the doctors who are already undergoing the postgraduate degree courses on the basis of being successful in 241 the original writ petition filed in the High Court at Calcutta shall not be disturbed from pursuing the said course. The same direction shall also cover successful medical students who have already undertaken admission in postgraduate medical degree courses following the applicable admission process and are pursuing their postgraduate studies in the States of Gujarat, Haryana, Kerala, Maharashtra and Tamil Nadu.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 196 OF 2018
Tamil Nadu Medical Officers Association & Ors. ..Petitioner(s)
Versus
Union of India & Others                     ..Respondent(s)
WITH
WRIT PETITION (CIVIL) No. 252 OF 2018
WRIT PETITION (CIVIL) No. 295 OF 2018
WRIT PETITION (CIVIL) No. 293 OF 2018
CIVIL APPEAL NO.  3025  OF 2020
(@ SLP (CIVIL) No. 26665 of 2019)
CIVIL APPEAL NOS.  3026­29 OF 2020
(@ SLP (CIVIL) Nos. 25487­25490 of 2019)
CIVIL APPEAL NOS.  3030­31 OF 2020
(@ SLP (CIVIL) Nos. 26448­26449 of 2019)
CIVIL APPEAL NOS.  3032­35 OF 2020
(@ SLP (CIVIL) Nos. 26507­26510 of 2019)
CIVIL APPEAL NO. 3036 OF 2020
(@ SLP (CIVIL) No. 26648 of 2019)
CIVIL APPEAL NO. 3037 OF 2020
(@ SLP (CIVIL) No.10289/2020 @
 Diary No. 42890 of 2019)
J U D G M E N T
PER M.R. SHAH, J.
Leave & permission granted in the respective special leave
petitions.
2
2. After considering the judgment rendered by a three Judge
Bench of this Court in the case of State of U.P. v. Dinesh Singh
Chauhan1
, another three Judge Bench, pursuant to order dated
13.4.2018 in the case of T.N. Medical Officers Association v. Union
of India2
,   has referred the present batch of cases to a larger
Bench.
2.1 In the case of Dinesh Singh Chauhan (supra), a three Judge
Bench construed the provisions of Regulations 9(IV) and 9(VII) of
the MCI Postgraduate Medical Education Regulations, 2000, as
amended   on   15.2.2012   (hereinafter   referred   to   as   the   “MCI
Regulations 2000”).  In the case of Dinesh Singh Chauhan (supra),
while considering the aforesaid Regulations, this Court held that
the aforesaid Regulations do not provide for any reservation for
in­service   government   doctors   in   PG   degree   courses,   and
therefore, the State Government order providing the reservation
for PG degree courses for in­service government doctors is held to
be illegal.
2.2 The   present   batch   of   cases   came   up   for   hearing   before
another Bench of three Judges.  The Bench was of the opinion
1 (2016) 9 SCC 749
2 (2018) 17 SCC 478
3
that the present batch of cases require consideration by a larger
Bench and that is how the present batch of cases are referred to
a larger Bench.   On the basis of the submissions made, the
following reasons were mentioned:
“(i) The decision in Dinesh Singh Chauhan1
 has not considered
the entries in the legislative lists of the Seventh Schedule, more
particularly Entry 66 of the Union List and Entry 25 of the
Concurrent List;
(ii)   The   main   contention   of   the   petitioners   is   that   while
coordination and determination of standards in institutions for
higher education falls within the exclusive domain of the Union
(Entry   66   List   I),   medical   education   is   a   subject   in   the
Concurrent List (Entry 25 List III). Though, Entry 25 of List III is
subject to Entry 66 of List I, the State is not denuded of its
power   to   legislate   on   the   manner   and   method   of   making
admissions to postgraduate medical courses;
(iii) The contentions which have been raised in the present
batch   of   petitions   were   not   addressed   before   this   Court   in
Dinesh Singh Chauhan1;
(iv)   The   judgment   in  Dinesh   Singh   Chauhan1
  does   not
consider   three   decisions   of   the   Constitution   Bench   in  R.
Chitralekha v. State of Mysore (1964) 6 SCR 368 :AIR 1964 SC
1823,  Chitra Ghosh  v.  Union of India  (1969) 2 SCC 228  and
Modern Dental College & Research Centre v. State of M.P. (2016)
8 SCC 353; and
(v) There are decisions rendered by Benches of  an equal
strength as in Dinesh Singh Chauhan1
.”
2.3 Now so far as Civil Appeals arising out of the Special Leave
Petitions(C) Nos.26448­26449 of 2019 are concerned, they arise
out of the impugned judgment and order dated 01/10/2019 in
MAT Nos. 1245 and 1267 of 2019 passed by the High Court at
Calcutta, by which the Division Bench of the High Court has
4
dismissed the batch of appeals confirming the order passed by
the learned Single Judge holding that the State has no authority
to reserve 40% seats for the in­service doctors and 60% seats for
open category doctors.
