[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”)
____________________________________________________________________________
_________________
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”)
____________________________________________________________________________
_________________
