advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, August 16, 2016

for a declaration that the third Proviso to Regulation 9(2) of the Post Graduate Medical Education Regulations, 2000 (hereinafter referred to as ‘the said Regulation’), is unconstitutional and violative of Article 14 of the Constitution; and for a direction against the Authorities to refrain from disturbing the selection of the said writ petitioners or to interfere with their Post Graduate studies which they are presently pursuing. = In so far as Writ Petition No.372/2016 even that should fail as we have held Regulation 9 to be a complete Code and a provision for determining inter-se merit of the candidates including by giving weightage of marks as incentive to eligible in-service candidates who have worked in notified remote or difficult areas in the State, which is just, reasonable and necessary in larger public interest. We make it clear that we have not examined the correctness of the fresh merit list prepared by the concerned Authority in terms of interim order dated 12.05.2016. If any candidate is aggrieved on account of wrong placement in the fresh merit list or being in violation of this decision, will be free to question the same by way of appropriate proceedings. That challenge can be considered on its own merit.

                                                                [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.8047 / 2016
                 (Arising out of SLP (Civil) No.13832/2016)

State of U.P. & Ors.                                       ……..Appellants

                       Versus

Dr. Dinesh Singh Chauhan                             …….Respondent

                                    WITH

             CIVIL APPEAL NOS. 8048, 8049-51, 8052 and 8053/2016
  (Arising out of SLP (Civil) Nos.13872/2016, 15154-15156/2016, 15529/2016,
                                 14427/2016
                                     and
                         W.P. (Civil) No. 372/2016)

                               J U D G M E N T

KHANWILKAR, J.

      Leave granted.

2.    We have three sets  of  matters  before  us.   The  first  is  appeals
arising from the  common  judgment  of  the  High  Court  of  Judicature  at
Allahabad dated 7th April, 2016 in Writ Petition Nos: 1380, 34118 and  35051
all of 2015.   The second is an appeal arising  from  the  decision  of  the
High Court of Judicature at Allahabad, Lucknow Bench dated  27th  May,  2016
in Writ Petition No: 12004 of 2016. The  third  is  a  Writ  Petition  under
Article 32 of the Constitution of India praying for a declaration  that  the
third Proviso to Regulation 9(2) of  the  Post  Graduate  Medical  Education
Regulations, 2000 (hereinafter referred to as ‘the  said  Regulation’),   is
unconstitutional and violative of Article 14 of the Constitution; and for  a
direction against the Authorities to refrain from disturbing  the  selection
of the said writ petitioners  or  to  interfere  with  their  Post  Graduate
studies which they are presently pursuing.  The latter two  proceedings  are
the fall out of the interim order passed  by  this  Court  dated  12th  May,
2016.

3.    The first set of appeals (arising from  SLP  (C)  Nos:  13832,  13872,
14427 and 15154-56 all of 2016), are directed against  the  common  judgment
of the Division Bench of the High Court dated 7th April, 2016 disposing  the
aforesaid three Writ Petitions preferred by the in-service Medical  Officers
in the State of Uttar Pradesh, challenging the Government Orders dated  28th
February, 2014 and 17th April, 2014 - so far as it imposed  a  condition  of
working of three years in rural or difficult areas as  ultra-vires  and  hit
by Article 14, 15 and 16 of the Constitution of India.  It was  also  prayed
that No Objection Certificate be issued in favour  of  the  petitioners  for
admission  in  MD/MS/Diploma  in  UPPGMEE-2015  and  for  quashing  of   the
declaration of result dated 2nd June, 2015.

4.    The said writ petitioners claimed to  be  members  of  the  Provincial
Medical Health Services in the State of Uttar Pradesh.  According  to  them,
they were also entitled to be considered  for  admission  in  Post  Graduate
Degree Courses against 30% quota for in-service candidates.  That  plea  was
opposed on the ground that 30% quota was reserved only  for  the  in-service
candidates who had worked in remote and difficult areas; and not for the in-
service Medical Officers generally.  In these petitions, the High Court  was
primarily required to consider the question as  to  whether  the  in-service
Medical Officers in the State of Uttar Pradesh who  had  working  experience
(in areas other than remote and difficult areas), could also be  treated  as
eligible for  admission  against  the  reserved  30%  quota  for  in-service
candidates in Post Graduate Degree Courses.  While considering  this  issue,
the High Court, in the context of Regulation 9, noticed that  there  was  no
provision in The Indian Medical Council Act, 1956 (hereinafter  referred  to
as the Central Enactment  or  Act  of  1956);  and  the  Regulations  framed
thereunder  known  as  Medical  Council  of  India  Post  Graduate   Medical
Education  Regulations,  2000  (hereinafter  referred   to   as   the   said
Regulations), stipulating reservation for in-service candidates against  the
30% seats in “Post Graduate Degree Courses”.  The  provision,  however,  was
only to give weightage of marks to in-service candidates who had worked  for
specified period in CHC and PHC Hospitals in notified remote,  difficult  or
backward areas of the State.   On  the  other  hand,  reservation  has  been
limited to Post Graduate “Diploma” Courses  by  the  said  Regulations.  The
High Court, therefore, called upon the Medical Council of India  to  clarify
its stand in this behalf.  The Medical Council of India  stated  before  the
High Court that no reservation for in-service candidates was permissible  in
respect of Post Graduate “Degree” Courses;  unlike  for  the  Post  Graduate
“Diploma” Courses, in terms of Regulations framed in that behalf.   Further,
the State Government could not have framed any  statutory  Rules  much  less
provided different dispensation by an executive  fiat.   In  light  of  this
stand, the High Court was pleased to hold that the State Government has  had
no authority to frame any Rules or issue any executive order to provide  for
reservation  in  the  Post  Graduate  “Degree”  Courses,  contrary  to   the
statutory Regulations framed under the Medical Council of  India  Act,  1956
(Central Enactment). The High Court whilst adverting  to  the  decisions  of
this Court including the recent judgment  in  the  case  of  Sudhir  N.  and
others Versus State of Kerala and others[1] held  that  Regulation  9  is  a
complete Code and the admission process must strictly adhere  to  the  norms
stipulated  therein.  It,  thus,   proceeded   to   quash   the   Government
Notification-cum-Government Order dated 28th  February,  2014  and  directed
that admissions to Post Graduate “Degree” Courses be proceeded  strictly  on
merits amongst the candidates who have obtained requisite minimum  marks  in
the common entrance examination in question.  It  also  noted  that  as  per
Regulation 9, at best, the in-service candidates who have worked  in  remote
and  difficult  areas   in   the   State,   as   notified   by   the   State
Government/Competent Authority from time to time, alone  would  be  eligible
for weightage of marks as  incentive  at  the  rate  of  10%  of  the  marks
obtained for each year of service in such areas  upto  the  maximum  of  30%
marks obtained in National Eligibility-cum-Entrance Test.

5.    This common judgment of the High Court has been challenged in  appeals
arising from SLP  (Civil)  Nos.13832,  14427,  13872,  15154-56/2016.   When
these appeals came up for  consideration  on  12th  May,  2016,  this  Court
recorded the statement made on behalf of the State Government and  proceeded
to pass the following order:

“We have heard learned counsel for the parties  at  some  length.  The  High
Court of Judicature at Allahabad has  in  terms  of  the  impugned  judgment
quashed Government Order dated 28th February,  2014  whereby  30%  seats  in
post-graduate degree courses in medicine and  other  disciplines  have  been
reserved for in-service candidates who had three  years  or  more  of  rural
service in notified and difficult areas. The High  Court  has  relying  upon
the judgment of this Court in Sudhir N. and Others v. State  of  Kerala  and
Others – (2015) 6 SCC 685 held that the State Government  could  not  by  an
executive order change the method of selection for admission  of  candidates
for post-graduate courses in medical science so as to violate or dilute  the
regulations framed by the Medical  Council  of  India  in  exercise  of  its
powers under Section 33 of Medical Council of India  Act.  Regulation  9  of
the Medical Council of India  Postgraduate  Medical  Education  Regulations,
2000 which deals with the method of selection of  candidates  for  admission
to post-graduate courses reads as under:

“9. SELECTION OF POSTGRADUATE STUDENTS.

