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

appointed to the post of the Registrar after undergoing selection process whereunder a person from open market is recruited as a medical officer and whose recruitment as medical officer would be subject to rules and regulations and would not terminate only because his training period is over. In fact such a full-fledged medical officer has no training period. He has if at all probation period. In case of a trainee Registrar who has to work as such during the course of his studies as a post-graduate student on the other hand, his work as Registrar would be co-terminus with his passing the post-graduate examination as M.D. or M.S./M.D.S. as the case may be. He is also not liable to be transferred as a full-fledged Registrar, duly appointed as such, who is liable to be transferred due to exigencies of service. Thus, the working of such students during the course of study as residents whether on full payment or on stipendary payment would make no difference and they cannot be said to be holding any civil post in any hospital as full-fledged medical officers. Consequently, Article 335 of the Constitution of India cannot by itself be applied for regulating the admission of eligible reserved category students to post-graduate medical courses in the seats reserved for them under Article 15(4) of the Constitution of India. D The next question that falls for consideration that even assuming that Article 335 cannot be pressed in service while considering the question of admission of eligible and qualified candidates for enabling them to pursue courses of post-graduate medical studies the guidelines laid down by the E Medical Council of India pursuant to the regulations made under Section 33 of the Indian Medical Council Act, even though persuasive in nature and not • mandatory, can be totally by-passed or ignored by the State authorities concerned with short-listing of candidates for admission to limited seats available in medical institutions imparting post-graduate medical education? The answer obviously would be in the negative. The guidelines laid down by the Medical Council of India though persuasive have to be kept in view while deciding as to whether the concession or facility to be given to such reserved category of candidates should remain within the permissible limits so as not to amount to arbitrary and unreasonable grant of concessions wiping out the concept of merit in its entirety. Consequently, it cannot be said that even though short-listing of eligible candidates is permissible to the State authorities, while doing so, the State authorities can completely give a go-by to the concept of merit and can go to the extent of totally dispensing with qualifying marks for SC, ST and OBC candidates and can short-list them for being considered for admission to reserved categories of seats for them in post- graduate studies by reducing the qualifying marks to eve1; zero. That was H

324 SUPREME COURT REPORTS [1999] SUPP. l S.C.R.

A rightly frowned upon by this court in Sadhana Devi's case (supra) as that would not amount to short-listing, but on the contrary would amount to completely long listing of such reserved category candidates for the vacancies which are reserved for them and on which they would not be entitled to be admitted if they did not qualify according to even reduced bench marks or qualifying marks fixed for them. As seen earlier, keeping in view the ratio of the Constitution Bench of this court in MR. Balaji's case (supra) it must be held that along with the permissible reservation of 50% of seats for reserved category of candidates in institutions imparting post-graduate studies, simultaneously if further concessions by way of facilities are to be given for such reserved category of candidates so as to enable them to effectively occupy the seats reserved for them, such concessions by way of dilution of qualifying marks to be obtained at the entrance test for the purpose of short- listing, can also not go beyond the permissible limits of 50% of the qualifying marks uniformly fixed for other candidates belonging to general category and who appear at the same competitive test along with the reserved category of candidates. It is found from the records of these cases that qualifying marks at the entrance test for general category of candidates are fixed at 50%. In fact such is the general standard of qualifying marks suggested by the Medical Council of India even at the stage of entrance examination to MBBS course which is at the gross-root level of medical education after a student has completed his secondary education. Thus it would be proper to proceed on the basis that minimum qualifying marks for clearing the entrance test by way of short-listing for getting admitted to post-graduate medical courses uniformly for all candidates who appear at such examination should be 50% but so far as reserved category of candidates are concerned, who are otherwise eligible for competing for seats in the post-graduate medical courses, 50% reduction at the highest of the gen~ral bench marks by way of permissible concession would enable the State authorities to reduce the qualifying marks for passing such entrance examination up to 50% of 50% i.e. 25%. In other words, if qualifying marks for passing the entrance examination for being admitted to post-graduate medical courses is 50% for a general category candidate, then such qualifying marks by way of concession can be reduced for reserved category candidates to 25% which would be the maximum pennissible limit of reduction or deviation from the general bench marks. Meaning thereby, that a reserved category candidate even if gets 25% of the marks at such a common entrance test he can be considered for being admitted to the reserved vacancy for which he is otherwise eligible. But below 25% of bench marks for reserved category of candidates, no further dilution can be permitted. In other words, concession or facility for reserved category

