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Thursday, January 15, 2015

CIVIL APPEAL NOS. 297-298 of 2015 (Arising out of S.L.P. (C) Nos.13121-13122 of 2011) Sudhir N. & Ors. ...Appellants Versus State of Kerala & Ors. ...Respondents

                                                   REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                   CIVIL APPEAL NOS.   297-298     of 2015
             (Arising out of S.L.P. (C) Nos.13121-13122 of 2011)


Sudhir N. & Ors.                             ...Appellants

Versus

State of Kerala & Ors.                       ...Respondents

                                    With

                   CIVIL APPEAL NOS.   299-300    of 2015
             (Arising out of S.L.P. (C) Nos.11597-11598 of 2011)


                      CIVIL APPEAL NO.  301    of 2015
                (Arising out of S.L.P. (C) No.11606 of 2011)


                    CIVIL APPEAL NOS.  302-303   of 2015
             (Arising out of S.L.P. (C) Nos.13123-13124 of 2011)


                   CIVIL APPEAL NOS.   304-305    of 2015
             (Arising out of S.L.P. (C) Nos.13126-13127 of 2011)


                                     AND

                   CIVIL APPEAL NOS.   306-307    of 2015
             (Arising out of S.L.P. (C) Nos.13130-13131 of 2011)


                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.

2.    These appeals arise out of a judgment and order dated 30th March  2011
passed by the High Court of Kerala at Ernakulam in  Writ  Petitions  No.1014
of 2009 and 2610 of 2010 filed by the respondents  whereby  the  High  Court
has allowed the said petitions with the  direction  that  selection  of  in-
service medical officers for post-graduate medical education  under  Section
5(4) of the Kerala  Medical  Officers'  Admission  to  Postgraduate  Courses
under Service Quota Act, 2008  (Kerala  Act  29  of  2008),  shall  be  made
strictly on the basis of inter se  seniority  of  the  candidates  who  have
taken the common entrance test for post-graduate medical education and  have
obtained the minimum eligibility bench mark in that test  in  terms  of  the
Regulations framed by the Medical Council of India.

3.    Forty percent of the seats available in the State of Kerala for  post-
graduate medical admission are reserved for in-service  doctors  serving  in
the  Health  Service  Department,  Medical  College  lecturers  and  doctors
serving in the Employees State Insurance Department of  the  State.  As  per
the practice prevalent before the  enactment  of  the  impugned  legislation
admissions against such reserved seats were made on the basis  of  seniority
of in-service candidates in each category.  Post Graduate Medical  Education
Regulations of Medical Council of India, 2000, however,  made  it  mandatory
for all candidates seeking admission to  post-graduate  medical  courses  to
appear for a  common  entrance  examination.  The  Regulations,  inter-alia,
provide that candidates who appears in the common entrance  examination  and
secure 50% in the case of general category candidates and 40%  in  the  case
of  SC/ST  candidates  alone  shall  be  qualified   for   such   admission.
Consequently, even in-service candidates had to appear and  qualify  in  the
common entrance examination.  Representations appear to have  been  received
by  the  Government  from  many  quarters  pointing  out   that   in-service
candidates who were working around the clock for the benefit of  the  public
even in remote rural areas could hardly find time to update their  knowledge
and compete with the general merit candidates so as to  score  the  required
50% marks in the common entrance examination and to  qualify  for  admission
to  any  post-graduate  course.  Considering  these   representations,   the
Government decided to bring  a  legislation  to  overcome  the  difficulties
faced by in-service candidates in the matter of getting admission  to  post-
graduate courses.  The legislation envisaged a quota  for  medical  officers
in the service of the State Government on such terms and conditions  as  may
be prescribed. More importantly, in terms of Section 3 of Act No.29 of  2008
selection of  medical  officers  to  the  post-graduate  courses  under  the
service quota was to be made  by  a  Selection  Committee  called  the  Post
Graduate Course Medical Selection Committee constituted under Section  4  of
the said Act. Section 5 of the Act empowered the  Government  to  set  apart
seats not exceeding 40% of the total seats available in the State quota  for
any academic year for selection of medical officers  under  'service  quota'
for admission to post-graduate medical courses in medical  colleges  of  the
State.   Sub-section  (2)  of  Section  5   provided   that   the   academic
qualifications for admission to the post-graduate courses shall be  an  MBBS
degree with a minimum of 50% marks besides other qualifications that may  be
prescribed.  Sub-section  (4)  of  Section  5  required  the   Post-graduate
Selection Committee to finalise the selection list  directly  based  on  the
seniority of the  in-service  medical  officers  and  following  such  other
criteria as may be prescribed. Section 6 provided  for  grant  of  weightage
for 'rural area service' or 'difficult rural area service' as the  case  may
be, in the matter of selection of the candidates for admission. Sections  3,
4, 5 and 6 to the extent they  are  relevant  may  be  re-produced  at  this
stage:

"3. Selection of Medical  Officers  for  admission  to  Postgraduate  Course
Under the Service.

Quota.- Notwithstanding anything contained in  the  Indian  Medical  Council
Act, 1956 (Central Act 102  of  1956)  or  any  rule  or  regulation  issued
thereunder or in any judgment, decree or order of any  court  or  authority,
the selection of Medical Officers for admission to  Postgraduate  Course  of
study in the State under the service quota shall  be  made  only  under  the
provisions of this Act.

4. Constitution of Post Graduate Course Medical Selection Committee -

(1) The Government may constitute a Postgraduate Course Selection  Committee
for the purpose of selection of Medical Officers  under  the  service  quota
with the following ex-officio members, namely:-

(a) The Secretary to  Government,  Health  and  Family  Welfare  Department,
Government of Kerala;

(b) The Director of Medical Education;

(c) The Director Health Services;

(d) The Director of Insurance Medical Services;

(e) The Joint Director of Medical Education (M);

(f) The Joint Director of Medical Education (G).

(2)   The Secretary to Government,  Health  and  Family  Welfare  Department
shall be the Chairman and the Director of Medical  Education  shall  be  the
Convenor of the Committee.

(3)   The Committee shall discharge its functions in such manner as  may  be
prescribed.

5. Procedure for selection. -

(1) The Government may set apart seats not exceeding forty  percent  of  the
total seats available to state quota in an academic year, for  selection  of
Medical Officers under service quota considering  their  service  under  the
Government for admission to Post Graduate Medical  Courses  in  the  Medical
Colleges of the State in such manner as may be prescribed.

(2) The academic qualification for admission to  the  Post  Graduate  Course
shall be M.B.B.S. degree with minimum fifty  percent  marks  and  the  other
qualifications shall be such as may be prescribed.

(3) The details of eligibility  for  admission,  the  duration  of  courses,
allotment, fee to be paid, reservations of  seats  and  such  other  details
shall be published every year in the prospectus before the  commencement  of
admission.

(4)  The  Postgraduate  Course  Selection  Committee  shall   finalise   the
selection list strictly based on the seniority in  service  of  the  Medical
Officers and following such other criteria as may be prescribed.

(5) The selection list finalised under sub-section (4)  shall  be  published
by the  Post  Graduate  Selection  Committee  for  the  information  of  the
applicants.

6. Weightage for rural service. - Every Medical Officer who has 'rural  area
service' or 'difficult rural area service' as the case may be, in the  State
shall be given weightage in selection in such manner as may be  prescribed."




4.    Aggrieved by the above legislation, Writ  Petitions  No.1014  of  2009
and  2610  of  2010  were  filed  by   the   respondents   challenging   the
constitutional validity of Section 5(4) of the Act in so far as it  provides
that 'admission to post-graduate in-service  quota  shall  be  only  on  the
basis of seniority'. The petitioners also questioned the  validity  of  some
of the provisions of the prospectus for  the  relevant  year  to  the  post-
graduate admission in the service quota but gave up  that  prayer  when  the
petitions eventually came up for hearing confining the relief prayed for  in
the writ petition to a declaration as  to  the  validity  of  the  statutory
provisions under challenge.