2.4 In Writ Petition (Civil) No. 196 of 2018 filed under Article 32
of the Constitution of India, the petitioners – Tamil Nadu Medical
officers’ Association and others, for and on behalf of the in­service
doctors in the State of Tamil Nadu have prayed for the following
reliefs:
a) declare by issuance of a writ of mandamus or any
other suitable writ/order/direction that Regulation 9 of
the Post Graduate Medical Education Regulations, 2000
(more particularly, Regulation 9(IV) and 9(VII), does not
take away the power of the States under Entry 25, List III
to provide for a separate source of entry for in­service
candidates seeking admission to Degree courses;
b) Alternatively, if Regulation 9 of the Post Graduate
Medical Education Regulations, 2000 is understood to
now allow for States to provide for a separate source of
entry   for   in­service   candidates   seeking   admission   to
5
Degree   courses,   declare,   by   issuance   of   a   writ   of
mandamus or any other suitable writ/order/direction,
Regulation  9  (more  particularly,  Regulation  9(IV)  and
9(VII) as being arbitrary, discriminatory and violative of
Article 14 and 19(1)(g) of the Constitution and also ultra
vires the provisions of the Indian Medical Council Act,
1956.
Somewhat similar prayers are also sought for on behalf of
the in­service doctors in the State of Kerala (Writ Petition (Civil)
No.   252/2018);   in­service   doctors   working   in   the   State   of
Maharashtra (Writ Petition (Civil) No. 295/2018); and for and on
behalf of the in­service doctors working in the State of Haryana
(Writ Petition (Civil) No. 293 of 2018).
2.5 IA   Nos.61442,   61443   and   61445   of   2020   have   been
preferred by the GMS Class II Medical Officers Association being
aggrieved by the Public Notice dated 28.02.2019 as amended by
the Corrigendum dated 10.03.2019, wherein, Medical Council of
India has permitted the conversion of Diploma seats into Degree
seats in the State of Gujarat. The said application is filed for and
6
on behalf   of   in­service   Medical   Officers   working  in   the   State   of
Gujarat.
2.6 IA No.24759 of 2020 in Writ Petition (Civil) No. 258 of 2018
has   been   preferred   by   Kerala   Government   Insurance   Medical
Association and others supporting the reservation for in­service
Medical   Officers/Candidates   in   the   Post­graduate   Degree
Courses.
3. Learned   counsel   appearing   on   behalf   of   the   respective
petitioners/parties,   more   particularly,   Tamil   Nadu   Medical
Association,   State   of   Tamil   Nadu,   State   of   West   Bengal   and
others   in   support   of   the   reservation   for   in­service   Medical
Officers/ Candidates/Doctors in Post­graduate Degree Courses
have made the following submissions:
3.1. The   moot   question   is   whether   the   State   Government   is
competent to provide for a reservation for candidates who are
already serving the Government. Such reservation is made for
Post­graduate seats in the different medical colleges in the State.
The competence of the State Government is traceable to Article
245 r/w Entry 25 List III of the 7th schedule to the Constitution.
It cannot be said that there has to be a legislature made law to
7
provide for such reservation. The Government can in exercise of
its power as an Executive under Article 154 provide for such
reservation and it has been so provided as well.
Once competence is found in favour of Government then
only question is one of a possible conflict with a Central Law and
the resolution of any question of repugnancy. It is submitted that
said question really does not arise in the present case;
3.2. The competence of the State Government to bring about a
law dealing with admissions of in­service candidates is upheld by
the Constitutional Bench of this Court in the case of  Modern
Dental   College   and   Research   Centre   and   Others   vs.   State   of
Madhya Pradesh and Others3
. The argument raised on behalf of
the Centre that Entry 25 of List III itself would be subject to
Entry 66 of List I has also been considered by this Court;
3.3. There is no question of any conflict of Entry 25 of List III
and Entry 66 of List I. The subject of admission to courses is
referable to Entry 25 of list III and not Entry 66 of List I. It is
submitted that conflict, if any, can only be between a State Law
3 (2016) 7 SCC 353
8
and a Central Law both sourced to Entry 25 of List III. That no
such conflict is present in the instant case;
3.4. There is no plenary law by the Centre provided for any
reservation for in­service candidates. In other words, there is no
Central Law governing the said aspect, therefore, it would be
competent for the State Government to provide for a reservation
for in­service candidates. In the absence of a Central Law, it is
obviously open to the State Government to provide for a legal
instrument, whether by way of a statute or by an executing order
providing a reservation for in­service candidates;
3.5. The   MCI   Regulations,   2000,   which   are   made   under   the
Medical Council Act provide for a reservation in Post­graduate
Diploma   Courses   for   in­service   candidates   serving   with   the
respective   State   Governments.   There   is   no   bar   to   such
reservation in Post­graduate Degree Courses. The bar, if any, has
to be express and cannot be implied. Clause 9(IV) of the MCI
Regulations, 2000 can be construed as provided for community
reservations   and   also   a   reservation   for   in­service   candidates.