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 325

of candidates can ~emain permissible under Article 15(4) up to only 50% of bench marks prescribed for general category candidates. The State cannot reduce the qualifying marks for a reserved category of candidates below 25% nor can it go up to zero as tried to be suggested by Shri P.P.Rao, learned senior counsel for the State of Madhya Pradesh as that would not amount to the process of short-listing but would in fact amount to Jong listing or comprehensive listing of such reserved category of candidates as seen earlier. B Any such attempt to further dilute the qualifying marks or bench marks for reserved category of candidates below 25% of the general passing marks would be violative of the provisions of Article 15(4) as laid down by the Constitution Bench in MR. Balaji's case (supra) and would also remain unreasonable and would be hit by Article 14 of the Constitution of India·. C Within this sliding scale of percentages between 25% and 50% passing marks appropriate bench marks for passing the entrance test examination can be suitably fixed for SC/ST and OBC candidates as exigencies of the situation may require. But in no case the qualifying marks for any of these reserved categories of students can go below 25% of the general passing marks. Any reserved category candidate who gets less than 25% of marks at the entrance examination or less than prescribed reduced percentage of marks for the concerned category between 50% and 25% of passing marks cannot be called for counselling and has to be ruled out of consideration and in that process if any seats reserved for reserved categories concerned remains unfilled by candidates belonging to that category it must go to the general category and can be filled in by the general category candidate who has already obtained 50% or mor_e marks at the entrance examination, but who could not be accommodated because of lesser percentage of marks obtained by him qua other general category candidates in the limited number of seats available to them in a given institution in post-graduate studies. F As we will presently show even if minimum passing marks in the entrance test for admission to post-graduate courses is either reduced to 25% uniformly .for all the candidates or is reduced and diluted only for reserved category of candidates, the net result would remain substantially the ·same. This aspect can be highlighted by taking an illustration. Suppose there are six seats in a given post-graduate medical course, then applying the ratio of 50% permissible reservation of seats for reserved category of candidates like SC/ST and OBCs three seats get reserved, one each for SC, ST and OBC while three seats will remain available to general category of candidates passing the common entrance test. On the basis of this illustration let us take a hypothetical case of 13 eligible candidates who have passed basic MBBS examination and H

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

A are duly qualified to compete for the six seats in a given course of post- graduate study. These 13 candidates undertake the same entrance test and all of them as a result of the said test obtained marks as under : A 75 out of I 00, B 70, C (SC) 65, D 60, E (SC) 55, F 5 I, G 50, H (OBC) 48, 142, J (ST) 40, K 35, L 30, M 25, N (SC) 2 I. In the aforesaid illustration C, E and N are B SC candidates, is OBC and J is a ST candidate. Now if 50% passing marks are uniformly applied to all of them as tried to be suggested by learned counsel for the petitioners, the following picture will emerge :

Situation No. 1:

C Seat numbers I ,2, and 3 are general seats, 4 reserved for SC, 5 reserved for ST and 6 reserved for OBC.

If 50% passing marks are uniformly applied to seat nos. I ,2,3,4,5 & 6 : Seat no. I will go to A, 2 to B, 3 to C (SC), 4 to E (SC), seat nos.5&6 will not get filled in by the reserved category candidates as there are no ST or OBC D candidates who have obtained 50% and more marks. These two seats which remain unfilled will go to D and F general category candidates who have obtained more than 50% marks, but who could not be accommodated in the seats available to general category of candidates as the last candidate in the general category who got admission though SC, was having 65% marks. Thus the situation would be the two seats i.e. seat nos. 5 and 6 which are reserved E for ST and OBC and were otherwise not available to general category of candidates would not go to eligible and qualified ST and OBC candidates namely, Hand J even though they had obtained MBBS degrees and had the basic qualification and eligibility for being admitted to the seats reserved for them. That may affect the real purpose underlying reservation under Article 15(4). F Situation No.2:

We may now take the alternative situation for consideration : If the minimum qualifying marks are reduced to 25% for all categories of candidates to the rock-bottom permissible limit including SC/ST and other reserved category cand'idates, then the following picture would emerge : Seat no. I will go to A, seat no.2 will go to B, seat no.3 will go to C(SC), seat no.4 which is reserved for SC candidate will go to E, seat no.5 which is reserved for ST will go to J, seat no.6 which is reserved for OBC will go to H. All six seats will be filled up by A,B, C,E,J & H. Thus even ifthe minimum passing marks are uniformly reduced to 25% which is the permissible rock- bottom as seen

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.) 327 earlier the general category candidates will get the same seats which would have been available to them even ifthe minimum qualifying marks for admission woulJ have been uniformly kept at 50% for all candidates at the entrance test. But what will happen is, that by reduction of these qualifying marks to 25% all the reserved category seats 4 to 6 will get filled in by otherwise eligible and qualified reserved category candidates E,J and H and there will remain no occasion for making any of such seats available to left out general category B candidates like D and F for whom they were not meant even otherwise and reservation of seats under Article 15(4) would get fully fructified.