5.    The primary ground on which the  challenge  to  the  validity  of  the
legislation  was  mounted  by  the  writ  petitioners  was  that  the  State
legislature could not enact a law that would make  selection  for  admission
to the post-graduate courses dependent solely on the seniority  of  the  in-
service  candidates  without   prescribing   the   minimum   conditions   of
eligibility  for  the  candidates  concerned.  Competence   of   the   State
Legislature to enact Section 5(4)  of  the  impugned  Legislation  was  also
called in question  on  the  ground  that  the  said  piece  of  legislation
violated the  regulations  framed  by  the  Medical  Council  of  India  the
authority competent to do so under the Medical Council of India  Act,  1956.
It was argued that the Post-Graduate  Medical  Education  Regulations,  2000
provided the minimum requirements that all the candidates  have  to  fulfil.
Inasmuch as  the  State  enactment  contrary  to  the  said  regulation  and
requirement postulates that selection of candidates shall be  made  only  on
the basis of seniority it was  beyond  the  legislative  competence  of  the
Kerala State Legislature.  The  Indian  Medical  Council  Act  and  the  MCI
Regulations framed  under  the  same  were,  argued  the  writ  petitioners-
respondents herein, referable  only  to  Entry  66  of  List  I  of  Seventh
Schedule. Any legislation enacted by the State Legislature  in  exercise  of
its power under Entry 25 in List III was subject to any law to the  contrary
passed by the Parliament in exercise of its power under Entry 66 of List  I.
That the State Act was reserved for consideration of the President and  that
it has received the assent of His Excellency in terms of Article  254(2)  of
the Constitution did not save the legislation from the vice  of  legislative
incompetence.

6.    The State of Kerala contested the petitions and,  inter  alia,  argued
that the State enactment was  in  pith  and  substance  different  from  the
Indian Medical Council Act and the MCI Regulations. The State  attempted  to
justify the legislation under Entry 25 of List III and argued that  it  does
not in any manner conflict with Entry 66 of List I.  It was argued that  the
dominant purpose of the legislation under challenge ought to  be  seen,  and
that purpose did not, according to the State, in any way, impinge  upon  the
Central legislation so as to call for any interference by the Court.

7.    On behalf of the in-service doctors an attempt  was  made  to  justify
the enactment on the ground that, but, for a provision  permitting  a  quota
for service aspirants for admission to post-graduate  courses  it  would  be
difficult to compete with fresh graduates who  may  be  academically  better
off than candidates who have since long given up their studies  and  devoted
themselves entirely to the service of the  people  at  large  some  of  them
inhabiting in remote and difficult areas of the State.

8.    The Medical Council of India who was arrayed as a  respondent  in  the
writ  petitions,  however,  supported  the  case  of  the   writ-petitioners
(respondents herein) to point out that  the  MCI  Regulations  categorically
postulate that students for post-graduate course can  be  selected  only  on
the basis of their inter se academic merit.  Any other method  of  selection
is, therefore, by necessary implication forbidden.  Inasmuch  as  the  State
Legislation has attempted to introduce another  method  of  selection  which
has the effect of subverting the MCI Regulations the impugned enactment  was
bad.

9.    The High Court of Kerala has, by the judgment and  order  impugned  in
these appeals, agreed in principle that admission to  post-graduate  courses
can be made only on the basis of inter se seniority provided the  candidates
appear in the common entrance examination and qualify. It has  relying  upon
the decisions of this Court in Dr. Preeti Srivastava & anr.   v.   State  of
M.P. & ors. (1999) 7 SCC 120  and  State of  M.P.  &  Ors.    v.   Gopal  D.
Tirthani & Ors. (2003) 7 SCC 83 held that the prescription  of  an  entrance
examination with minimum eligibility marks to be  secured  in  the  entrance
test for post-graduate course is within the field covered  by  Entry  66  of
List I and that the State Legislature cannot, by reference to  Entry  25  of
List III, make any law that may have the  effect  of  encroaching  upon  the
field occupied by Entry 66 of List I.  The High Court observed:

"The  principles  of  law  emanating  from  the  above  include   that   the
prescription as to  the  requirement  of  an  entrance  examination  with  a
minimum eligibility bench mark to be acquired  in  that  entrance  test  for
postgraduated medical education is within the field covered by Entry  66  in
List I and the competence of the  State  Legislature  to  make  a  law  with
reference to Entry 25 in List III would not enable it to make any  such  law
encroaching  on  the  field  occupied  by  Entry  66  in  List  I.  The  MCI
Regulations framed under Section 33 of the IMC Act  is  insulated  from  any
contradiction by any State legislation. Therefore, the State cannot  make  a
law  doing  away  with  the  requirement,  for  in-service  candidates,   to
participate in the  common  entrance  test  for  admission  to  postgraduate
medical  courses  and  obtaining   the   minimum   eligibility   requirement
prescribed by the MCI in the Regulations."