9(1)(1) Students for Post Graduate  medical  courses  3  shall  be  selected
strictly on the basis of their Inter-se Academic Merit. b) 50% of the  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 area. After acquiring the PG  Diploma,  the  Medical  Officers
shall serve for two more years in remote and/or difficult areas.  In  Clause
9(1)(b) after the words”remote and/or difficult areas” and  in  the  proviso
to the  clause  9(2)(d),  the  following  shall  be  inserted  in  terms  of
Notification published on 16.04.2010. “As directed by  the  competent  State
authorities from time to time.” 9 (2) For determining the  `Academic  Merit'
the University/Institution may adopt the following methodology: (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  authorised  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  4  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. The following proviso is added after  clause  9(2)(d)  in
terms    of    Gazette     Notification     published     on     17.11.2009.
                       “Further provided that in determining the  merit  and
the entrance test for postgraduate admission weightage in the marks  may  be
given as an incentive at the rate of 10% of  the  marks  obtained  for  each
year in-service in remote or difficult areas up to the  maximum  of  30%  of
the marks obtained.” (Emphasis supplied by us)

       It was contended on behalf  of  the  petitioners-candidates  by  Mrs.
Indu Malhotra, learned senior counsel, that while the question  whether  the
Government could reserve seats for candidates who had  rendered  service  in
notified rural and difficult areas, could be examined in greater  detail  at
the final hearing, the least that this court could do at the  interim  stage
is to direct redrawing of the merit list of the candidates in terms  of  the
Regulation 9 (supra). It was submitted  that  proviso  (iii)  to  Regulation
9(2) clearly permits grant of weightage in terms  of  marks  by  way  of  an
incentive for rural service rendered by candidates at the rate  of  10%  for
each year of service in remote or difficult areas subject to  a  maximum  of
30% of the marks obtained by a candidate. It was contended that even if  the
State was not competent to separately reserve a  specific  number  of  seats
for candidates who have served in notified areas the  fact  that  candidates
had rendered service in notified rural and difficult areas entitled them  to
weightage in terms of  the  said  proviso.  It  was  urged  that  the  State
Government could be directed to re-draw the merit  list  of  the  candidates
who appeared in the competitive  examination  on  the  basis  of  the  above
Regulation giving to the eligible candidates weightage  for  rural  service,
if any rendered by them, and granting admission  accordingly  to  those  who
qualify on that basis. It was urged that  while  the  State  Government  had
already completed one round of counselling for some  of  the  candidates  in
the merit list, the remaining candidates had yet to be counselled. This  may
therefore call for cancellation of the earlier counselling and holding of  a
fresh round of counselling of candidates after a revised  merit  list  drawn
in the manner indicated above. Mr. Dinesh Dwivedi,  learned  senior  counsel
appearing for  the  respondents-writ  petitioners  and  Mr.  Dushyant  Dave,
learned senior counsel appearing for the State, submit that they  will  have
no objection if the merit list is redrawn  on  the  basis  of  Regulation  9
(supra) after giving to eligible candidates the weightage  for  service,  if
any rendered, in notified rural areas. They have also no  objection  to  the
counselling process being done de novo on the basis  of  the  revised  merit
list so prepared.                                  In the circumstances,  we
direct that the State Government shall as expeditiously as  possible  revise
and redraw the merit list of the candidates keeping in view Regulation 9  of
the Medical Council of India  Postgraduate  Medical  Education  Regulations,
2000 and giving to the eligible candidates such 6 weigtage as may be due  to
them for rendering service in notified rural and/or difficult areas  and  to
grant admission to the candidates found suitable for the same on  the  basis
of such redrawn merit list. This exercise shall  be  completed  before  30th
May, 2016, the last  date  fixed  for  granting  of  admission.  The  entire
exercise so conducted shall however remain subject to the outcome  of  these
proceedings.                              Post    after    ensuing    summer
vacation.”

                                                         (emphasis supplied)



6.    In furtherance  of  the  above  order,  the  Competent  Authority  has
prepared a fresh merit list of all the candidates in terms of Regulation  9,
giving weightage of marks to eligible in-service  Medical  Officers.   As  a
result, the previous merit list stood  fully  altered  and  realigned.   The
admission process will have to be taken forward on the basis of  this  fresh
merit list.  As a result of the preparation of a fresh merit list,  most  of
the candidates who  had  earlier  secured  higher  position  in  the  common
entrance test examination, have  been  pushed  back  due  to  allocation  of
incentive marks to the concerned in-service Medical Officers.  Hence,  those
affected candidates made representations to  the  State  of  Uttar  Pradesh;
which in turn was advised to file Interlocutory Application  in  this  Court
being I.A.No.5/2016 in SLP (Civil)  No.13832/2016,  praying  for  permitting
the State Government to restore the position as  it  existed  prior  to  the
issuance of the  Government  Order  dated  28th  February,  2014,  so  that,
admission to Post Graduate Medical Seats can be made on the basis  of  marks
obtained by the concerned candidates in the NEET; and further to extend  the
time for completing the  admission  process  in  the  Post  Graduate  Degree
Courses. Besides the State Government, even the candidates affected  by  the
fresh merit list prepared in terms of Regulation  9,  have  rushed  to  this
Court by way  of  separate  Interlocutory  Applications  in  the  respective
appeals.  According to them, status quo-ante should be  restored  to  enable
them to pursue their Post Graduate “Degree” Courses  in  the  same  colleges
where they have already been admitted.

7.    The second set of appeal (arising from SLP (Civil) No.15529/2016),  is
by Medical Officers of State Medical  Colleges  seeking  admission  to  Post
Graduate  Degree  Courses.  According  to  them,  they  were  also  eligible
candidates in terms of Regulation 9 and should have been considered  at  the
time of preparing a fresh merit list. The said Writ Petition  was  dismissed
by the Division Bench vide Order dated 27th May, 2016 on  the  finding  that
it was not feasible for the Department to consider the claim of eligible in-
service candidates who had not submitted applications/documents  before  the
notified date.  In other words, only those  in-service  candidates  who  had
submitted applications for grant of admission to the  Post  Graduate  Degree
Courses within the stipulated time have been  considered.   This  proceeding
is, therefore, the fall out of the interim direction issued  by  this  Court
on 12th May, 2016.

8.     The  third  set  of  proceedings  being  Writ  Petition  (Civil)  No.
372/2016, filed under Article  32  of  the  Constitution  of  India,  is  by
students aspiring to take  admissions  to  various  Post  Graduate  “Degree”
Courses in the State of Uttar Pradesh; and who claim to have  been  affected
by the dispensation specified in the interim  order  passed  by  this  Court
dated 12th May, 2016. In that, they have been dislodged from the  respective
Post Graduate Degree Courses in which they  were  already  admitted  in  the
concerned medical colleges and even started pursuing their courses.

9.    These matters were listed to consider the  Interlocutory  Applications
filed by the State of U.P. and  other  affected  candidates.   The  sum  and
substance of the argument was that the challenge before the  High  Court  in
the writ petition filed was at the instance of in-service  Medical  Officers
who had not worked or gained experience in remote  and  difficult  areas  in
the State and wanted to be equated with their counterparts who were  or  had
worked in remote and/or difficult areas.  The High Court,  however,  quashed
the  entire  resolution  providing  for  30%   reservation   to   in-service
candidates. Further, by  way  of  interim  directions  this  Court  directed
preparation of fresh merit list; and on following  that  direction,  several
meritorious candidates have been dislodged  and  pushed  back  in  order  of
merit because of the  weightage  or  incentive  marks  given  to  in-service
candidates.

10.   The learned Attorney General representing  the  State  Government,  in
all fairness, stated that he was not  in  a  position  to  resile  from  the
statement already made on behalf of the State Government as recorded in  the
order on 12.05.2016,  but  wanted  this  Court  to  consider  the  anomalous
situation created because of the fresh merit  list;  and  to  overcome  that
difficulty, it would be advisable to allow the State Government  to  restore
the position as it existed prior to the issuance  of  the  Government  Order
dated 28.02.2014 - so that admission to all  Post  Graduate  Degree  Courses
can be made on the basis of merit as per the marks obtained  in  the  Common
Entrance Examination. That would result in upholding the  impugned  decision
dated 07.04.2016. This  argument  has  been  supported  by  one  section  of
applicants in the accompanying impleadment applications.

11.   The leading arguments on behalf of  the  candidates  affected  by  the
fresh merit list were made by Shri Ashok Desai, Sr. Counsel,  Shri  Yatinder
Singh, Sr. Counsel, and Shri Gopal Subramanium,  Sr.  Counsel.   The  contra
argument  was  made  by  Shri  K.K.  Venugopal,  Sr.  Counsel,   Shri   K.V.
Vishwanath, Sr. Counsel, Shri Sanjay R. Hegde, Sr. Counsel and  Shri  Dinesh
Dwivedi, Sr. Counsel.