Situation no. 3:

Now let us assume that for general category candidates minimum passing C marks at the entrance test are kept at 50% but for reserved category candidates the passing marks are reduced to the permissible rock-bottom limit of 25%. If that happens, the result would remain the same, namely, as found in situation no.2, i.e. A will be admitted to seat no.1, B will be admitted to seat no. 2, C (SC) will be admitted to seat no.3, E will be admitted to seat no.4 D reserved for SC, J will be admitted to seat no.5 reserved for ST and H will be admitted to seat no.6 reserved for OBC. Then the net result would be that ... because of the limited deviation of minimum qualifying marks only for reserved category candidates, E, J & H who would have otherwise been admitted to reserved category seats even if there was universal and uniform reduction of qualifying marks at 25%, will get the same benefit without affecting the admission of general category candidates.

Situation No. 4:

As minimum qualifying marks for reserved category of candidates are kept at 25% and are not reduced below the same, candidate N who is a SC candidate and who has obtained only 21 % passing marks at the entrance test will be totally ruled out of consideration, but even if the qualifying marks are reduced to below the pennissible limit of 25%, N will not get any seat as the seat reserved for such candidates is only one being no. 4 in the said course of study and is already occupied by E who is a more meritorious SC candid11te G qua N.

Situation No. 5:

Now let us consider a situation wherein E a SC candidate, who is entitled to reserved category seat no.4 and has excluded who is a general H

328 STATE v. V.G. WARHADE [M. JAGANNADHA RAO]

A category candidate who has obtained more marks than him because of such permissible reservation of a seat for him, for any reason does not join the course of study and his seat becomes vacant, then in such a situation, the following picture may emerge in different categories of cases where minimum passing marks are fixed differently :

B (i) In case is not available and 50% minimum passing marks are fixed for all categories of candidates then seat no. I will go to A, seat no.2 will go to B, seat no.3 will go to C, seat no.4 would not go to N who is the next eligible SC candidate who has qualified for being admitted but has got less than passing marks at the entrance test. That seat will remain unoccupied and will c go to the general category candidate D. Seat no. 5 which is reserved for ST person also cannot go to J as he has got less than the passing marks. Seat no.5 will therefore, go to F. Seat no.6 reserved for OBC also will not go to H as he has got only 48% marks, less than the minimum passing marks. His seat will D go to general category candidates who are in the waiting list and will be offered to G who has just got the passing marks. Thus in the absence of availability of E the six seats will go as under: A,B,C,D,F & G. Thus all the reserved category seats will remain unfilled by reserved category candidates and will be added to general category seats. Result will be reservation under Article E 15(4) will totally fail.

(ii) Now let us take another category of situation where minimum passing marks are fixed at 25% for all candidates. In that case even if is not available then the first three general category seats will go to A,B,C and the 4th seat reserved for SC candidate will remain unfilled as the next available eligible SC candidate is N who has got less than 25% minimum marks. So his seat will go to the general category candidate who is in the waiting list namely, D. While seat no.4 reserved for ST candidate will go to J and seat no.6 reserved for OBC candidate will go to H. Therefore, G the net result will be as under: I to 6 seats will go to A,B,C,D,J &H.

(iii) The same result would follow for general category candidates even ifthe minimum passing marks are fixed at 50% and for the reserved category candidates the minimum qualifying marks are H reduced to 25%. Then the first three seats will go to A,B,C, and