10.   The High Court  then  held  that  inasmuch  as  Section  5(4)  of  the
impugned enactment provides for the preparation of  a  select  list  of  in-
service medical officers based on seniority, such selection  shall  be  made
from among in-service medical officers only who have appeared in the  common
entrance test of post-graduate medical education and  obtained  the  minimum
eligibility bench mark in that test in terms of the  MCI  Regulations.   The
High Court held:

"The conclusion is that the provision in Section 5(4) of the State Act  that
the select list of in-service  medical  officers  for  postgraduate  medical
education shall be strictly on the basis of  seniority  is  subject  to  the
requirement that such selection can  be  made  only  from  among  those  in-
service medical officers who have undergone the  common  entrance  test  for
postgraduate medical education and have  obtained  the  minimum  eligibility
bench mark in that  test  in  terms  of  the  MCI  Regulations.   It  is  so
declared. These writ petitions are allowed to that extent."



11.   The present appeals assail the correctness  of  the  above  order  and
judgment.

12.   Regulation 9 of the Regulations framed under the MCI Act, inter  alia,
provides that admission to  post-graduate  medical  courses  shall  be  made
strictly on the basis of inter se academic  merit  of  the  candidates.  The
Regulation further stipulates the methodology for determining  the  academic
merit of the candidate.  It reads:

"Selection of Postgraduate Students

(1)  (a)  Students  for  Postgraduate  medical  courses  shall  be  selected
strictly on the basis of their inter-se Academic Merit.

(b) 50% of seats in Post Graduate  Diploma  Course  shall  be  reserved  for
Medical Officers in the Government service, who have  served  for  at  least
three years in remote and difficult areas. After acquiring the  PG  Diploma,
the Medical Officers shall  serve  for  two  more  years  in  remote  and/or
difficult areas.

(2) For determining the "Academic  Merit",  the  University/Institution  may
adopt the following methodologies:

(a)   On the basis of merit as determined by a 'Competitive Test'  conducted
by the state government or by  the  competent  authority  appointed  by  the
state government or by the university/group  of  universities  in  the  same
state; or

(b)   On the basis of merit as determined by a centralised competitive  test
held at the national level; or

(c)   On the basis of the individual cumulative performance  at  the  first,
second and third MBBS examinations provided admissions are University  wise;
or

(d)   Combination of (a) and (c).

      Provided that wherever 'Entrance Test' for postgraduates admission  is
held by  a  state  government  or  a  university  or  any  other  authorized
examining  body,  the  minimum  percentage  of  marks  for  eligibility  for
admission to postgraduate medical course shall be  50  percent  for  general
category  candidates  and  40  percent  for  the  candidates  belonging   to
Scheduled Castes, Scheduled Tribes and Other Backward Classes.

Provided further that in Non-Governmental institutions fifty percent of  the
total seats shall be filled by  the  competent  authority  notified  by  the
State Government and the remaining fifty percent  by  the  management(s)  of
the institution on the basis of inter-se Academic Merit.

Further provided that in determining the merit and  the  entrance  test  for
postgraduate admission weightage in the marks be given as  an  incentive  at
the rate of 10% of the marks obtained for each year in service in remote  or
difficult areas upto the maximum of 30% of the marks obtained.'



13.   The above leaves no manner of doubt that admissions  to  post-graduate
medical courses have to be made only on the basis of academic merit  of  the
candidates.   It  is  clear  from  sub-Regulation  (2)  (supra)   that   for
determining the "academic merit" the university/institution  can  adopt  any
of the methodologies  stipulated  therein.   In  terms  of  proviso  (1)  to
Regulation 9, general category candidates must secure 50% marks while  those
belonging to SC/ST and other backwards classes are  required  to  secure  at
least 40% marks in the entrance test in order to be eligible for  admission.
 In terms of the third proviso to  Rule  9  (supra)  weightage  for  service
rendered in remote and difficult areas is made permissible at  the  rate  of
10% of the marks obtained for each year in service in  remote  or  difficult
areas upto a maximum 30% of the marks.