12.   According to  Shri  Gaurav  Sharma,  Advocate  appearing  for  Medical
Council of  India,  the  dispensation  provided  in  terms  of  order  dated
12.05.2016 is just and legal,  for  granting  admissions  to  Post  Graduate
“Degree” Courses in medical colleges.  Hence, no fault  can  be  found  with
that approach.  It was  further  contended  that  the  provisions  regarding
giving weightage to the in-service candidates by way of incentive marks  has
been introduced in larger public interest and the  same  is  just,  rational
and proper.

13.   Shri Ranjit Kumar,  Solicitor  General  appearing  for  King  George’s
Medical College supported the stand  taken  by  the  Attorney  General.   He
submitted that reservation hitherto applied only to State colleges, but  now
with the dispensation adopted in terms of order dated 12.05.2016  passed  by
this Court of giving weightage to all the  eligible  in-service  candidates,
the benefit would apply even in respect of  State  seats  in  non-Government
colleges, including statutory Universities who  have  to  follow  the  merit
list prepared as per the Common Entrance Examination.  Ms. Pinky Anand,  ASG
appearing for the Union of India  submitted  that  since  advertisement  was
already issued, it would be appropriate to continue the  college  admissions
without reservation for in-service candidates. It was argued  on  behalf  of
the interventionists that the decision to strictly follow Regulation  9  may
be made applicable only to academic year 2016-17  and  not  for  an  earlier
period,  in  respect  of  which  the  admission  process  has  already  been
completed and more so because the students  have  taken  admission  on  that
basis and commenced their academic year.  It was further  submitted  that  a
separate list of in-service candidates can be maintained to  the  extent  of
30% seats.  Preparation of combined merit list  results  in  unequals  being
treated equally; and, more so, leads to preposterous results. In some  cases
the in-service candidates, because of the weightage of marks,  have  secured
more than the maximum marks of 200,  specified  in  the  CET.   The  counsel
appearing for the interventionists placed a comparative chart depicting  the
irrational effect due to the fresh merit list. That shows the unfair  manner
in which the meritorious candidates have  been  pushed  down  in  the  merit
list.  It was further submitted that the direct candidates were  willing  to
give undertaking/bond to the effect that  after  passing  out  Post-Graduate
Degree Courses they would serve in remote or difficult areas  in  the  State
for a period as may be specified.  This would assuage the  impression  being
created that  those  candidates  were  un-willing  to  work  in  remote  and
difficult areas.  It was  also  contended  that  even  though  some  of  the
candidates who were keen to  work  in  remote  and/or  difficult  areas,  in
absence of any  notification  issued  by  the  State  Government  to  invite
applications for quite some time for  appointment  as  Medical  Officers  in
remote and difficult areas, the interventionists  -  the  aspiring  eligible
candidates  -  were denied opportunity to work as Medical  Officers  in  the
State hospitals.  Further, the reservation  of  30%  seats  was  limited  to
Government Colleges but the fresh common merit list was applied to  all  the
colleges and Universities including non-Government medical colleges  in  the
State.

14.   As the arguments were heard at  length,  it  was  made  clear  to  all
concerned that instead  of  deciding  the  applications  taken  out  in  the
respective substantive proceedings, the entire matter will be  disposed  off
as the issues to be answered in the main proceedings would be the same.

15.   Having considered the  rival  submissions,  the  first  question  that
needs to be answered is: whether the High Court  exceeded  its  jurisdiction
in setting  aside  the  Government  Order  dated  28.02.2014  providing  for
reservation to in-service candidates, when the writ petition  filed  by  the
in-service candidates  was  limited  to  equate  them  with  the  in-service
candidates who had the experience of working in remote or  difficult  areas.
Indeed, the challenge before the High Court was limited.  However, the  High
Court having held that the State  Government  could  not  have  issued  such
order in violation of Regulation 9, quashed the same.  The  High  Court  had
invited the parties to  advance  arguments  on  the  validity  of  the  said
Government Order before passing the final order.  The High Court  relied  on
the decisions of the Supreme Court and opined that it was  not  permissible,
in law, for the State  Government  to  provide  reservation  for  in-service
candidates in Post-Graduate “Degree” courses in violation of  Regulation  9.
Concededly, action taken on the basis of such a void Government Order  would
be nothing short of  a  nullity  in  law.   As  a  result,  the  High  Court
proceeded to issue directions to  follow  the  admission  process  for  Post
Graduate “Degree” Courses strictly in  conformity  with  Regulation  9.  The
High Court thus moulded the  relief  on  the  basis  of  the  settled  legal
position.  That  approach  is  un-exceptionable,  except  that  it  may   be
necessary to mould the relief further as would be indicated hereinafter.

16.   Be that as it may,  after  the  interim  order  dated  12.05.2016  was
passed by this Court on the basis of assurance given by  the  State,  it  is
not open for the State Government to contend to the contrary.  Notably,  the
State Government has not prayed for relieving itself from the  statement  as
has been recorded  in  the  order  dated  12.05.2016.  That  interim  order,
therefore, in one sense was invited by  the  State  Government  to  strictly
follow Regulation 9 by giving a weightage of marks  to  eligible  in-service
candidates and redraw the merit list.  The concomitant of such  an  informed
statement made to this Court,  inevitably,  results  in  withdrawal  of  the
Government order dated 28.02.2014 (which in fact has been justly quashed  by
the High Court); and also to notify that the  admissions  to  Post  Graduate
Degree Courses in the State of U.P. will be in  conformity  with  Regulation
9, including to give only weightage  or  incentive  marks  to  eligible  in-
service candidates who have served in  notified  remote/difficult  areas  of
the State.  In any case, it is not open to the State Government  to  provide
for a dispensation different than the one specified by the Central  Act  and
Regulations made thereunder.

17.   A priori, it must be held that the relief claimed in  the  application
filed  by  the  State  Government  is  an  ingenious  way  to  overcome  the
unconditional  and  unequivocal  statement  made  before   this   Court   on
12.05.2016.  We are of the considered opinion that the State  Government  is
obliged to adopt a procedure  as  is  stipulated  by  the  Central  Act  and
Regulations  framed  thereunder  and  noted  in  the  interim  order   dated
12.05.2016.  Regulation 9  has  been  extracted  in  the  said  order  dated
12.05.2016, as reproduced above.  Regulation 9(2)  specifically  deals  with
the process of “determining the academic merit” of the eligible  candidates.
Indeed, the primary consideration for determining the academic merit of  the
candidates is the marks obtained by the respective candidates in the  common
competitive test or centralized  competitive  test  held  by  the  concerned
Authority.  What is relevant  for  our  purpose  is  the  third  proviso  in
Regulation 9(2).  It envisages that in determining the merit, weightage  may
be given at the rate of 10% of the marks obtained for each  year  in-service
in remote or difficult areas upto the maximum of 30% marks obtained  in  the
common examination by the candidates.  This  Regulation  does  not  envisage
reservation of seats for the Post  Graduate  “Degree”  Courses,  unlike  the
express  provision  which  is  made  in  the  same  Regulation  to   provide
reservation of seats for in-service candidates in “Diploma” courses.

18.   Reverting to Regulation 9  of  the  Post  Graduate  Medical  Education
Regulations, 2000, which have been framed by the Medical  Council  of  India
in exercise of power conferred by Section 33 read with  Section  20  of  the
Indian Medical Council of India Act, 1956, it is noticed that the  same  has
undergone amendment from time to time.  The decisions pressed  into  service
have considered the stipulations as applicable at the  relevant  time.   The
recent decision in the case of Sudhir N. (supra) also dealt with  Regulation
applicable to admission process commenced in the year  2009-2010.   We  are,
however, concerned with the admission process for  the  subsequent  academic
years and covered by the Regulations as in force.  Regulation 9, as  amended
and lastly notified and made applicable from the Academic Year 2013-14  vide
Notification  No.MCI-18(1)/2010-Mad/62052 dated 15th  February  2012,  reads
thus:

“9. Procedure for selection of candidate for Postgraduate courses  shall  be
as follows:

There  shall  be  a  single  eligibility  cum  entrance  examination  namely
‘National  Eligibility-cum-Entrance  Test  for  admission  to   Postgraduate
Medical Courses’ in each academic year.  The superintendence, direction  and
control of National Eligibility-cum-Entrance Test shall vest  with  National
Board of Examinations under overall supervision of the Ministry of Health  &
Family Welfare, Government of India”]

3% seats of the annual sanctioned intake capacity  shall  be  filled  up  by
candidates with locomotory disability of lower limbs between 50% to 70%:

Provided that in case any seat in this 3% quota remains unfilled on  account
of unavailability of candidates with locomotory disability  of  lower  limbs
between 50% to 70% then any such unfilled seat in this  3%  quota  shall  be
filled up by persons with locomotory disability of lower limbs  between  40%
to 50% - before they  are  included  in  the  annual  sanctioned  seats  for
General Category candidates.