Even   otherwise,   it   does   not   enable   explicitly   the   State
Government to provide for a weightage in marks, amongst in­
9
service candidates. Thus, the legislative instrument which could
be sourced to the MCI, which in turn is a body established by the
Central   Government   under   the   Medical   Council   Act   itself
recognizes an empowerment of the State Government, inter alia,
to lay down the modalities to regulate or provide for a reservation
for in­service candidates in Post­graduate seats. If that be so,
then   the   actual   prescription   of   a   reservation   for   in­service
candidates, in relation to Post­graduate Degree seats obviously
has not come into conflict with the MCI Regulations, 2000 so as
to attract Article 254 of the Constitution; 
3.6. The MCI Regulations, 2000, not expressly providing for a
reservation   in   Post­graduate   Degree   seats,   specifically
empowering the State Government to do so, but only touches
upon the reservation in Diploma seats, it does not follow that the
State Government is incompetent to provide for reservation for
in­service candidates in Degree seats as well. The competence of
the State Government to provide for reservation for in­service
candidates is not sourced to the MCI Regulations, 2000, but it is
sourced to Entry 25 of List III. Thus, the absence of any mention
of reservation for candidates in Post­graduate Degree seats in the
10
Regulations, 2000 cannot support a submission by the MCI that
consequently   the   State   Government   would   be   incompetent   to
provide for any reservation for in­service candidates in Degree
seats;
3.7. The   MCI   Regulations,   2000   would   become   relevant   only
when it provides for reservation in Post­graduate Degree seats
and the State Government brings about a policy of reservation in
Post­graduate Decree seats at variance from the protocol laid
down in the MCI Regulations. The MCI Regulations, 2000 are
silent in regard to the reservation in Post­graduate Degree seats
and   therefore,   possible   repugnancy   under   Article   254   of   the
Constitution of India really cannot arise between an instrument
by   the   State   Government   and   an   instrument   by   the   Central
Government which does not cover the subject or touch upon the
subject provided for by the State Government;
3.8.  Assuming without admitting that though MCI Regulations
do provide for a conversion of Diploma seats into Degree seats, by
the State Government with the approval of the MCI, the MCI
Regulations, 2000 do not specifically mention the consequences
of such conversion. When law provides for a particular event to
11
take   place   then   all   reasonable   consequences   that   emanates
therefrom   should   also   be   inferred,   should   be   applied   to   the
present situation as well;
3.9. Even   MCI   Regulations,   2000   themselves   provide   for
reservation   for   in­service   candidates   in   Diploma   and   also
provides for service condition to be fulfilled thereunder.   The
conversion of Diploma seats into Degree seats (now after 2018)
would obviously result in the same permissible reservation for inservice candidates to be provided for Degree seats as well. All that
would be required is the imposition of the same conditions as are
provided in the Diploma seats;
3.10.The   decision   of   this   Court   in   the   case   of  Dinesh   Singh
Chauhan (Supra) also requires re­look in view of the subsequent
development viz. Notification dated 12.07.2018 by which, MCI
has permitted the Medical College/Medical Institution to “seek
equal   number   of   Post­graduate   Degree   seats   by   surrendering
recognized   diploma   seats   in   corresponding   course”.   It   is
submitted   that   pursuant   to   the   said   Notification   the   medical
colleges/institutions are/were given the option of converting the
available post graduate diploma seats into Post­graduate Degree
12
seats in a 1:1 ratio. It is submitted that pursuant to the said
notification most of the medical colleges/medical institutions in
the   respective   States   have   surrendered   the   Post­graduate
Diploma seats and have converted the same to Post­graduate
Degree seats. It is submitted that resultant effect is that now
there shall not be any Post­graduate Diploma seats available and
therefore, in­service candidates are left in a situation where even
the limited benefit conferred on them in form of 50% reservations
in Post­graduate Diploma Course can no longer be availed. As a
result, in­service candidates have been left in a complete lurch
since they would neither be able to qualify for Post­graduate
Degree course in adequate numbers nor be in a position to avail
the   Post­graduate   Diploma   seats   previously   available   in   the
Government   Colleges.   In   view   of   the   above   development,   the
reasoning in the case of Dinesh Singh Chauhan (supra) as to the
difference in the Regulations between Post­graduate Diploma and
Degree courses no longer survives;
3.11.  Right   of   the   State   Government   to   set   apart   a   definite
percentage of educational seats at Post­graduate level consisting
of Degree and Diploma courses exclusively for a class of persons
13
as a separate source of entry has been repeatedly upheld by this
Court   with   the   condition   that   source   is   properly   classified   –
whether on territorial, geographical or other reasonable basis and
has a rational nexus with the object of imparting a particular
education   and   effective   selection   for   the   purpose.   Reliance   is
placed upon the decision of this Court in the cases of (1) Kumari
Chitra   Ghosh   and   Anr.   vs.   Union   of   India   &   Ors.4
;   (2)   D.N.