14.   Regulation 9 is, in our opinion, a complete code  by  itself  inasmuch
as  it  prescribes  the  basis  for  determining  the  eligibility  of   the
candidates including the method to be adopted for determining the  inter  se
merit which remains the only basis for such admissions. To  the  performance
in the entrance test can be added weightage  on  account  of  rural  service
rendered by the candidates in the manner and to the extent indicated in  the
third proviso to Regulation 9. Suffice it to say that but for  the  impugned
legislation making an attempt to change the basis on  which  admissions  can
be made, such admissions must, in all categories, be made only on the  basis
of merit as determined in terms of  the  provision  extracted  above.   That
method, however, is given a go-bye  by  the  impugned  legislation  when  it
provides that in-service candidates seeking admission in the quota  reserved
for in-service doctors shall be granted such admission not on the  basis  of
one of the methodologies sanctioned by Rule 9(2) of the  Rules  but  on  the
basis of inter se seniority of such candidates. The question is whether  the
State was competent to enact such a law.  Our answer to that question is  in
the negative.  The reasons are not far  to  seek.   As  noted  earlier,  the
subject is fully covered by several pronouncements of this  Court  to  which
we shall presently refer but before we do so we may extract Article  246  of
the Constitution which reads as under:

"246. Subject matter of laws made by Parliament and by the  Legislatures  of
States

(1)  Notwithstanding  anything  in  clauses  (2)  and  (3),  Parliament  has
exclusive power to make laws with respect to any of the  matters  enumerated
in List I in the Seventh Schedule (in this Constitution referred to  as  the
Union List)

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

(3)  Subject to clauses  (1) and (2),  the  Legislature  of  any  State  has
exclusive power to make laws  for  such  State  or  any  part  thereof  with
respect to any of the matters enumerated in List II in the Seventh  Schedule
(in this Constitution referred to as the 'State List')

(4) Parliament has power to make laws with respect to  any  matter  for  any
part of the territory of India not included  (in  a  State)  notwithstanding
that such matter is a matter enumerated in the State List"


15.   We may also refer, at this stage, to Entry 66 of List I which runs  as
under:

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



16.   In State  of  T.N.  and  Anr.  v.  Adhiyaman  Educational  &  Research
Institute & Ors. (1995) 4 SCC 104, this Court was  examining  the  scope  of
Entry 66 of the Union List vis-a-vis Entry 25  of  the  Concurrent  List  in
relation to the provisions of Tamil Nadu Private Colleges  (Regulation)  Act
and Madras University Act vis-a-vis Council  for  Technical  Education  Act,
1987. This Court held that the Central  Act  was  intended  to  achieve  the
object of coordinated and integrated development of the technical  education
system at all levels  throughout  the  country  with  a  view  to  promoting
qualitative improvement of such education. This Court further held that  the
Central Act namely, All India Council for Technical Education Act, 1987  was
within the scope of Entry 66 of List I and Entry 25 of List III and that  on
the subject covered by the statute the State could neither make a law  under
Entry 11 of List  II  nor  under  Entry  25  of  List  III  after  the  42nd
Amendment.   If  there  was  any  law  existing   immediately   before   the
commencement of the Constitution within the meaning of Article 372, such  as
the Madras University Act, 1923,  the  Central  Legislation  would,  to  the
extent of repugnancy, impliedly repeal such  pre-existing  law.  This  Court
summed up the legal position  and  the  test  applicable  in  the  following
paragraph:


"41. What emerges from the above discussion is as follows:
(i) The expression 'coordination' used in Entry 66 of the Union List of  the
Seventh Schedule to the Constitution does not  merely  mean  evaluation.  It
means harmonisation with a view to forge a uniform pattern for  a  concerted
action according to a certain design, scheme or  plan  of  development.  It,
therefore, includes action not only for removal of disparities in  standards
but also for preventing  the  occurrence  of  such  disparities.  It  would,
therefore, also include power to  do  all  things  which  are  necessary  to
prevent what would make 'coordination' either impossible or difficult.  This
power is absolute  and  unconditional  and  in  the  absence  of  any  valid
compelling reasons, it must be given its full effect according to its  plain
and express intention.