Provide further that  this  entire  exercise  shall  be  completed  by  each
medical  college/institution  as  per  the  statutory  time   schedule   for
admissions.

In order to be eligible for  admission  to  any  postgraduate  course  in  a
particular academic year, it shall be necessary for a  candidate  to  obtain
minimum of marks at 50th percentile  in  ‘National  Eligibility-cum-Entrance
Test for Postgraduate courses’ held for the said  academic  year.   However,
in respect of candidates belonging to Scheduled  Castes,  Scheduled  Tribes,
Other Backward Classes, the minimum marks shall be at 40th  percentile.   In
respect of candidates as provided in  clause  9(II)  above  with  locomotory
disability of lower limbs, the minimum marks shall be  at  45th  percentile.
The percentile shall be determined on the basis of highest marks secured  in
the All-India common merit list in ‘National Eligibility-cum-Entrance  Test’
for Postgraduate courses:

[Provided when sufficient number of candidates in the respective  categories
fail to secure minimum marks  as  prescribed  in  National  Eligibility-cum-
Entrance Test held for any academic year  for  admission  to  Post  Graduate
Courses, the Central Government in  consultation  with  Medical  Council  of
India may at its discretion lower the minimum marks required  for  admission
to Post Graduate Course for candidates belonging  to  respective  categories
and marks so lowered by the Central Government shall be applicable  for  the
said academic year only.

IV.    The  reservation  of  seats  in  medical  colleges/institutions   for
respective  categories  shall  be  as  per  applicable  laws  prevailing  in
States/Union Territories.  An all India merit list  as  well  as  State-wise
merit list of the eligible candidate shall be prepared on the basis  of  the
marks obtained in  National  Eligibility-cum-Entrance  Test  and  candidates
shall be admitted to Post-graduate courses from the said merit lists only:

      [Provided that in determining the merit  of  candidates  who  are  in-
service of Government/public authority, weightage in the marks may be  given
by the Government/Competent Authority as an incentive at the rate of 10%  of
the marks obtained for each year  of  service  in  remote  and/or  difficult
areas upto the maximum of 30% of the marks obtained in National Eligibility-
cum Entrance Test, the remote and difficult areas shall  be  as  defined  by
State Government/Competent authority from time to time.

No candidate who has failed to obtained the  minimum  eligibility  marks  as
prescribed in sub-clause (II) shall be admitted to any Postgraduate  courses
in the said academic year.

In non-Governmental medical colleges/institutions, 50% (Fifty Per  cent)  of
the total seats shall  be  filled  by  State  Government  or  the  Authority
appointed by them, and the remaining 50%  (Fifty  Per  Cent)  of  the  seats
shall be filled by the concerned medical colleges/institutions on the  basis
of  the  merit  list  prepared  as  per  the  marks  obtained  in   National
Eligibility-cum/Entrance Test.]

50% of the seats in Post Graduate Diploma  Courses  shall  be  reserved  for
Medical Officers in the Government service, who have  served  for  at  least
three years in remote  and/or  difficult  areas.   After  acquiring  the  PG
Diploma, the Medical Officers shall serve  for  two  more  years  in  remote
and/or difficult areas as defined by  State  Government/Competent  authority
from time to time.]

The Universities and other authorities concerned  shall  organize  admission
process in such a way that teaching in postgraduate courses  starts  by  2nd
May and by 1st August for  super  specialty  courses  each  year.  For  this
purpose, they shall follow the time schedule indicated in Appendix-III.]

There shall be no admission of students in respect of any  academic  session
beyond 31st May for  postgraduate  courses  and  30th  September  for  super
speciality courses under any  circumstances.   The  Universities  shall  not
register any student admitted beyond the said date.]

The Medical Council of India may direct,  that  any  student  identified  as
having obtained admission after the last date for closure  of  admission  be
discharged from the course of study, or any  medical  qualification  granted
to such a student shall not be a recognized qualification  for  the  purpose
of the Indian Medical  Council  Act,  1956.  The  institution  which  grants
admission to any student after the last date specified for  the  same  shall
also be liable to face such action as may be  prescribed  by  MCI  including
surrender of seats equivalent to the extent of such admission made from  its
sanctioned intake capacity for the  succeeding  academic  year.]”  (emphasis
supplied)

19.   The  structure  of  the  provision,  as  in  force,  may  be  somewhat
different.   Nevertheless,  the  legal  principle  stated  in  the   earlier
decisions of this Court on the question of justness  of  reservation  and/or
to provide separate channel  for  the  in-service  Medical  Officers  and/or
grant weightage of incentive marks to candidates  having  served  in  remote
and difficult areas may be of some relevance.

20.   By now, it is well established that Regulation 9 is  a  self-contained
Code regarding the procedure  to  be  followed  for  admissions  to  medical
courses.  It is also well established that the State  has  no  authority  to
enact any law muchless by executive  instructions  that  may  undermine  the
procedure for admission to Post Graduate Medical Courses enunciated  by  the
Central Legislation and  Regulations  framed  thereunder,  being  a  subject
falling within the Entry 66 of  List  I  to  the  Seventh  Schedule  of  the
Constitution (See: Preeti  Srivastava  (Dr.)  V.  State  of  M.P.[2]).   The
procedure for selection of candidates for the Post Graduate  Degree  Courses
is one such area on which  the  Central  Legislation  and  Regulations  must
prevail.
21.   Thus, we must first ascertain whether Regulation 9, as  applicable  to
the case on hand, envisages reservation  of  seats  for  in-service  Medical
Officers  generally  for  admission  to  Post  Graduate  “Degree”   Courses.
Regulation 9 is a composite provision prescribing  procedure  for  selection
of candidates - both for Post Graduate “Degree” as  well  as  Post  Graduate
“Diploma” Courses. Clause (I) of Regulation 9 mandates that there  shall  be
a single National Eligibility-cum- Entrance Test  (hereinafter  referred  to
as NEET) to be conducted by the designated Authority.  Clause (II)  provides
for three per cent seats of the annual  sanctioned  intake  capacity  to  be
earmarked for candidates with locomotory disability of lower limbs.  We  are
not concerned with this provision. Clause  (III)  provides  for  eligibility
for admission to any Post Graduate Course in  a  particular  academic  year.
Clause (IV) is the relevant  provision.   It  provides  for  reservation  of
seats in  medical  colleges/institutions  for  reserved  categories  as  per
applicable laws prevailing in  States/Union  Territories.   The  reservation
referred to  in  the  opening  part  of  this  clause  is,  obviously,  with
reference to reservation as per the  constitutional  scheme  (for  Scheduled
Caste, Scheduled Tribe or Other Backward Class Candidates); and not for  the
in-service  candidates  or  Medical  Officers  in   service.    It   further
stipulates that All India merit list as well as State wise   merit  list  of
the eligible candidates  shall  be  prepared  on  the  basis  of  the  marks
obtained in the NEET and the admission  to  Post  Graduate  Courses  in  the
concerned State shall be as  per  the  merit  list  only.   Thus,  it  is  a
provision mandating admission of candidates strictly as per the  merit  list
of eligible candidates for the respective  medical  courses  in  the  State.
This  provision,  however,  contains  a  proviso.  It  predicates  that   in
determining the merit of candidates who are in-service of  Government  or  a
public  Authority,  weightage  in  the   marks   may   be   given   by   the
Government/Competent Authority as an incentive at the rate  of  10%  of  the
marks obtained for each year of service in  specified  remote  or  difficult
areas of the State upto the maximum of 30% of the marks  obtained  in  NEET.
This provision even if read liberally does not provide for  reservation  for
in-service candidates, but only  of  giving  a  weightage  in  the  form  of
incentive marks as specified to the class of  in-  service  candidates  (who
have served in notified remote and difficult areas in the State).

22.   From the plain language of this proviso, it is  amply  clear  that  it
does not envisage reservation for in-service candidates in respect  of  Post
Graduate “Degree” Courses with  which  we  are  presently  concerned.   This
proviso postulates  giving  weightage  of  marks  to  “specified  in-service
candidates” who have worked in notified remote  and/or  difficult  areas  in
the State – both for  Post  Graduate  “Degree”  Courses  as  also  for  Post
Graduate “Diploma” Courses. Further, the weightage of marks so  allotted  is
required to be reckoned while preparing the merit list of candidates.