Chanchala  vs. The State of Mysore and Ors.5
; (3) K Duraisamy &
Anr vs. State of Tamil Nadu and Ors6
; (4) AIIMS Students Union
vs. AIIMS7
; and (5) State of Madhya Pradesh & Ors vs. Gopal D
Tirthani and Ors8
; 
3.12. It has been consistently held by this Court that there
is   a   legitimate   and   rational   basis   in   providing   a   separate
channel/source   of   entry   for   in­service   candidates   in   order   to
encourage them to offer their services and expertise to the State.
It is submitted that this Court has acknowledged that this has a
sufficient nexus with the larger goal of equalization of educational
opportunities and to sufficiently prefer the doctors serving in the
various hospitals run and maintained out of public funds, in the
4 (1969) 2 SCC 228
5 (1971) 2 SCC 293
6 (2001) 2 SCC 538
7 (2002) 1 SCC 428
8 (2003) 7 SCC 83
14
absence of which there would be serious dearth of qualified Postgraduate doctors to meet the requirements of the common public;
3.13. Unlike   reservation   envisaged   for   Scheduled   Caste/
Schedule Tribes, this is a distinct and vitally important public
purpose in itself absolutely necessitated in the best of public
interest. In the case of Dinesh Singh Chauhan (supra) this Court
has held that no fault can be found with the method of providing
a   separate   channel   of   entry   for   in­service   candidates   for   the
reason that the facilities for keeping up with the latest medical
literature might not be available to such in­service candidates
and the nature of the work makes it difficult for them to acquire
knowledge   about   very   recent   medical   research,   which   the
candidates who has come after freshly passing their graduation
examination might have;
3.14.In the case of  Modern Dental College and Research Centre
(supra), the Constitution Bench of this Court has affirmed that
even though Entry 25 List III is subject to Entry 66 List I, the
power of States to enact laws concerning admissions would not
stand extinguished so long as such laws did not have the effect of
wiping out the law enacted by the Union under Entry 66 List I;
15
3.15.When the States create a separate source of entry for inservice candidates, the standards of medical education are not
impinged inasmuch as;
(a). only eligible in­service candidates can qualify i.e.
those have obtained minimum eligibility marks;
(b). amongst eligible in­service candidates admission is
made based on inter­se­merit;
(c). The preferential weightage would merely alter the
order in which in –service candidates would rant in the
merit list prepared for in­service candidates. Thus, it
would not be a case of ‘double reservation’;
3.16.As held by this Court in the case of  Yatinkumar Jasubhai
Patel  &  Ors  vs.  State   of   Gujarat  and   Ors9
, which was in the
context   of   “institutional   preference”   for   Post­graduate   Medical
Admission, only obligation by virtue of introduction of NEET is
that the State cannot hold any separate test for admissions to
Post­graduate   courses.   As   observed,   even   while   giving   the
admission in the State quota/institutional reservation quota, the
merit   determined   on   the   basis   of   NEET   will   still   have   to   be
considered. It is submitted that therefore, provision of a separate
source   of   entry   for   in­service   candidates   shall   not   dilute   the
standards   of   higher   education   in   any   manner   since   the
9 (2019) 10 SCC 1
16
candidates in question would still have to obtain the minimum
merit prescribed under NEET;
3.17. The reservation referred in the opening part of Regulation
9(IV) is only with respect to reservation as per the constitutional
scheme i.e. SC, ST and OBCs and not for in­service candidates or
Medical Officers in–service. This is also acknowledged by this
Court in the case of Dinesh Singh Chauhan (supra) in para 25.4.