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR,J.] 329

- seat no.4 not occupied by E a SC candidate cannot go to N the next SC candidate who has got less than 25% marks. It will be occupied by D from the general category candidates. While seat no.5 will go to J a ST candidate who has more than 25% marks A

and seat no.6 will go to H who is a OBC candidate having got 48% marks. Thus the six seats w!ll go to A,B,C,D,J & H. Thus it is clear that where the minimum passing marks are uniformly B reduced for all candidates or they are reduced only for backward class candidates but to the same extent, the result regarding occupation of these seats by general category candidates and reserved candidates would remain the same if E does not occupy the seat available to him as an SC candidate. . C (iv) If for any reason the minimum qualifying marks for reserved category candidates are still further reduced to 20% then in the absence of availability· of a SC candidate E, the next SC candidate N having 21 % may get it and occupy the seat reserved for a SC candidate. In such a situation the following picture will emerge: D I to 3 will go to A,B,C; seat no.4 reserved for SC candidate will go to N and seat no.5 will go to ST candidate J and seat no.6 reserved for OBC candidate will go.to H. Resultantly no seat will be left for being made available to general category candidate and he will _get excluded. But as we have seen earlier, if concession or dilution of minimum qualifying marks at the entrance test for admission to post-graduate medical courses is kept within the permissible limit of 50% dilution and can go down only up to 25% minimum qualifying marks for reserved category candidates then N in no case would get in to displace who is a general category candidate and who had an opportunity to get in vis- F a-vis the seat reserved for SC candidate as the eligible SC candidate is not available at a given point of time. The aforesaid illustration shows that as C (SC candidate) has got the seat in general category on his own merit his occupancy is not to be considered while granting admission to the seat reserved for SC G candidate as held by a Constitution Bench decision of this Court in R. K. Sabharwal and Ors. v. State of Punjab and Ors., [ 1995] 2 sec 745.

We may at this stage refer to decision of a three Judge Bench of this court in Dr. Pradeep Jain and Ors. V. Union of India and Ors., ( 1984] 3 sec H

330 SUPREME COURT REPORTS [1999] SUPP. l S.C.R.

A 654, wherein in the context of reservation in medical education courses on the basis of territorial or institutional preference, Bhagwati, J., speaking for the court in para 22 of the Report observed as under :

'But as far as admissions to post-graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to B provide for any reservation based on residence requirement within the State or on institutional preference. There the excellence cannot be compromised by any other considerations because that would be detrimental to the interest of the nation'."

C It is of course true that the aforesaid observations were made not with reference to any reservations as per Article 15(4). However, while considering the extent of dilution of minimum passing marks in the entrance examination for admission of reserved category candidates to post-graduate medical courses, the permissible limit below which the concessions available to reserved category of candidates cannot be permitted to go, would" require serious D consideration, otherwise merit would be totally by-passed and jeopardised. It is also pertinent to note that in the aforesaid decision the permissible limit of reservation by way of institutional preference was held to be only up to 50% of the total available seats.

E While dealing with the scope and ambit of reservation under Article 15(4) in post-graduate courses, which of course is not in challenge before us, we have also to keep in view, ·the observations of the nine Judge Bench of this Court in Indra Sawhney's case (supra). In para 146 of the Report at page 401 Pandian, J., concurring with the main majority decision rendered by Jeevan Reddy, J., observed that : F 'The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore, a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary. Such considerations raise controversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of societal discrimination require compensatory treatment. Needless to emphasise that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 331

result which establishes an equilibrium between two sections placed unequally."

Same learned Judge at pages 402-403 of the Report considered a passage by Allan P. Sindler in his book Bakke, Defunis and Minority Admissions (The Quest for Equal Opportunity) whi~h dealt with a running race between two persons i.e. one who has his legs shackled and another not. In such a race between unequals it was found necessary to remove the inequality between the two runners by giving compensatory edge to the shackled runner. The learned Judge also noted the submission of learned counsel for the petitioners

- who demonstrably explained that as unwatered seeds do not germinate, unprotected backward class citizen.swill whither away.

In the earlier Constitution Bench judgment in MR. Balaji v. State of C

Mysore, (supra), Gajendragadkar, J., at page 467 of the Report, this Court made the following pertinent observations with reference to Article 15(4) :

"When Art.15(4) refers to the special provision for the advancement of certain classes or scheduled castes or scheduled tribes, it must not be ignored that the provision which is authorised to be made is a special provision; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art.15(4) authorises special provision to be made'."