23.   Thus understood, the Central  Enactment  and  the  Regulations  framed
thereunder do not provide for reservation for in-service candidates in  Post
Graduate “Degree” Courses.  As there is  no  express  provision  prohibiting
reservation to  in-service  candidates  in  respect  of  admission  to  Post
Graduate  “Degree”  Courses,  it  was  contended  that  providing  for  such
reservation by the State Government is not impermissible in  law.   Further,
there are precedents of this Court  to  suggest  that  such  arrangement  is
permissible as a separate channel of admission  for  in-service  candidates.
This argument does not commend to us.  In the  first  place,  the  decisions
pressed into service have  considered  the  provisions  regarding  admission
process governed by the Regulations in force  at  the  relevant  time.   The
admission process in the present case is governed by the  Regulations  which
have come into force from Academic Year 2013-14. This Regulation is a  self-
contained Code. There  is  nothing  in  this  Regulation  to  even  remotely
indicate that a separate channel  for  admission  to  in-service  candidates
must be provided, at least in respect of Post Graduate “Degree” Courses.  In
contradistinction, however, 50% seats are earmarked for  the  Post  Graduate
“Diploma” Courses for in-service candidates, as is discernible  from  Clause
(VII).  If the Regulation  intended  a  similar  separate  channel  for  in-
service candidates even in respect of Post Graduate “Degree”  Courses,  that
position would have been made clear in  Regulation  9  itself.   In  absence
thereof, it  must  be  presumed  that  a  separate  channel  for  in-service
candidates is not  permissible  for  admission  to  Post  Graduate  “Degree”
Courses.  Thus, the State Government, in law, had no authority  to  issue  a
Government Order such as  dated  28th  February  2014,  to  provide  to  the
contrary.  Hence, the High Court was fully justified in  setting  aside  the
said Government Order being contrary to the mandate of Regulation 9  of  the
Regulations of 2000, as applicable from Academic Year 2013-14.

24.   In the case of AIIMS Students Union vs. AIIMS &  Ors.[3],  this  Court
was called  upon  to  examine  the  question  whether  seats  earmarked  for
institutional candidates do or do not result in reservation in the sense  in
which it  is  understood  in  the  Constitution.   After  examining  earlier
decisions on the point, this Court in paragraph 59, noticed the  distinction
between undergraduate level education which is a primary or basic  level  of
education  in  medical  sciences.   The  Court   held   that   institutional
reservation  is  not  supported  by  the  Constitution   or   constitutional
principles. However, a certain degree of  preference  for  students  of  the
same institution is permissible without making an excessive  or  substantial
departure from the rule of merit and equality. Further, it has  to  be  kept
within the limits, minimum standards and  merit  cannot  be  diluted  as  to
become practically non-existent.  In the present case,  we  have  held  that
providing  30%  reservation  to  in-service  candidates  in  Post   Graduate
“Degree” Courses is not  permissible.  It  does  not  however,  follow  that
giving weightage or  incentive  marks  to  in-service  candidates  for  Post
Graduate “Degree” Courses entails  in  excessive  or  substantial  departure
from the rule of merit  and  equality.  For,  Regulation  9  recognizes  the
principle of giving weightage to  in-service  candidates  while  determining
their merit. In that sense, incentive marks given to  in-service  candidates
is in recognition of their service reckoned in remote  and  difficult  areas
of the State, which marks are to be added to the marks obtained by  them  in
the NEET. Weightage or incentive marks specified in Regulation  9  are  thus
linked to the marks obtained by the in-service candidate  in  the  NEET  and
reckon  the  commensurate  experience  and  services  rendered  by  them  in
notified remote/difficult areas of the  State.  That  is  a  legitimate  and
rational basis to encourage the Medical  Graduates/Doctors  to  offer  their
services and expertise in remote or difficult areas of the  State  for  some
time. Indisputably, there is a wide gap between the demand for basic  health
care and commensurate medical facilities, because  of  the  inertia  amongst
the young doctors to go to such  areas.  Thus,  giving  specified  incentive
marks (to eligible in-service  candidates)  is  permissible  differentiation
whilst determining their merit. It is an  objective  method  of  determining
their merit.

25.   Coming to the next decision pressed into service in the case of  State
of M.P. & Ors. Vs. Gopal D. Tirthani & Ors.[4], it was a case of  conducting
separate entrance test for in-service candidates. That was frowned  upon  by
this Court.   The  Court,  however,  suggested  modality  of  preparing  two
separate merit list for the  two  categories  and  merit  inter  se  of  the
successful candidates to  be  assessed  separately  in  the  two  respective
categories. The Court had examined the question as to whether weightage  can
be given to doctors  for  having  rendered  specified  number  of  years  of
service in rural/tribal areas to determine the inter  se  merit.  The  Court
analyzed four earlier decisions of this Court; to wit,  Dinesh  Kumar  (Dr.)
(II) Vs. Motilal Nehru Medical College[5], Snehelata  Patnaik  (Dr.)  Versus
State of Orissa[6], Narayan Sharma (Dr.) Versus Pankaj Sharma Kr.  Lenkar[7]
and State of U.P.  Versus  Pradip  Tandon[8].  The  Court  in  paragraph  33
observed thus:

            “……….The case at hand presents an entirely  different  scenario.
Firstly, it is a case of post-graduation within the State and  not  an  all-
India quota. Secondly, it is not a case of  reservation,  but  one  of  only
assigning weightage for service rendered in rural/tribal areas. Thirdly,  on
the view of the law we have taken hereinabove, the  assigning  of  weightage
for service rendered in rural/tribal areas does not at  all  affect  in  any
manner the candidates in open category. The weightage would have the  effect
of altering the order of merit  only  as  amongst  the  candidates  entering
through the exclusive channel of admissions meant for in-service  candidates
within the overall service quota. The statistics  set  out  in  the  earlier
part of the judgment provide ample justification for  such  weightage  being
assigned. We find merit and much substance in the submission of the  learned
Advocate-General for the State of Madhya  Pradesh  that  Assistant  Surgeons
(i.e.   medical   graduates   entering   the   State   services)   are   not
temperamentally inclined to go to  and  live  in  villages  so  as  to  make
available their services to the rural population:  they  have  a  temptation
for staying in cities on account of  better  conditions,  better  facilities
and better quality of life available not only to  them  but  also  to  their
family members as also better educational facilities in elite schools  which
are to be found only in cities. In-service doctors  being  told  in  advance
and knowing that  by  rendering  service  in  rural/tribal  areas  they  can
capture better prospects of earning higher professional qualifications,  and
consequently eligibility for promotion, acts  as  a  motivating  factor  and
provides incentive to  young  in-service  doctors  to  opt  for  service  in
rural/tribal areas. In the set-up of health services in the State of  Madhya
Pradesh and the geographical distribution of population,  no  fault  can  be
found with the principle of assigning weightage to be  service  rendered  in
rural/tribal areas while finalizing the merit list of successful  in-service
candidates  for  admission  to  PG  courses  of  studies.  Had  it  been   a
reservation  considerations  would  have  differed.  There  is  no  specific
challenge to the quantum of weightage and in the  absence  of  any  material
being available on record we cannot find fault with the  rule  of  weightage
as framed. We hasten to add that while recasting and  reframing  the  rules,
the State Government shall take care to see that the weightage  assigned  is
reasonable and is worked out on a rational basis.”  (emphasis supplied)



26.   However, in the present case, the Medical Council of India itself  has
framed a Regulation predicating one merit list by adding  the  weightage  of
marks assigned to in-service candidates for determining their merit  in  the
NEET.

27.   The imperative of giving some incentive marks to  doctors  working  in
the State and more particularly serving  in  notified  remote  or  difficult
areas over a period of time need not be underscored. For, the  concentration
of doctors is in urban areas  and  the  rural  areas  are  neglected.  Large
number of posts in Public Health Care Units in the State  are  lying  vacant
and unfilled in spite of  sincere  effort  of  the  State  Government.  This
problem is faced by all States across India. This  Court  in  Dr.Snehelata’s
case (supra) had left it  to  the  Authorities  to  evolve  norms  regarding
giving incentive marks to the in-service candidates. The Medical Council  of
India is an expert body. Its assessment  about  the  method  of  determining
merit of the competing candidates  must  be  accepted  as  final  (State  of
Kerala V. T.P.Roshana[9]; also see MCI V.  State  Of  Karnataka[10]).  After
due deliberations and keeping in mind the past experience,  Medical  Council
of India has framed Regulations inter alia providing  for  giving  incentive
marks to in-service candidates  who  have  worked  in  notified  remote  and
difficult areas in the State to determine their merit.  The  Regulation,  as
has been brought into force, after successive amendments, is an  attempt  to
undo the mischief.