[pic](ii) To the extent that the State legislation is in conflict  with  the
Central legislation though the former is purported to have been  made  under
Entry 25 of the Concurrent List but in effect  encroaches  upon  legislation
including subordinate legislation made by the Centre under Entry 25  of  the
Concurrent List or to give effect to Entry 66 of the Union  List,  it  would
be void and inoperative.

(iii) If there is a conflict between the two legislations, unless the  State
legislation is saved by the provisions of the main part  of  clause  (2)  of
Article  254,  the  State  legislation  being  repugnant  to   the   Central
legislation, the same would be inoperative.

(iv) Whether the State law encroaches upon Entry 66 of the Union List or  is
repugnant to the law made by the Centre under Entry  25  of  the  Concurrent
List, will have to be determined by the examination  of  the  two  laws  and
will depend upon the facts of each case.

(v) When there are more applicants than the available situations/seats,  the
State authority is not  prevented  from  laying  down  higher  standards  or
qualifications than those laid down by the Centre or the  Central  authority
to short-list the applicants. When the State authority does so, it does  not
encroach upon Entry 66 of the Union List or make a law  which  is  repugnant
to the Central law.

(vi)  However,  when  the  situations/seats  are  available  and  the  State
authorities deny an applicant the same on the ground that the  applicant  is
not qualified according to its standards or qualifications, as the case  may
be, although the applicant satisfies the standards  or  qualifications  laid
down by the Central law, they  act  unconstitutionally.  So  also  when  the
State authorities  de-recognise  or  disaffiliate  an  institution  for  not
satisfying the standards or requirement  laid  down  by  them,  although  it
satisfied the norms and requirements laid down  by  the  Central  authority,
the State authorities act illegally."


.
17.   In Dr. Preeti Srivastava (supra) one of the questions  that  fell  for
consideration was whether the standard of education and  admission  criteria
could be laid under Entry 25 of  List  III  by  a  Central  Legislation.   A
Constitution  Bench  of  this  Court  by  majority  held  that  standard  of
education and admission criteria could be laid down under Entry 66  of  List
I and under Entry 25 of List III.  It was held that both the Union  as  well
as the State have the power to  legislate  on  education  including  medical
education and the State has the right to control education  so  far  as  the
field is not occupied by any union legislation.  When the maximum  marks  to
be obtained in the entrance test  for  admission  to  the  institutions  for
higher education including higher medical  education  is  fixed,  the  State
cannot adversely affect the standards laid down  by  the  union  government.
It was held that it is for the MCI to determine reservation to be  made  for
SC/ST and OBC candidates and lowering the qualifying marks in  their  favour
on the pretext or pretence of public interest. Speaking  for  the  majority,
Sujata V. Manohar, J. summed up the legal position as under:

"35. The legislative competence of Parliament and the  legislatures  of  the
States to make laws under Article 246 is regulated by the VIIth Schedule  to
the Constitution. In the VIIth Schedule as originally in force, Entry 11  of
List II gave to the State an exclusive  power  to  legislate  on  "education
including universities, subject to the provisions of Entries 63, 64, 65  and
66 of List I and Entry 25 of List III".

Entry 11 of List II was deleted and Entry 25 of List III  was  amended  with
effect from 3-1-1976 as a result of the Constitution 42nd Amendment  Act  of
1976. The present Entry 25 in the Concurrent List is as follows:

"25.  Education,  including  technical  education,  medical  education   and
universities, subject to the provisions of Entries 63,  64,  65  and  66  of
List I; vocational and technical training of labour."
[pic]
Entry 25 is subject, inter alia, to Entry 66 of List I.

Entry 66 of List I is as follows:

"66. Coordination and determination of standards in institutions for  higher
education or research and scientific and technical institutions."