We may also refer to the contention of learned senior counsel Shri Rajendra Sachar, placing reliance on page 474 of the Report in M.R.Balaji's F case (supra) to the effect that "the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration and that it was undoubtedly the effect of Article 335. Therefore, what is true in regard to Art. 15(4) is equally true in regard to Art.16(4)." These observations, strongly G relied upon by Shri Sachar for importing the impact of Article 335 on the reservations under Article 15(4) cannot be treated to be of any real assistance to him. The aforesaid observations were made by the Constitution Bench while considering the reasonableness of reservation of seats in educational institutions and for highlighting the point that such reservation of seats - should not be more than 50% and reservation of 68% of seats was not within H

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

A the permissible limit of special provision under Article 15(4). From these observations, it cannot necessarily follow that admission to such reserved seats can tantamount to appointments to any posts to which Article 335 would get directly attracted. While considering the permissible limits of dilution of minimum passing marks for reserved category candidates appearing at the entrance test for being called for counselling for admissions to postgraduate medical courses, we have to keep in view the salient fact that different universities examining students for obtaining MBBS degrees on the basis of the same syllabus may have different yardsticks and standards of assessment of papers and, therefore, students passing their MBBS examinations from different universities cannot ipso facto be treated to be equally meritorious and consequently, the common entrance test for admission to post-graduate courses cannot be said to be totally uncalled for. However, because reservation of seats at post-graduate educational level is countenanced, as a logical corollary, to make effective the reservations and with a view to seeing that the reserved category students do not get excluded from getting admitted as far as possible, provision for lesser qualifying marks for reserved category candidates at the common entrance test cannot be said to be totally illegal. However, with a view to seeing that crutches provided to such weaker sections of society do not cripple them for ever, the dilution of passing marks at the common entrance test at which such reserved category candidates appear after obtaining their MBBS degrees from different universities cannot be totally arbitrary and must have a permissible rock-bottom limit below which it cannot go and that is why it is reasonable to hold that when reservation of seats under Article 15(4) in post-graduate medical courses cannot exceed 50% as held by the Constitution Bench in M.R. Balaji's case (supra) then on the same line of reasoning additional facilities to be given to such reserved category candidates for being admitted to the seats reserved for them in the post-graduate medical courses also should not exceed the permissible limit of 50% dilution from the general cut-off marks provided uniformly for general category of candidates competing for admission to such limited number of · seats at post-graduate level. While dealing with the question of dilution of minimum passing marks for reserved category of candidates appearing at the entrance tests for admission to post-graduate courses if has to be kept in view that general category students form a separate class as compared to reserved category candidates for whom seats are reserved under Article 15(4). Once that is kept in view, as a logical corollary, it must follow that to make such reservations effective appropriate dilution of the minimum cut-off marks for students belQ11ging to the reserved category would become permissible subject to the rider that such dilution should not be so unreasonable as to

DR. PREETI SRIVASTAVA v. STATE [S.B. MAJMUDAR, J.] 333

go out of the beneficial protective umbrella of Article 15(4) as seen earlier. If A that happens it would squarely get hit by Article 15(1) read with Article 14 of the Constitution of India. However, within such permissible limits such dilution for different reserved categories of candidates who may be given benefit of sliding scales of reduced passing marks as required by exigencies of situation would remain legal and valid. In this connection, observations in the Constitution Bench judgment of this court in Chitra Ghosh and Anr. v. Union ofIndia and Ors., (supra), wherein Grover, J., spoke for the Constitution Bench as to which we have made a detailed reference earlier are required to be kept in view. To recapitulate, it has been held that selection of eligible candidates for admission to medical courses can be made by classifying such candidates category-wise keeping in view the services from which they are drawn. The aforesaid decision of the Constitution Bench was directly concerned with the admissions in medical colleges. It would squarely get attracted while deciding the present controversy. It is obvious that if for admission to a medical education course at gross-root level ofMBBS, different rules for selecting candidates from different sources from which they are to be drawn are countenanced, then even at the stage of admission at post- D graduate level, the ratio of the aforesaid decision of the Constitution Bench would squarely get attracted and would permit separate treatment for students drawn from different sources. It is of course true that in the said case, the Constitution Bench was concerned with the nominations made by the Central Government on seats reserved for such nominees. However. that would not whittle down the decision of the Constitution Bench to the effect that while imparting education in theory and practice in medical courses of study, the source from which candidates are drawn can be a relevant classificatory criterion and there can be different rules in the matter of selection of candidates drawn from different sources. It is axiomatic that reserved category candidates competing for being selected to the seats reserved for them in post-graduate medical courses as per the mandate of Article 15(4) of the Constitution have to compete inter se with their own colleagues from the same categories and not necessarily have to compete with general category candidates who form entirely a different class. Once such classification is countenanced, as a necessary concomitant, separate provision for reserved category of candidates forming a separate class for which reservation of seats in post-graduate medical courses is permitted cannot be faulted and hence the dilution of minimum qualifying marks for reserved category of candidates cannot by itself be treated to be unauthorised or illegal from any view point. Otherwise the very purpose of reserving seats for suc..h class of candidates at post- graduate level of medical education would be denuded on its real content and H

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

A the purpose of reservation would fail. The seats reserved for such category of persons would go unfilled and will swell the admission of general category of candidates for whom these seats are not at all meant to be made available, once the scheme of reservation of seats under Article 15(4) is held applicable.

