the minimum qualifying marks were 50% in the aggregate and 33% in each subject. For SC/ ST candidates, however, it was 40% and 30% respectively. The said deviation was upheld in Kumari Nivedita Jain's case (supra) and the same was also approved by the Constitution Bench in the aforesaid decision.

In this connection, we may also usefully refer to the relevant observations in the case of State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Ors. (supra) which got imprimatur of the Constitution Bench of this court in Indra Sawhney's case (supra). At page 751 of the Report in Indra Sawhney's case (supra), the following pertinent observations are found in the majority judgment wherein Jeevim Reddy, J., in paragraph 837 C of the Report observed as under:

"Having said this, we must append a note of clarification. In some cases arising under Article 15, this Court has upheld the removal of minimum qualifying marks, in the case of Scheduled Caste/Scheduled Tribe candidates, in the matter of admission to medical courses. For D example, in State of MP. v. Nivedita Jain admission to medical course was regulated by an entrance test (called Pre-Medical Test). For general candidates, the minimum qualifying marks were 50% in the aggregate and 33% in each subject. For Scheduled Caste/Scheduled Tribe candidates, however, it was 40% and 30% respectively. On finding that Scheduled Caste/Scheduled Tribe candidates equal to the number of the seats reserved for them did not qualify on the above standard, the Government did away with the said minimum standard altogether. The Government's action was challenged in this Court but was upheld. Since it was a case under Article 15, Article 335 had no relevance and was not applied. But in the case of Article 16, Article 335 would•be relevant and any order on the lines of the order of the Government of Madhya Pradesh (in Nivedita Jain) would not be permissible, being inconsistent with the efficiency of administration. To wit, in the matter of appointment of Medical Officers, the Government or ihe Public Service Commission cannot say that there shall be no minimum qualifying marks for Scheduled Caste/Scheduled Tribe candidates, while prescribing a minimum for others. It may be permissible for the Government to prescribe a reasonably lower standard for Scheduled Castes/Scheduled Tribes/Backward Classes - consistent with the requirements of efficiency of administration - it would not be permissible not to prescribe any such minimum standard at all. While H

314 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A prescribing the lower minimum standard for reserved category, the nature of duties attached to the post and the interest of the general public should also be kept in mind."

In para 20 of the Report in the case of State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Ors. (supra) the following pertinent observations B are found:

"Undoubtedly, under Section 33 of the Act, the Council is empowered to make regulations with the previous sanction of the Central Government generally to carry out the purposes of the Act and such regulations may also provide for any of the matters mentioned in c Section 33 of the Act. We have earlier indicated what are the purposes of this Act. Sub-sections (j), (k), (I) and (m) of the Act which we have earlier set out clearly indicate that they have no application to the process of selection of a student out of the eligible candidates for admission into the medical course. Sub- sections G), (k) and (I) relate to post-admission stages and the period of study after admission in Medical Colleges. Sub-section (m) of Section 33 relates to a post- degree stage. Sub-section (n) of Section 33 which has also been quoted earlier is also of no assistance as the Act is not concerned with the question of selection of students out of the eligible candidates for admission into Medical Colleges. It appears to us that the observations of this Court in the case of Arti Sapru v. State of Jammu & Kashmir which we have earlier quoted and which were relied on by Mr. Phadke, were made on such consideration, though the question ,• was not very properly finally decided in the absence of the Council."

The aforesaid observations are also well borne out from the scheme of the F Indian Medical Council Act to which we have made a detailed reference earlier. But even apart from that, once these observations have been approved by a Constitution Bench of nine learned Judges of this Court, there is no scope for any further debate on this aspect in the present proceedings.

G We may now refer to a two Judge Bench decision of this Court in Dr. Sadhna Devi and Ors. v. State of U. P. and Ors., [ 1997] 3 SCC 90. The court was concerned with the short-listing of eligible candidates who have got basic qualification for admission to post-graduate medical courses. Reservation of seats for SC and ST candidates in post-graduate courses was not challenged but providing zero percent marks for them for passing the entrance examination for admission to post-graduate course was questioned before the Bench. It

DR. PREETI SRIVASTAVA v. STATE (S.B. MAJMUDAR, J.] 315 was held that once minimum qualifying marks for passing the entrance examination for admission to postgraduate courses was a pre- requisite, in the absence of prescription of any minimum qualifying marks for reserved category of candidates, admitting such students who did not get any marks at the entrance test amounted to sacrificing merit and could not be countenanced. In para 21 of the Report, the following observations are made: B "In our view, the Government having laid down a system for holding admission tests, is not entitled to do away with the requirement of obtaining the minimum qualifying marks for the special category