It is submitted that therefore, there is no merit in the statement
of defence by the respondent that in­service candidates for Postgraduate Degree Course are already governed by the reservation
provided for in Regulation 9(IV);
3.18.It   is   submitted   that   so   far   as   State   of   Tamil   Nadu   is
concerned, the Hon’ble Chief Minister of Tamil Nadu in his letter
dated 25.4.2017 to the Hon’ble Prime Minister, has highlighted
that   providing   only   30%   weightage   to   in­service   candidates
seeking admission to Post­graduate Degree Course is not enough
since if this procedure is followed, out of the 557 Post­graduate
government seats available under the State quota in Tamil Nadu,
only   20   seats   would   go   to   in­service   quota   candidates.   It   is
submitted that vide letter dated 6.2.2019, the State of Tamil
17
Nadu wrote to the Ministry of Health and Family Welfare and
highlighted   the   contribution   of   the   policy   to   provide   50%
reservation   for   in­service   candidates   in   Post­graduate   degree
courses in attracting meritorious Doctors to Government service
and also enabling the State Government to provide uninterrupted
health care in rural, difficult and remote areas of the State. It is
submitted that it was further highlighted that this reservation
was critical for the maintenance of quality health care in the
government medical facilities;
3.19.Learned counsel appearing on behalf of the State of Tamil
Nadu has highlighted the benefits to be achieved by providing
50%   reservation   for   in­service   candidates   in   Post­graduate
Degree/ Diploma Courses. It is submitted that continuance of
given   incentive   marks   and   reserving  50%   seats   for   in­service
candidates   who   performed   duty   in   remote,   rural   area,   hilly
terrain etc. in Post­graduate courses will sustain the achievement
made by the State Government in the health sector and provide
valuable medical care to the poor and vulnerable society. It is
submitted that therefore, it is in the larger public interest of the
State   that   there   is   a   provision   for   50%   reservation   in   Post­
18
graduate   Degree/Diploma   Courses/seats   for   in­service
candidates;
3.20. So far as the State of West Bengal is concerned, learned
counsel appearing on behalf of the State of West Bengal as well
as Government Doctors serving in the Government Hospitals in
the State of West Bengal in support of the reservation of 40% of
the state quota Post­graduate Medical seats for in­service Doctors
have made in addition to the following submissions:
3.20.1. That the State of West Bengal has enacted the West
Bengal Health Services Act, 1990 for controlling the services of
the in­service doctors. Under Section 21 of the said Act, the State
has the Rule making power and in exercise of that power the
State has enacted the West Bengal Health Service and the West
Bengal Medical Education Service and the West Bengal Health
and Public Administrative Service (Placement on Trainee Reserve)
Rules, 2015. As per the note of Rule 3 of the said Rules, the State
is empowered to make reservation in the seats of the Medical
Courses   of   the   State   Universities   for   its   officers   under   West
Bengal Health Service and the West Bengal Medical Education
Service and the West Bengal Health and Public Administrative
19
Service. It is submitted that such note was also there in the
Rules of 2008, which came to be repealed in view of enactment of
Rules 2015. That the Government vide order dated 18.4.2013
provides   for   the   reservation   of   40%   of   the   State   quota   Postgraduate Medical seats for the in­service doctors in exercise of
such power;
3.20.2. That the action of the State to provide in­service quota
is in the discharge of its positive constitutional obligations to
promote and provide better health care facilities for its citizens by
upgrading the qualifications of the existing in­service doctors so
that the citizens may get more specialized health care facility.
Such action is in discharge of its constitutional obligations as
provided in Article 47 of the Constitution of India which is the
corresponding fundamental right of the citizens protected under
Article 21 of the Constitution of India;
3.20.3. The State can fix a separate source of admission as the
in­service   doctors   are   distinct   class.   The   classification   has
sufficient   nexus   with   the   laudable   object   of   meeting   the
requirement   of   qualified   Post­graduate   doctors   for   the   public
20
health service. Reliance is placed upon decision of this Court in
the case of Sudhir N vs. State of Kerala and Ors.
10;
3.20.4. By way of providing separate source of entry to the inservice doctors, the State has not impinged upon the minimum
standards   prescribed   by   the   Medical   Council   of   India   as   inservice   candidates   are   selected   on   the   basis   of   their   merit
assessed   on   the   basis   of   their   marks   obtained   in   the   NEET
examination;
3.20.5.   The action of providing separate quota for the inservice doctors is not violative of the Regulation 9(IV) of the MCI
Regulations,   2000   as   the   same   categorically   states   in   an
unambiguous manner, inter alia, that the reservation of seats
shall be as per applicable laws prevailing in the State. By giving
restrictive meaning to the term ‘reservation’ as only constitutional
reservation, it would be putting words to the legislation which is
otherwise   unambiguous   and   includes   all   kinds   of   reservation
including that of in­service;
3.20.6. In­service Doctors come with vast practical experience
of serving several years in the Government Health Services and
10 (2015) 6 SCC 685 (paras 22 to 24)
21
treating countless patients. Whereas the fresh MBBS graduates,
even though may score higher because of their recent connection
with   the   textbooks,   do   not   have   any   such   experience.   Their
marks   are   only   reflective   of   their   theoretical   knowledge   and
ability   to   memorize   and   answer   examination   questions.   It   is
submitted that thus, in­service Doctors having vast experience
and   fresh   graduates   having   no   such   experience,   form   two
different classes and cannot be equated. It is submitted that
forcing in­service Doctors to compete with the fresh graduates in
their theoretical knowledge will be extremely, unfair, illogical and
irrational;
3.21.In   addition,   learned   counsel   appearing   on   behalf   of   the
private appellants in the Civil Appeals arising out of impugned
judgment and order passed by the High Court of Calcutta and inservice candidates have further submitted that the reservation
notification was issued on 18.4.2013 and the writ petition has
been filed after first counselling was over for 2019 admission. All
admissions were completed in May 2019 and 285 doctors out of
the State quota of 699 have almost completed the first semester.