28.   As aforesaid, the real effect of Regulation 9 is to  assign  specified
marks commensurate with the length of service rendered by the  candidate  in
notified remote and difficult  areas  in  the  State  linked  to  the  marks
obtained in NEET. That is a  procedure  prescribed  in  the  Regulation  for
determining merit of the candidates  for  admission  to  the  Post  Graduate
“Degree” Courses for a single State. This serves a  dual  purpose.  Firstly,
the fresh qualified Doctors will be attracted to opt for rural  service,  as
later they would stand a good chance  to  get  admission  to  Post  Graduate
“Degree” Courses of their choice. Secondly, the Rural Health Care Units  run
by the Public Authority would be benefitted by Doctors willing  to  work  in
notified rural or difficult areas in the State. In our  view,  a  Regulation
such as this subserves larger public interest. Our view is  reinforced  from
the dictum in Dr. Snehelata Patnaik’s case (supra). The three Judges’  Bench
by a speaking  order  opined  that  giving  incentive  marks  to  in-service
candidates is inexorable. It is apposite to refer to the dictum in the  said
decision which reads thus:

“We have already dismissed the writ petition and special leave petitions  by
our order dated  December  5,  1991.  We  would  however,  like  to  make  a
suggestion to the authorities for their consideration that  some  preference
might be given to in-service candidates who have done five  years  of  rural
service. In the first place, it is possible that the facilities for  keeping
up with the latest medical literature might not be  available  to  such  in-
service candidates and the nature of their work makes it difficult for  them
to  acquire  knowledge  about  very  recent  medical  research   which   the
candidates who have come after freshly passing their graduation  examination
might have. Moreover, it might act as an incentive to doctors who  had  done
their graduation to do rural service for some  time.  Keeping  in  mind  the
fact that the rural areas had suffered grievously  for  non-availability  of
qualified doctors giving such incentive would be  quite  in  order.  Learned
counsel for the  respondents  has,  however,  drawn  our  attention  to  the
decision of a Division Bench of two learned Judges  of  this  Court  in  Dr.
Dinesh Kumar v. Motilal  Nehru  Medical  College,  Allahabad.  It  has  been
observed there that merely by offering a weightage  of  15  per  cent  to  a
doctor for three years’ rural service would not bring about a  migration  of
doctors from the urban to rural areas. They observed that  if  you  want  to
produce doctors who are MD or MS, particularly surgeons, who  are  going  to
operate upon human beings, it is of utmost  importance  that  the  selection
should be based on merit. Learned Judges have gone on  to  observe  that  no
weightage should be given to a candidate for rural service rendered  by  him
so far as admissions to post-graduate courses are concerned (see para 12  at
page 741).

In our opinion, this observation certainly does not constitute the ratio  of
the decision. The decision is in no way dependent upon  these  observations.
Moreover, those observations are in connection with all India Selection  and
do not have equal force when applied  to  selection  from  a  single  State.
These observations, however, suggest that the weightage to be given must  be
the bare minimum required to meet the situation. In these circumstances,  we
are of the view that the authorities might well  consider  giving  weightage
up to a maximum of 5 per cent of marks in favour  of  in-service  candidates
who have done rural service for five years or more.  The  actual  percentage
would certainly have to be left to the authorities.  We  also  clarify  that
these suggestions do not in any way confer any  legal  right  on  in-service
students who have done  rural  service  nor  do  the  suggestions  have  any
application to the selection of the students up to the end  of  this  year.”
                             (emphasis supplied)



29.   The crucial question to be examined in this case is: whether the  norm
specified in Regulation  9  regarding  incentive  marks  can  be  termed  as
excessive and unreasonable? Regulation 9, as  applicable,  does  not  permit
preparation of two merit lists,  as  predicated  in  the  case  of  Tirthani
(supra). Regulation 9 is a  complete  Code.  It  prescribes  the  basis  for
determining the eligibilities of the candidates including the method  to  be
adopted for determining the inter se merit, on the basis of one  merit  list
of candidates appearing in the same NEET including  by  giving  commensurate
weightage of marks to the in-service candidates.

30.   As aforesaid, Regulations have been framed by an Expert Body based  on
past experience and including the  necessity  to  reckon  the  services  and
experience gained by  the  in-service  candidates  in  notified  remote  and
difficult areas in the  State.   The  proviso  prescribes  the  measure  for
giving incentive marks to in-service candidates who have worked in  notified
remote  and  difficult  areas  in  the  State.  That  can  be  termed  as  a
qualitative factor for  determining  their  merit.   Even  the  quantitative
factor to reckon merit of the eligible in-service candidates  is  spelt  out
in the proviso.  It envisages giving of incentive marks at the rate  of  10%
of the marks obtained for each year of service in  remote  and/or  difficult
areas up to 30% of the marks obtained in NEET.  It is  an  objective  method
of linking the incentive  marks  to  the  marks  obtained  in  NEET  by  the
candidate. To illustrate, if an in-service candidate who  has  worked  in  a
notified remote and/or difficult area in the State for  at  least  one  year
and has obtained 150 marks out of 200 marks in NEET, he or she would get  15
additional marks; and if  the  candidate  has  worked  for  two  years,  the
candidate would get another  15  marks.   Similarly  if  the  candidate  has
worked for three years and more, the candidate would get a further 15  marks
in addition to the marks secured in NEET.  15 marks  out  of  200  marks  in
that sense would work out to a weightage of 7.5% only, for having served  in
notified remote and/or difficult areas in the State for one  year.   Had  it
been a case of giving 10% marks enbloc of the total  marks  irrespective  of
the marks obtained by the eligible in-service candidates in NEET,  it  would
have been a different matter.  Accordingly, some weightage  marks  given  to
eligible in-service candidate linked to performance in  NEET  and  also  the
length of service in remote and/or  difficult  areas  in  the  State  by  no
standard can be said to  be  excessive,  unreasonable  or  irrational.  This
provision has been brought into force in  larger  public  interest  and  not
merely to provide institutional preference or  for  that  matter  to  create
separate channel for the in-service candidate, muchless reservation.  It  is
unfathomable as to how such a provision can be said to  be  unreasonable  or
irrational.

31.   Here, it may be necessary to deal with the decision of a  two  Judges’
Bench of this Court in Satyabrata Sahoo and others (supra).  The  Court  was
called upon to consider the validity of Clause 11.2 of the “Prospectus”  for
selection  of  candidates  for  Post  Graduate  (Medical)  Courses  in   the
Government Medical Colleges of Odisha  for  the  Academic  Year  2012.   The
challenge to the said clause in the prospectus  was  by  direct  candidates,
inter-alia, on the ground that it  makes  in  road  into  the  prospects  of
direct candidates category.  It  was  contended  that  giving  weightage  of
marks to in-service candidates would be diluting  merit  to  the  extent  of
additional marks.  A total of 173 seats available  for  the  category  MD/MS
course was split into 87 seats for  in-service  category  and  86  seats  to
direct category.  The argument was that  if  all  the  candidates  -  be  it
direct or in-service candidates -  were  required  to  appear  in  a  common
entrance test examination and the admission  criteria  is  only  comparative
merit, the arrangement specified in the prospectus  was  impermissible.  The
Court considered Clause 11.2 of the prospectus  issued  by  the  PG(Medical)
Selection Committee, 2012 and took the view that giving incentive  marks  to
in-service  candidates  results  in  encroachment   or   an   in   road   or
appropriation  of  seats  earmarked  for  open  market  candidates   (direct
admission category) who compete strictly on the basis of  merit.  The  Court
held that the arrangement provided in Clause  11.2  of  the  Prospectus  was
violative of the merit criteria specified in Clause  9  (1)(a)  of  the  MCI
Regulation.  It held that seats for direct category or open  category  is  a
homogeneous class which consists of all categories  of  candidates  who  are
fresh from college, who have rendered service after MBBS  in  Government  or
private hospitals in remote or difficult areas like hilly, tribal and  rural
areas and so on.  All of them  have  to  compete  on  merit  in  the  direct
candidate category, subject to rules of reservation  and  eligibility.   The
Court further noticed that except the State of Odisha  and  to  some  extent
the State of Tamil Nadu none of the other States in India have  incorporated
such a clause in their prospectus for the  Post  Graduate  Medical  Courses.
The Court also quashed the proviso to Clause 9(2)(d) of the MCI  Regulations
as applicable in that case, to the extent indicated above. From  the  issues
formulated in paragraph 15 of this reported decision,  it  is  evident  that
the challenge of direct candidates was about allowing in-service  candidates
to compete for seats earmarked for direct category by  giving  weightage  of
marks.  In the present case, however, there is no separate channel  for  two
categories in  respect  of  Post  Graduate  “Degree”  Courses,  as  was  the
dispensation in that case. On  the  other  hand,  only  one  merit  list  is
prepared and all available seats in terms of Regulation 9  are  thrown  open
to both categories of candidates.  The proviso to Clause IV of Regulation  9
in force (corresponding to third proviso to Regulation 9(2) as extracted  in
the interim order dated 12.05.2016), as interpreted by us, is in the  nature
of  giving  additional  marks  as  incentive   to   in-service   candidates,
commensurate with length of service in notified  remote/difficult  areas  in
the State and also dependent on marks obtained by  them  in  NEET.   In  our
opinion, neither the decision in Tirthani nor the case of  Satyabrata  Sahoo
will have any application to the admissions to Post Graduate Degree  Courses
in the present case, to be taken forward on the basis of  Regulation  9,  as
in force.