In the light of the aforesaid discussion, the following conclusions B emerge: '

(I) It is permissible to the State authorities which are running and/ or controlling the medical institutions in the States concerned to short-list the eligible and qualified MBBS doctors for being considered for admission to post-graduate medical courses in c these institutions. For the purpose of such short-listing full play is available to the State authorities to exercise legislative or executive power as the field is not occupied till date by any legislation of the Parliament on this aspect in exercise of its legislative powers under Entry 25 of List III of the Constitution D of India and this topic is also not covered by any legislation under Entry 66 of List I of the Constitution. (2) The Indian Medical Council Act and the regulations framed thereunder do not cover the question of short-listing of admission of eligible and duly qualified MBBS doctors who seek admission to different medical institutions imparting post-graduate education run or controlled by the States concerned. (3) The regulations and guidelines given by the Medical Council of India in this connection, though persuasive and not having any binding force, cannot be totally ignored by the State authorities but must be broadly kept in view while undertaking the exercise of short-listing of eligible candidates for being admitted to post- graduate medical courses. (4) While short-listing candidates having basic qualifications of MBBS for being considered for admission to limited number of vacancies in post-graduate courses available at the medical institutions in the Sates, it is permissible for the State authorities to have common entrance tests and to prescribe minimum qualifying marks for passing such tests to enable the examinees who pass such test to be called for counselling. That would be in addition to the basic qualification by way of MBBS degree. H The performance of the candidate concerned during the time he

DR. PREETI SRIVASTAVA v. STATE (S.B. MAJMUDAR, J.] 335

or she undertook the study at MBBS level for ultimately getting the MBBS degree also would be a relevant consideration for the State authorities to be kept in view.

(5) It is equally permissible for the State authorities while undertaking the aforesaid exercise of short-listing to fix 50% minimum qualifying marks at the entrance test for general category of candidates and to dilute and prescribe lesser percentage of passing marks for reserved category of candidates as exigencies

- of situation may require in a given year but in no case the minimum qualifying marks as reduced for reserved category of candidates can go below 25% of passing marks for such reserved category of candidates. In other words, a play is available to the C

State authorities to prescribe different minimum passing marks for SC/ST and OBC eligible candidates between 50% and 25% as the prevailing situation at a given point of time may require. In such categories for SC, ST & OBC candidates different diluted passing marks can be prescribed, but this exercise has to be within the permissible limits of less than 50% & up to minimum 25% passing marks for each of such reserved categories. No eligible candidate belonging to reserved category who does not obtain minimum percent of passing marks as diluted for such category of candidates by the State authorities can be considered to be eligible for undertaking post-graduate medical courses in a given year for which he has offered his candidature and if any seat reserved for such categories of candidates remain unfilled due to non-availability of such eligible reserved category candidate to fill up such seat, then the said seat would go to general category candidates and will be available in the order of merit in the light of marks obtained by such wait-listed general category candidates having obtained requisite passing marks who otherwise could not get admitted due to non-availability of general category seats earlier. The ratio of various decisions of this court considered hereinabove will have to be implemented in the light of the aforesaid conclusions to which we have reached. The aforesaid practice has to be followed and should hold the field from year to year so long as the Parliament does not pass any legislation for regulating admission to post-graduate medical courses either by separate legislation or by appropriately amending Indian Medical Council Act by empowering the H

336 SUPREME COURT REPORTS (1999) SUPP. I S.C.R. r A Medical Council of India to prescribe such regulations. r, The writ petitions and the civil appeal arising out of the special leave petition as well as the review petitions would stand disposed of accordingly in the aforesaid terms and the judgments rendered by the High Courts will stand modified and the impugned orders passed by the State authorities will also stand set aside accordingly. However, the present judgment will operate purely prospectively and will not affect the admissions already granted by the concerned authorities in the post-graduate medical courses prior to the date of this judgment. In other words, the State authorities will have to comply with the directions contained in this judgment and put their house in order for regulating the admissions to post-graduate medical courses starting hereinafter in the medical institutions concerned.

S.M. Petitions allowed.