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

36. It would not be correct to say that the  norms  for  admission  have  no
connection with the standard of education, or that the rules  for  admission
are covered only by Entry 25 of List III. Norms  of  admission  can  have  a
direct impact on the standards of education. Of course, there can  be  rules
for admission which are consistent with  or  do  not  affect  adversely  the
standards of education prescribed by the Union in exercise of  powers  under
Entry 66 of List  I.  For  example,  a  State  may,  for  admission  to  the
postgraduate medical courses, lay down qualifications in addition  to  those
prescribed under  Entry  66  of  List  I.  This  would  be  consistent  with
promoting higher standards for admission to the higher educational  courses.
But any lowering of the norms laid down can and does have an adverse  effect
on the standards  of  education  in  the  institutes  of  higher  education.
Standards of education in  an  institution  or  college  depend  on  various
factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of education  in  the
given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available  to  each
student;
(5) the calibre of the students admitted to the institution;
(6)  equipment  and  laboratory  facilities,  or  hospital  facilities   for
training in the case of medical colleges;
(7) adequate accommodation for the college and the attached hospital; and
[pic](8) the standard of examinations held including  the  manner  in  which
the papers are set and examined and the clinical performance is judged."

                                        (emphasis supplied)


18.   This Court further held that MCI had framed  regulations  in  exercise
of the power conferred under Section 20 read with Section 33 of the  Medical
Council of India Act which covered post-graduate  medical  education.  These
regulations are binding and the States cannot, in exercise  of  their  power
under Entry 25 of List III, make any rule which  are  in  conflict  with  or
adversely impinge upon the regulations made by the MCI. Since the  standards
laid down are in exercise of power conferred under Entry 66 of List  I,  the
exercise of that power  is  exclusively  within  the  domain  of  the  union
government.  The State's power to frame rules pertaining  to  education  was
in any case subject to any provision made in that connection  by  the  union
government. The Court observed:

"52. Mr. Salve, learned counsel appearing for the Medical Council  of  India
has, therefore, rightly submitted that under the Indian Medical Council  Act
of 1956 the Indian Medical Council is empowered to  prescribe,  inter  alia,
standards of postgraduate medical education. In the exercise of  its  powers
under Section 20 read with Section 33 the Indian Medical Council has  framed
regulations which govern postgraduate medical education. These  regulations,
therefore, are binding and the States  cannot,  in  the  exercise  of  power
under Entry 25 of  List  III,  make  rules  and  regulations  which  are  in
conflict with or adversely  impinge  upon  the  regulations  framed  by  the
Medical Council of India  for  postgraduate  medical  education.  Since  the
standards laid down are in the exercise of the power conferred  under  Entry
66 of List I, the exercise of that power is exclusively  within  the  domain
of the Union Government. The power of the States under Entry 25 of List  III
is subject to Entry 66 of List I.

53. Secondly, it is not the exclusive power of the State to frame rules  and
regulations pertaining to education since the subject is in  the  Concurrent
List. Therefore, any power exercised by the State in the area  of  education
under Entry 25 of List III will also be subject  to  any  existing  relevant
provisions made in that connection  by  the  Union  Government  subject,  of
course, to Article 254."
                                               (emphasis supplied)


19.   We may also at this stage refer to  the  decision  of  this  Court  in
Gopal D. Tirthani case (supra). That was a case where the State defined  the
percentage  at  post-graduation  level  for  degree   and   diploma   course
exclusively for in-service candidates. The reservation came under  challenge
but was upheld by this Court holding that the setting apart of 20% seats  in
post-graduate course for in-service candidates was not a reservation  but  a
separate and  exclusive  channel  of  entry  or  source  of  admission,  the
validity whereof cannot  be  determined  on  the  constitutional  principles
applicable to communal reservation. In-service candidates and those who  are
not in-service are two classes based on  an  intelligible  differentia.  The
purpose sought to be achieved by such classification was a laudable  purpose
as such candidates would, after they acquire higher  academic  achievements,
be available to be posted in rural areas by  the  State  Government.  Having
said that, this Court held that there can be no  relaxation  for  in-service
candidates in so far as the  common  entrance  test  is  concerned  and  MCI
regulation could not be relaxed for that  purpose.  The  argument  that  in-
service  candidates  are  detached  from  theoretical  study   and   cannot,
therefore, compete with other candidates was rejected  by  this  Court.  The
following passages, in this regard, are apposite:

"25. The eligibility test, called the entrance test or the pre-PG  test,  is
conducted with dual purposes.  Firstly,  it  is  held  with  the  object  of
assessing the knowledge and intelligence quotient of a candidate whether  he
would be able to prosecute postgraduate studies if  allowed  an  opportunity
of doing so; secondly, it is for the purpose of assessing  the  merit  inter
se of the candidates which is of vital significance at the counselling  when
it comes to allotting the successful  candidates  to  different  disciplines
wherein the seats are limited and some  disciplines  are  considered  to  be
more creamy and are more coveted than the others. The concept of  a  minimum
qualifying percentage cannot, therefore, be given a complete  go-by.  If  at
all there can be departure, that has to be minimal  and  that  too  only  by
approval of experts in  the  field  of  medical  education,  which  for  the
present are available as a body in the Medical Council of India.

26. The Medical Council of India, for  the  present,  insists,  through  its
Regulations, on a common entrance test being conducted whereat  the  minimum
qualifying marks would be 50%. The State of Madhya Pradesh must comply  with
the requirements of the Regulations framed by the Medical Council  of  India
and hold a common entrance test even if there are two separate  channels  of
entry and allow clearance only to such candidates  who  secure  the  minimum
qualifying marks as prescribed by the MCI Regulations. If the  State  has  a
case for making a departure from such rule or for carving out  an  exception
in favour of any classification then it is for the  State  to  represent  to
the Central Government and/or the Medical Council of India and  make  out  a
case of justification consistently with the aforequoted observation of  this
Court in Dayanand Medical College and Hospital case."
                                  (emphasis supplied)



20.   It is in the light of the above pronouncements futile  to  argue  that
the impugned legislation can hold the field even when it is in clear  breach
of the Medical Council of India's Regulations. The High Court  was,  in  our
opinion, right in holding that inasmuch as the provisions  of  Section  5(4)
of the impugned enactment provides  a  basis  for  selection  of  candidates
different from the one stipulated by the MCI Regulations it was  beyond  the
legislative competence of the State Legislature.  Having said that the  High
Court adopted a reconciliatory approach when it directed that  seniority  of
the in-service  candidates  will  continue  to  play  a  role  provided  the
candidates concerned have appeared in the common entrance test  and  secured
the minimum percentage of marks stipulated by  the  Regulations.   The  High
Court was, in our opinion, not correct in making that declaration.  That  is
because, even when in Gopal  D.  Tirthani's  case  (supra)  this  Court  has
allowed in-service candidates to  be  treated  as  a  separate  channel  for
admission to post-graduate course within that category  also  admission  can
be granted only on the basis of merit. A  meritorious  in-service  candidate
cannot be denied admission only because he has an eligible senior above  him
though lower in merit.  It is now fairly well settled that merit  and  merit
alone can be the basis of admission among candidates belonging to any  given
category. In service candidates  belong  to  one  category.  Their  inter-se
merit cannot be overlooked only to promote seniority which has no  place  in
the scheme  of  MCI  Regulations.  That  does  not  mean  that  merit  based
admissions to in-service candidates cannot take  into  account  the  service
rendered by such candidates in rural areas. Weightage for  such  service  is
permissible while determining the merit of the candidates in  terms  of  the
third proviso to Regulation 9 (supra). Suffice it to say that  Regulation  9
remains as the only effective and permissible basis for  granting  admission
to  in-service  candidates  provisions  of  Section  5(4)  of  the  impugned
enactment notwithstanding.  That being so, admissions can and  ought  to  be
made only on the basis of inter se merit of  the  candidates  determined  in
terms  of  the  said  principle  which  gives  no  weightage  to   seniority
simplicitor.

21.   In the result, these appeals fail and are hereby dismissed but in  the
circumstances without any order as to costs.

                          ................................................J.
                                                               (T.S. THAKUR)



                        ..................................................J.
                                                              (R. BANUMATHI)
New Delhi
January 12, 2015.

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