32. Reverting to the recent decision of this Court in  Sudhir  N.  and  Ors.
(supra), the two Judges’ Bench was dealing with the  question  of  selection
of in-service medical officers for  post-graduate  medical  education  under
Section 5(4) of the  Kerala  Medical  Officers  Admission  to  Post-graduate
Courses under the Service Quota Act, 2008.   The  said  provision  has  been
extracted in paragraph 5 of  the  reported  decision.   It  deals  with  the
finalization of select list by the  Post-graduate  Course  Select  Committee
strictly on the basis of seniority in-service of the  Medical  Officers  and
following such other criteria as  may  be  prescribed.   Dealing  with  that
challenge the court noticed that Regulation 9 is a complete Code  by  itself
and then proceeded to answer the question whether the  State  was  competent
to enact law on the matter of admission on the basis of  inter-se  seniority
of candidates.  In that context the Court noted that the basis of  selection
must be strictly as per norms specified in the  MCI  Regulations.   Any  law
with regard to that will be  beyond  legislative  competence  of  the  State
legislature.  The Court noted that weightage for  in-service  candidates  is
made permissible by Regulation 9.  That is the limited  departure  from  the
merit list criteria permitted by the  Regulation  itself.   Neither  in  the
case of Sudhir N. (supra) nor in the case of Tirthani (supra) the Court  had
the occasion to deal with the question regarding challenge  to  the  proviso
to Clause IV of Regulation 9.

33.   The matter does not end here.  In the  present  proceedings,  however,
large number of candidates who earlier found place in the  merit  list  have
been affected by the fresh merit list prepared in terms  of  Order  of  this
Court dated 12.05.2016.  As a result of giving effect to Regulation  9,  the
fresh list has thrown up a different argument for  consideration.   The  in-
service candidates who had secured relatively less marks in NEET  have  been
placed high up in the order of merit consequent  to  addition  of  incentive
marks @ 10% of the marks for each year  of  service  in  the  remote  and/or
difficult areas upto the maximum of 30% of marks  obtained  in  NEET  (CET).
We find merit in the submission of  Mr.  Dwivedi,  learned  senior  counsel,
that the rights of such candidates to be considered for  admission,  is  not
affected.  What is affected  is  the  opportunity  to  get  admission  in  a
college or subject of their choice.  There can, however, be no right to  get
the subject or college of one’s choice.   The  provision  in  the  shape  of
Regulation 9  is  to  determine  the  merit  of  the  competing  candidates.
Provision  for  giving  incentive  marks   to   in-service   candidates   is
permissible in law; and thus the proviso to Clause IV in Regulation  9  must
be upheld in larger public interest.  That provision  has  been  introduced,
inter-alia, also to address the deficiency and lack of response of  graduate
doctors to serve in remote or difficult areas in the  State.   The  scarcity
of doctors in villages has been felt for  quite  some  time  for  which  the
provision in  the  form  of  proviso  to  Clause  IV  of  Regulation  9  was
necessitated.  This concern was even echoed in the Rajya  Sabha.   Following
questions were raised which were duly answered by the  Minister  for  Health
and Family Welfare on 23.12.2014.  The same read thus :-

                                 “Questions

“……..

The measures being taken by Government to make up for the  extreme  shortage
of qualified and skilled doctors for healthcare in rural areas;



Whether  government  is  planning  to  introduce  measures  to  measures  to
introduce and enforce compulsory  rural  postings  for  doctors,  before  or
after they have obtained an MBBS degree;



If so, the details thereof; and



If not the reasons therefor?





                                   Answers

……..



At present, in  order  to  encourage  the  doctors  working  in  remote  and
difficult areas, the Medical Council of India with the previous approval  of
Central  Government,  has  amended  the  Post  Graduate  Medical   Education
Regulations, 2000 to provide :-



50% reservation in Post Graduate diploma Courses  for  Medical  Officers  in
the Government service, who have served for at least three years  in  remote
and difficult areas; and



Incentive at the rate of 10% the marks obtained for each year in-service  in
remote or difficult area upto the maximum of 30% of the  marks  obtained  in
the  entrance  test  for  admission  in  Post  Graduate   Medical   Courses.
 (emphasis supplied)



(b)-(d):    The proposal of Medical Council of  India  (MCI)  to  amend  the
Post Graduate Medical Education Regulations,  which  makes  one  year  rural
posting at the Public Health Centre (PHC) mandatory for a  MBBS  student  to
apply   for   admission   in   a   PG   course   is   not   yet   notified.”
                (emphasis supplied)





34.   It  was  then  contended  that  hitherto  reservation  for  in-service
candidates was applicable only in respect  of  Government  colleges  but  on
account of interim directions given by this Court,  dispensation  of  giving
weightage  or  incentive  marks  as  per  Regulation  9  to  the  in-service
candidates has been made applicable across the board even to  non-Government
medical colleges where the seats allocated to the State  Government  are  to
be filled up. In our opinion, Regulation  9  per  se  makes  no  distinction
between Government and non-Government colleges for allocation  of  weightage
of marks to in-service candidates.  Instead, it mandates preparation of  one
merit list for  the  State  on  the  basis  of  results  in  NEET.  Further,
regarding in-service candidates, all it provides is that the candidate  must
have been in-service of a Government/public Authority and served  in  remote
and difficult areas notified by  the  State  Government  and  the  Competent
Authority from time to time. The  Authorities  are,  therefore,  obliged  to
continue with the admission process strictly in conformity  with  Regulation
9. The fact that most of the  direct  candidates  who  have  secured  higher
marks in the NEET than the in-service candidates, may not be in  a  position
to get a subject or college of their choice, and  are  likely  to  secure  a
subject or college not acceptable to them, cannot be the basis  to  question
the validity of proviso to Clause IV of Regulation 9.   The  purpose  behind
proviso is to encourage graduates to join as medical officers and  serve  in
notified remote and difficult areas of the State.  The fact that  for  quite
some time no such appointments have been made by the State  Government  also
cannot be a basis to disregard the mandate of proviso  to  Clause  IV  -  of
giving weightage of marks to the in-service candidates who have  served  for
a specified period in notified remote and difficult areas of the State.