- candidates. It is open to the Government to admit candidates belonging to the special categories even in a case where they obtain lesser marks than the general candidates provided they have got the minimum qualifying marks to fill up the reserved quota of seats for them." C

A cursory reading of these observations seems to indicate that once the minimum qualifying marks are prescribed for otherwise eligible candidates for short-listing them for admission to post-graduate courses, minimum qualifying D marks prescribed for general category candidates and reserved category candidates must be uniform. But then follows para 22 which relies on the decision of this court in State of Madhya Pradesh v. Kumari Nivedita Jain (supra) wherein prescription of lesser minimum qualifying marks in the entrance test for SC, ST and Other Backward Class candidates as compared to the minimum qualifying marks for general category candidates was approved. E Even in earlier para 18 it is observed that if in the entrance test special category candidates obtain lesser marks than general category candidates even then they will be eligible for admission within their reserved quota. These observations indicate that for reserved category of candidates there can be separate minimum qualifying marks. Thus, on a conjoint reading of observations in paras 18, 21 and 22 of the Report it has to be held that the ratio of the decision in Sadhna Devi's case (supra) is that even for reserved category candidates there should be some minimum qualifying marks if not the same as prescribed as bench marks for general category candidates. Thus, there cannot be any zero qualifying marks for reserved category candidates in the entrance test for admission to post-graduate courses. Hence, this judgment cannot be taken to have laid down that there cannot be lesser .' qualifying marks for reserved category candidates as compared to the general category candidates who are otherwise eligible and qualified for being considered for admission to post-graduate medical courses .

. That takes us to the consideration of a three Judge Bench decision of H

316 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A this Court in Postgraduate Institute of Medical Education & Research, Chandigarh and Ors., v. K.l. Narasimhan and Anr., [1997] 6 SCC 283. Ramaswamy, J., speaking for the Bench had mainly to consider two questions; 1) whether there can be reservation under Articles 15(4) and 16(4) of the Constitution in connection with only one post in a discipline; and 2) whether B reservation of seats in post-graduate courses was permissible as per Articles 14, 15 and 16 of the Constitution. Both the aforesaid questions were answered in the affirmative in favour of the schemes of reservations. So far as the question of reservation of seats when there is only one post in the discipline is concerned, decision rendered thereon by the three Judge Bench is expressly overruled by a Constitution Bench judgment of this Court in Postgraduate C Institute of Medical Education & Research, Chandigarh v. Faculty Association and Ors., [1998] 4 SCC l. However, so far as the second question is concerned, in the aforesaid judgment it was held that there can be reservation of seats in post-graduate courses as per the mandate of Articles 15(4) and 16(4). In the present proceedings, there is no dispute on this score. Hence D the said judgment on the second point is not required to be reconsidered. However, certain observations are found in para 21 of the report wherein Ramaswamy, J., has observed that diluting of minimum qualifying marks in an entrance test for entry into post-graduate courses for reserved category of candidates cannot be said to be unauthorised or illegal. It has been observed that: E "Equally, a student, admitted on reservation, is required to pass the same standard prescribed for speciality or a super speciality in a subject or medical science or technology. In that behalf, no relaxation is given nor sought by the candidates belonging to reserved categories. What is sought is a facility or opportunity for admission to the F courses, Ph.D., speciality or super speciality or high technology by relaxation of a lesser percentage of marks for initial admission than the general candidates. For. instance, if the general candidate is required to get 80% as qualifying marks for admission into speciality or super speciality, the relaxation for admission to the reserved candidates is of l 0 marks less, i.e., qualifying marks in his case would be 70%. A G doctor or a technologist has to pass the post-graduation or the graduation with the same standard as had by general candidate and has also to possess the same degree of standard. However, with the facility of possessing even lesser marks the reserved candidate gets admission .... " H Now, so far as these observations are concerned, as the court was not called

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 317

.. upon to consider the question whether prescription of lesser qualifying marks for SC,ST and other reserved category candidates for admission to post- graduate or super speciality courses in medicine was permissible, they are