It is submitted that therefore, alternatively it is prayed to observe
22
that the impugned judgment and order passed by the High Court
may not affect the admission already granted and may not affect
those in­service candidates who are already admitted prior to
filing of the petition / impugned judgment and order passed by
the High Court;
4. The   applicant   of   IA   No.61442   of   2020   –   GMS   Class   II
Medical   Officer’s   Association   and   Association   of   in­service
Government Medical Officers in the State of Gujarat are as such
aggrieved by the Public Notice dated 28.02.2019,  as amended by
a Corrigendum dated 10.03.2019, wherein  Medical Council of
India has permitted the conversion of Diploma seats into Degree
seats on the ground of doctrine of Legitimate Expectation and on
the ground that the same is in  teeth of and to bypass the order
passed by this Court dated 19.5.2017 in the matter of Special
Leave Petition (Civil) No.31395 of 2017. It is submitted that in the
aforesaid case this Court directed the State of Gujarat to conduct
the counselling keeping in view the regulation which provides for
50% of seats to be reserved in the Post­graduate Diploma Courses
for Medical Officers in the government service who have served for
at least three years in remote and/or difficult areas.  It is the case
23
on   behalf   of   those   in­service   Medical   Officers   working   in   the
Government Colleges in the State of Gujarat that by the aforesaid
vested rights in favour of those in­service candidates and to avail
50% reservation in Post­graduate Diploma Courses have been
taken away. It is their case that what cannot be done directly,
shall not be permitted to be done obliquely. It is also their case
that so far as the State of Gujarat is concerned, there is no
provision   for   giving   30%   incentive   for   Post­graduate   Degree
Courses displaced in Clause 9(IV) of the MCI Regulations, 2000. It
is submitted that therefore, on one hand Diploma seats are being
decreased   and   on   the   other   hand   there   is   no   provision   for
providing incentive marks in the Degree Courses to the in­service
Medical Officers, who have worked in rural areas. It is submitted
that   the   applicant   has   already   filed   writ   petition   before   the
Gujarat High Court being Special Civil Application No.5773 of
2019 challenging the vires of Rule 6 of the Gujarat Professional
Post­graduate   Medical   Educational   Courses     (Regulation   of
Admission) Rules, 2018 as well as conversion of Diploma seats
into Degree seats and the same is pending;
24
4.1. Learned counsel appearing on behalf of the respective
writ   petitioners   –   in­service   doctors   have   made   the   following
submissions   in   respect   of   their   alternative   prayer/prayers   to
declare   Regulation   9,   more   particularly,   Regulation   9(IV)   and
9(VII) of the MCI Regulations, 2000, as arbitrary, discriminatory
and violative of Article 14 and 19(1)(g) of the Constitution of India
and also ultra vires the provisions of the Indian Medical Council
Act, 1956;
4.2 That so far as the State of Tamil Nadu is concerned, it is
submitted that since the year 1989, the State of Tamil Nadu has
had a policy of providing a separate source of entry to in­service
candidates to the extent of 50% of the State seats in degree
courses.  Further, since the year 2007, by way of a Government
Order, the State of Tamil Nadu has also provided for preferential
weightage   to   those   in­service   candidates   who   have   served   in
rural, hilly and difficult areas.  Therefore, the policy of the State
Government has been adopted with a view to ensure adequate
healthcare in the public sector and to further ensure filling of
vacancies in government hospitals, particularly in rural, hilly and
difficult areas.  That the aforesaid policy following by the State of
25
Tamil Nadu has resulted in drastic improvement in the overall
public healthcare with adequate staffing across the State and
improvement in health indicators, particularly when compared to
other States in the country;
4.3 Learned   counsel   appearing   on   behalf   of   the   in­service
candidates working with the State of Kerala has submitted that
the State of Kerala had a policy of reserving 40% of the seats
available   in   postgraduate   medical   admission   for   in­service
candidates serving in  the  Health Service Department,  Medical
College Lecturers and doctors serving in the ESI Department of
the   State.   That   MCI   Regulations,   2000,   however,   made   it
mandatory for all candidates seeking admission to postgraduate
medical courses to appear for a common entrance examination.