35.   Presumably, realizing this position writ petition has  been  filed  to
challenge  the  validity  of  proviso  to  Clause  IV   of   Regulation   9.
According  to  the  writ  petitioners,  the  prospectus  provided  for   30%
reservation in favour  of  in-service  candidates  for  admission  to  post-
graduate medical courses.  The application of Regulation  9  results  in  an
absurd  situation  because  of  giving  weightage  to  specified  in-service
Medical Officers in the State.  There is neither any committee  set  up  nor
guidelines made as to which area can be notified  as  remote  and  difficult
area.   The  power  vested  in  the  State  is  an  un-canalized  power  and
disregards the settled position that for consideration  after  the  graduate
level, merit should be the sole criteria.  Further, there is no  nexus  with
the object sought to be achieved for providing weightage to  the  extent  of
10% of the marks obtained by the candidate in the  common  competitive  test
and to the extent of maximum of 30% marks so obtained.   Dealing  with  this
contention, we find that the setting in which the proviso to Clause  IV  has
been inserted is of  some  relevance.   The  State  Governments  across  the
country are not in a position to provide health care  facilities  in  remote
and difficult areas in the State for want of Doctors.[11]  In fact there  is
a proposal to  make  one  year  service  for  MBBS  students  to  apply  for
admission to Post  Graduate  Courses,  in  remote  and  difficult  areas  as
compulsory. That is kept on hold, as was stated before the Rajya Sabha.  The
provision in the form of granting weightage  of  marks,  therefore,  was  to
give incentive to the in-service candidates and to  attract  more  graduates
to join as Medical Officers in the State Health Care Sector.  The  provision
was first inserted in 2012. To determine the academic merit  of  candidates,
merely securing high marks in the NEET is not enough.   The  academic  merit
of the candidate must also reckon the services rendered for  the  common  or
public good.  Having served in rural and difficult areas of  the  State  for
one year or above, the incumbent having sacrificed his career  by  rendering
services for providing  health  care  facilities  in  rural  areas,  deserve
incentive marks to be reckoned for determining  merit.  Notably,  the  State
Government is posited with the discretion  to  notify  areas  in  the  given
State to be remote, tribal or difficult areas. That declaration is  made  on
the basis of decision taken at the highest level; and is applicable for  all
the beneficial schemes of the State for such areas and not  limited  to  the
matter of  admissions  to  Post  Graduate  Medical  Courses.  Not  even  one
instance has been brought to our notice to show that some  areas  which  are
not remote or difficult areas has been so notified. Suffice  it  to  observe
that the mere hypothesis that the State  Government  may  take  an  improper
decision whilst notifying the area as remote and difficult,  cannot  be  the
basis to hold that Regulation 9 and in particular proviso to  Clause  IV  is
unreasonable. Considering the above, the inescapable conclusion is that  the
procedure evolved in Regulation 9 in general and the proviso to Clause  (IV)
in particular is just, proper and reasonable and also fulfill  the  test  of
Article 14 of the Constitution, being in larger public interest.

36.    The  last  question  that  needs  to  be  answered  is  whether   the
arrangement directed in terms  of  order  dated  12.05.2016  by  this  Court
should have prospective effect or also  apply  to  admissions  for  academic
year 2015-16. Ordinarily, as the subject  matter  of  challenge  before  the
High Court  was  pertaining  to  Academic  Year  2015-16,  the  dispensation
directed in terms of  Order  dated  12th  May  2016  should  apply  thereto.
However, considering the fact that  the  said  admission  process  has  been
completed and all concerned have acted upon  on  that  basis  and  that  the
candidates admitted to the respective Post Graduate Degree  Courses  in  the
concerned colleges  have  also  commenced  their  studies,  it  may  not  be
appropriate to unsettle that  position  given  the  fact  that  neither  the
direct candidates nor the eligible in-service candidates who had  worked  in
remote and/or difficult areas in the State approached  the  Court  for  such
relief. It is only the in-service candidates who had not  worked  in  remote
and/or difficult areas in the State approached the Court for  equating  them
with their counterparts who had worked in remote and/or difficult  areas  in
the matter of reservation of seats for in-service  candidates.  If  at  this
distance of time, the settled admissions were to be  disturbed  by  quashing
the entire admission process for Academic Year 2015-16, it would  inevitably
result in all the seats in the State almost over  500  in  number  remaining
unfilled for one academic year; and that the candidates to  be  admitted  on
the basis of fresh list for Academic Year 2015-16 will have  to  take  fresh
admission coinciding with the admissions for  Academic  Year  2016-17.  That
would necessitate doubling the strength of seats in the respective  colleges
for the current Academic Year to accommodate all those students,  which  may
not be feasible and is avoidable.  In the peculiar facts  on  hand,  we  may
instead mould  the  relief  in  the  appeals  before  us  by  directing  all
concerned to follow the admission process  for  Academic  Year  2016-17  and
onwards strictly in conformity with the Regulations in force, governing  the
procedure for selection of  candidates  for  Post  Graduate  Medical  Degree
Courses and including determination of relative merit of the candidates  who
had appeared in NEET by giving weightage of incentive marks to eligible  in-
service candidates.

37.   We must hold that the High Court was justified in quashing the  stated
Government Order providing for reservation to in- service candidates,  being
violative of Regulation 9 as in force.  However,  we  modify  the  operative
direction given by the High Court and instead direct that admission  process
for Academic Year 2016-17 onwards to the Post Graduate Degree Course in  the
State should proceed as per  Regulation  9  including  by  giving  incentive
marks to eligible in-service candidates in terms of proviso to Clause IV  of
Regulation 9 (equivalent to third proviso to  Regulation  9(2)  of  the  Old
Regulations reproduced in the interim  order  dated  12th  May  2016).   We,
accordingly, mould the operative order of the High  Court  to  bring  it  in
conformity with the direction contained in  the  interim  order  dated  12th
May, 2016 but to be made applicable to Academic Year 2016-17 onwards on  the
basis of Regulation 9 as in force. We are conscious of the  fact  that  this
arrangement is likely to affect some of the  direct  candidates,  if  not  a
large number of candidates whose applications were already processed by  the
competent Authority for concerned Post Graduate Degree Course  for  Academic
Year 2016-17. However, their admissions cannot be validated in breach of  or
disregarding the mandate of Regulation 9, as in force. The  appeals  against
the judgment of the High Court of Judicature at Allahabad dated  7th  April,
2016 are disposed of accordingly.

38.   Reverting to the second set of appeals arising from  the  judgment  of
the High Court of Judicature at Allahabad,  Lucknow  Bench  dated  27th  May
2016 in Writ Petition No.12004/2016 we have no hesitation in  upholding  the
view taken by the High Court that the direction to prepare fresh merit  list
vide interim order dated 12th May 2016 was in respect of only such  eligible
in-service candidates as had submitted applications for  admission  to  Post
Graduate Degree Courses for the relevant  academic  year  within  stipulated
time. The direction in the interim order dated 12th  May  2016  was  not  to
consider all  similarly  placed  persons  (eligible  in-service  candidates)
irrespective of whether they had made applications  for  admission  to  Post
Graduate Degree Courses or otherwise. Hence, this appeal must fail.

39.   In so far as Writ Petition No.372/2016 even that  should  fail  as  we
have  held  Regulation  9  to  be  a  complete  Code  and  a  provision  for
determining inter-se merit of the candidates including by  giving  weightage
of marks as incentive to eligible in-service candidates who have  worked  in
notified remote or difficult areas in the State, which is  just,  reasonable
and necessary in larger public interest.

40.   We make it clear that we have not  examined  the  correctness  of  the
fresh merit list prepared by the concerned Authority  in  terms  of  interim
order dated 12.05.2016. If any candidate is aggrieved on  account  of  wrong
placement in the fresh merit list or being in violation  of  this  decision,
will be free to question the same by way of  appropriate  proceedings.  That
challenge can be considered on its own merit.

41.   Accordingly, the appeals as well as Writ Petition are disposed  of  in
the above terms and for the same reasons the accompanying  applications  are
also disposed of.  No order as to costs.


                             .........................................CJI
                                                           (T.S.Thakur)


............................................J.
                                                     (A.M.Khanwilkar)


............................................J.
                                                (Dr.D.Y.Chandrachud)
New Delhi.
August 16, 2016
-----------------------
[1]

      [2] (2015) 6 SCC 685
[3]

      [4]  (1999) 7 SCC 120
[5]

      [6] 2002 (1) SCC 428
[7]

      [8]   2003 (7) SCC 83
[9]

      [10]  (1986) 3 SCC 727
[11]

      [12]  (1992) 2 SCC 267
[13]

      [14]  (2000) 1 SCC 44
[15]

      [16]  (1975) 1 SCR 267
[17]

      [18]  (1979)1 SCC  572 (para 16)
[19]

      [20]  (1998) 6 SCC 131
[21]

      11.Rural Health Statistics for 2014-15 published by the Government of
India, Ministry of Health & Family Welfare depicting the shortage of
doctors in rural areas particularly State of Uttar Pradesh, which reads
thus:
       Qualification       Required        Sanctioned      In position
 Vacant         Shortfall
           MBBS                    3497               4509
2209                 2300            1288
          Doctors at
          Primary Health
          Centres(“PHC’s”)
          Specialists              3092              2099
  484               1615             2608
         At Community
         Health Centres
         (“CHC’s”)

____________________________________________________________________________
_________________


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.