- clearly obiter. So far as admission to super speciality courses are concerned, in the present reference we are not concerned with the said question, hence, we need not say anything about the same. However, so far as admission to post-graduate courses is concerned the question of providing of lesser qualifying marks for reserved category candidates for admission to these courses directly arises for our consideration. Hence, the obiter observations in the aforesaid case on this aspect do require consideration for their acceptance or otherwise. c As per the scheme of Entry 66 of List I and Entry 25 of List III of the Seventh Schedule of the Constitution of India, as discussed earlier goes, it is not possible to countenance the submission of Shri Salve, learned senior counsel for the Medical Council of India and other counsel canvassing the same view that the question of short-listing of eligible candidates who were otherwise duly qualified for being admitted to post-graduate courses in D Medicine is not within the domain of State authorities especially in view of the fact that the Parliament, in exercise of its legislative powers under Entry 25 of List III, has still not spoken on the point nor does the Indian Medical Council Act, 1956 enacted under Entry 66 of List I covers this question. Hence, while providing for entrance test as an additional requirement for eligible candidates for being short-listed in connection with admission to smaller number of seats available in post-graduate courses, it cannot be said that the State authorities in exercise of their constitutional right under Article 15(4) cannot give additional facilities to reserved category of candidates vis- a-vis their requirement of getting minimum qualifying marks at such entrance tests so that seats reserved for them may not remain unfilled and the reserved category of candidates do get adequate opportunity to fill them up and get post-graduate education on the seats reserved for them which in their tum would not detract from the availability of remaining seats for general category candidates. Thus, the observations in para 21 of the aforesaid judgment that there can be lesser qualifying marks for admission to post-graduale courses for reserved category of candidates cannot be found fault with. It is made clear that similar observations for admission to super speciality courses and the relaxation of minimum qualifying marks for candidates appearing at the entrance test for such courses are not being approved by us as we are not required to consider that aspect of the matter, as noted earlier. As it will be presently shown, once reservation of seats in post-graduate courses under H

318 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

DR. PREETI SRIVASTAVA v. STATE (S.B. MAJMUDAR, J.] 319 List III as well as Article 162 of the Constitution of India. A In view of the aforesaid discussion, it therefore, becomes clear that once seats in post-graduate medical courses are reserved for SC, ST and OBC candidates as per Article 15(4) of the Constitution the question as to how admission to limited number of general seats and reserved seats are to be regulated, will remain in the domain of the State authorities running these institutions. They can, theref9re, legitimately resort to the procedure of short- listing of otherwise eligible candidates. While undertaking this exercise of short-listing, the State authorities have to see how best in a given academic year the reserved seats and general category seats can be filled in by available and eligible candidates. The question is while undertaking the task of short- listing of available eligible candidates vis-a-vis limited number of seats that may be available for being filled in a given academic year, uniform qualifying bench marks for passing the entrance test should be prescribed for both the general category candidates as well as reserved category candidates or there can be lesser bench marks for the latter category of students. If due to non- availability of reserved category candidates who could ·obtain minimum qualifying marks prescribed for all the examinees whether there can be any legitimate dilution of minimum qualifying marks for these reserved category of candidates and if so, to what extent is the moot question. In the case of MR. Balaji & Ors. v. State of Mysore, [ 1963] Supp. I SCR 439, a Constitution Bench of this court was concerned with the extent of reservation which could be legally permissible under Article 15(4) of the Consfitution of India. Gajendragadkar, J., speaking for the Constitution Bench held that reservation of 68% seats in educational institutions was inconsistent with the concept of special provision authorised by Article 15(4). It was then observed as under : F "Reservation should and must be adopted to advance the prospects of weaker sections of society, but while doing so, care should be taken not to exclude admission to higher educational centres of deserving and qualified candidates of other communities. Reservations under Arts. 15(4) and 16(4) must be within reasonable limits. The interests of weaker sections of society, which are a first charge on the G States and the Centre, have to be adjusted with the interests of the community as a whole. Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case. The object of Art. 15(4) is to advance the interests of the society H

320 SUPREME COURT REPORTS [1999] SUPP. I S.C.R. .....: A as a whole by looking after the interests of the weaker elements in society. If a provision under Art. I 5(4) ignores the interests of society, that is clearly outside the scope of Art. 15(4). It is extremely unreasonable to assume that in enacting Art.15(4), Parliament intended to provide that where the advancement of the backward classes or the Scheduled Castes and Tribes were concerned, the fundamental rights B of the citizens constituting the rest of the society were to be completely and absolutely ignored. Considerations of national interest and the interests of the community and the society as a whole have already to be kept in mind."