The MCI Regulations, 2000, inter alia, provide that candidates
who appear in the common entrance examination and secure
50% in the case of general category candidates and 40% in the
case   of   SC/ST   candidates   alone   shall   be   qualified   for   such
admission.     Consequently,   even   in­service   candidates   had   to
appear   and   qualify   in   the   common   entrance   examination.
Considering the hardship faced by the in­service candidates who
26
were working round the clock for the benefit of the public could
hardly find time to update their knowledge and compete with the
general merit candidates, the Government of Kerala brought the
Kerala   Medical   officers   Admission   to   Post   Graduate   Courses
under Service Quota Act, 2008 to overcome the difficulties faced
by in­service candidates in the matter of getting admission to
postgraduate courses;
4.4 Learned   counsel   appearing   on   behalf   of   the   in­service
candidates working with the State of Maharashtra has submitted
that so far as the State of Maharashtra is concerned, the State of
Maharashtra by a resolution dated 06.01.1990, decided to reserve
15% of postgraduate seats in Government Medical Colleges for
the in­service candidates to meet the acute shortage of doctors in
rural   areas.     The   said   resolution   was   issued   to   serve   as   an
incentive for graduate doctors to take up government service at
primary health centres which were suffering due to the acute
shortage   of   doctors   in   rural   areas.     However,   since   the
requirement   of   doctors   was   not   met   with,   the   State   of
Maharashtra   by   another   Government   Resolution   dated
22.02.1996   increased   the   reservation   of   seats   for   in­service
27
candidates from 15% to 25%.  However, in view of the Regulations
framed by the Medical Council of India, the in­service candidates
are suffering and ultimately the public health in the rural, hilly
and remote areas is being suffered and ultimate sufferer is the
public at large in those areas;
4.5 So far as the State of Haryana is concerned, it is the case on
behalf   of   the   in­service   candidates   working   with   the   State   of
Haryana that the State of Haryana had the policy of reserving
27% of the seats in the postgraduate medical courses in the
Government   Colleges   for   in­service   candidates.     However,   the
percentage of seats reserved for the in­service candidates was
increased in 2001 from 27% to 40% until 2016 for admission to
postgraduate medical courses for in­service doctors in Haryana
out of the 50% State quota;
4.6 In   respect   of   their   alternative   prayers   referred   to
hereinabove,   learned   counsel   appearing   on   behalf   of   the
respective petitioners – in­service doctors have made the following
further submissions:
i) In catena of judgments starting from Kumari Chitra Ghosh
(supra); K. Duraisamy (supra); AIIMS Students’ Union (supra); and
28
Gopal D. Tirthani (supra), this Court has repeatedly upheld the
right of the State Governments to set apart a definite percentage
of educational seats at postgraduate level consisting of degree and
diploma courses exclusively for a class of persons as a separate
source of entry, with the condition that the source is properly
classified whether on territorial, geographical or other reasonable
basis and has a rational nexus with the object of imparting a
particular education and effective selection for the purpose;
It is submitted that in the aforesaid decisions, this Court
has upheld providing in­service candidates a separate source of
entry by accepting that the classification of candidates between
in­service   doctors   and   non­service   doctors   has   a   reasonable
nexus with the objective sought to be achieved, i.e., of providing
adequate and affordable healthcare in the public sector;
ii) The power of the State to provide for a separate source of
entry in matters of admission in medical education flows from
Entry 25, List III of the Constitution, whereas the power of the
Union   in   matters   of   “coordination   and   determination   of
standards”   in   matters   of   admission   in   medical   education   is
derived from Entry 66 of List I and Entry 25 of List III;
29
iii) This Court in the case of Modern Dental College (supra) has
specifically held after considering the earlier decisions that Entry
66 of List I was a specific entry having a very specific and limited
scope,   i.e.,   dealing   with   “coordination   and   determination   of
standards” in institutions of higher education or research as well
as scientific and technical institutions.  It has been further held
that the words “coordination  and determination of standards”
would mean laying down the said standard and thus, when it
comes to prescribing the standards for such institutions of higher
learning, exclusive domain is given to the Union.   Insofar as
medical   education   is   concerned,   the   same   is   achieved   by
parliamentary legislation in the form of Medical Council of India
Act, 1956 and by creating a statutory body like Medical Council of
India,   the   functions   of   which   take,   within   its   sweep,
determination   and   coordination   of   standards   in   a   medical
institution   and   that   of   educational   institutions.     It   is   further
observed that when it comes to regulating education as such
which   includes   medical   education   as   well   as   universities
(imparting higher education), that is prescribed in Entry 25 of List
III, thereby giving concurrent powers to both Union as well as
States.   It is further held that the power of the States to enact
30
laws under Entry 25, List III would not stand extinguished so
long as such laws did not have the effect of wiping out the law
enacted by the Union under Entry 66 of List I;
4.7 It is further submitted that the observations of this Court in
the case of Dinesh Singh Chauhan (supra) as regards Regulation 9
prohibiting the States to provide a separate source of entry for inservice candidates require re­consideration inasmuch as:
a) there is no express or implied bar contained in Regulation
9 which prohibits the States from exercising their power under
Entry 25, List III and providing a separate channel of entry to inservice candidates.  On the contrary, the fact that preference is
given   to   in­service   candidates   is   perceived   to   be   a   laudable
objective   by   the   Union   also,   is   evident   from   the   proviso   to
Regulation 9(IV) and Regulation 9(VII).   However, Regulation 9
has not (rightly so) prescribed a uniform policy for a separate
source of entry since only the State, which is fully aware of the
unique and peculiar facts of that State, can, if necessary, provide
for a separate source of entry for that State;
b) that this Court relied upon the findings in  Sudhir N
(supra), to the effect that Regulation 9 is a complete code in itself,
31
to arrive at the conclusion that the State Governments could not
provide   a   separate   channel   of   entry   to   in­service   candidates.