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.) 321 selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors'."

Relying on these observations of the Constitution Bench Shri P.P. Rao and Shri Chaudhary, learned senior counsel appearing for the State of Madhya Pradesh, submitted that when there is a pool of eligible candidates who have all passed MBBS examination and are duly qualified and eligible to pursue post-graduate medical courses of study, and if in a given institution there are seats reserved for them, then the selection out of the reserved category candidates for filling up of these reserved posts can be done in a selective manner and that would permit reasonable dilution of the uniform qualifying marks at the entrance test as required to be obtained by the examinees concerned. This submission is amply borne out from the aforesaid observations of the Constitution Bench decision of this court.

However, a further question survives as to whether in diluting the minimum qualifying marks for reserved category of candidates who are otherwise eligible for being admitted to post-graduate courses on the seats reserved for them, whether Article 335 can get attracted. It is of course true that candidates appointed or admitted to post-graduate medical course have to work as Registrars, some posts of the Registrars .are fully paid posts while others may be stipendary resident's posts. However, it is not possible to accept the contention of learned counsel for the Special Leave Petitioners that admission to post-graduate courses would amount to recruitment to any posts. Concept of recruitment to posts is entirely different from the concept of admission to the course of study which in its turn may require the students concerned to take practical training by functioning as Registrars attached to wards where patients are treated. Even though such students work as Registrars during the course of study as post-graduate students, they essentially remain students and their working as Registrars would be a part of practical training. They would all the same remain trainee Registrars and not as directly recruited Registrars through any recruitment process held by the Public Service Commission for filling up full-fledged medical officer's posts. They work as

... Registrars as a part of post-graduate educational training only because they are admitted to the course of study as post-graduate students in co~cerned G

disciplines. It is easy to visualise that calling for applications from open market by advertisement for appointment of full-fledged medical officers to be recruited through the process of selection to be undertaken by Public Service Commission or other departmental selection committees will stand entirely on a different footing as compared to the process of admitting eligible students H

322 SUPREME COURT REPORTS [1999) SUPP. I S.C.R.

A .to post-graduate medical courses of studies. Thus, keeping in view the nature of working as trainee Registrars by admitted students to post-graduate medical courses it cannot be said that such admitted students are recruited to any I posts of Registrars. Consequently, Article 335 of the Constitution of India which has relevance while considering reservation of posts under Article 16(4) cannot have any direct impact on reservation of seats in educational institutions as permitted under Article 15(4). Learned counsel for the petitioners had invited our attention to a decision of two Judge Bench of this Court in S. Vinod Kumar and Anr. v. Union of India and Ors., [.1996] 6 SCC 580, wherein it was held that while providing for reservations to posts in the hierarchy by invoking powers under Article 16(4), making a provision for lower qualifying marks or lesser level of evaluation for members of reserved category was impermissible on account of Article 335 of the Constitution of India. The aforesaid decision obviously cannot be pressed in service while considering the question of giving facilities to reserved category of candidates for being admitted to the seats reserved for them in educational institutions wherein they can undertake courses of studies for ultimately obtaining post- D graduate degrees in medicine. In the case of 1-jay Kumar Singh and Ors. v. State of Bihar and Ors., (supra), this aspect of the matter has been correctly highlighted by Jeevan Reddy, J., speaking for the court in para 14 of the Report. It has been held therein that:

"We see absolutely no substance in the third submission of Shri E Singh. The argument taxes one's credulity. We are totally unable to appreciate how can it be said that admission to post-graduate medical course is a promotional post just because such candidate must necessarily pass MBBS examination before becoming eligible for admission to post-graduate medical course or for the reason that some F stipend - it is immaterial whether Rs. I 000 or Rs.3000 p.m. - is paid to post-graduate students. Admission to such course cannot be equated to appointment to a post and certainly not to an appointment by promotion. The argument is accordingly rejected." (Emphasis supplied) G It is obvious that only because a person who has passed MBBS examination and is made eligible for admission to post-graduate course is paid stipend during the course of his studies at post-graduate level, he cannot be said to have been appointed to the post of a Registrar. It may be that he has to work as a trainee Registrar during the course of his study to obtain practical H training but that is a part of the curriculum of studies and not because he is

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.) 323