However, this Court failed to  consider that even  in  Sudhir   N
(supra), the case of Gopal D. Tirthani (supra) had been approved
and the impugned law framed by the State of Kerala had been
struck down on account of the State of Kerala giving the inter se
merits of in­service candidates a go­bye by fixing the criteria for
admission as inter se seniority.  Thus, even in Sudhir N (supra),
the power of the State Governments to provide a separate channel
of entry to in­service candidates was affirmed;
c) that this Court did not take into account the fact that by
providing a separate source of entry for in­service candidates,
there   would   be   no   lowering   of   standards   prescribed   by   the
Medical Council of India since eligible candidates would have met
the minimum qualification marks set out in NEET and moreover
the admission would take place based on the inter se merits of
the in­service candidates;
d) that this Court did not take into account the relevant
findings   in   the   case   of  Modern   Dental   College   (supra),   more
particularly, paragraphs 29 and 30;
32
e)  that   this   Court   also   did   not   consider   that   its
interpretation of Regulation 9 in such a manner as to render the
States powerless in the matter of creating a separate source of
entry would be contrary to various decisions of this Court which
have affirmed the right of the State Government to determine the
admission process keeping in view their peculiar conditions with
the   caveat  that   there   is  no   laying  down  of   uniform  standard
prescribed by the Union;
f) that mere incentives as mentioned in Clauses (IV) and
(VII) of Regulation 9 of the Regulations, 2000 with respect to inservice government doctors will result in less number of people
opting Government services thus affecting the under­privileged
and under­served population across the State.  That there is an
absolute dearth of doctors entering Government services since
very   few   MBBS   doctors   join   government   service   after   their
graduation.   This situation affects the under­privileged, underserved and poorest of poor people across the country who prefer
public sector/government run hospitals or primary health centres
for their treatment as they are not in a financial position to afford
the private hospitals. Hence, in order to retain the doctors in
33
government   services   and   continue   with   them   for   a   longer
duration, it is vitally important and absolutely necessitated in the
best of public interest for the States to carve out a separate
channel of entry for the in­service candidates in admission to
postgraduate medical courses.  Heavy reliance is placed upon the
decision of this Court in the case of  Pre­PG Medical Sangharsh
Committee v. Dr. Bajrang Soni11;
g) that   Regulation   9   of   the   Post   Graduate   Medical
Education Regulations, 2000 cannot expressly or impliedly take
away the power of the State Government under Entry 25, List III
to provide either reservation or weightage in marks for all the inservice candidates and in no way providing such reservation for
all     in­service   candidates,   would   be   lowering   the   standard
prescribed by MCI since eligible  candidates  would have met the
minimum qualification  marks set out in the NEET entrance test
and moreover the admission would take place based on inter se
merits of the in­service candidates;
h) that the power of the State Government to provide for
reservation or separate channel of entry for in­service candidates
at the postgraduate level so long as the minimum standards of
11 (2001) 8 SCC 694
34
qualification is maintained has been held to be constitutionally
valid by this Court in catena of decisions;
i) that even otherwise providing reservation for in­service
candidates in postgraduate diploma courses (as per Regulation
9(VII))   only   and   not   providing   any   specific   provision   for
reservation   for   in­service   candidates   in   postgraduate   degree
courses is absolutely arbitrary and colourable exercise of power.
It is submitted that there is no logic and reason to provide for
reservation   only   in   postgraduate   diploma   courses   and   not   in
postgraduate degree courses.  It is submitted that not providing
for   any   reservation   for   in­service   candidates   in   postgraduate
degree courses is discriminatory and violative of Article 14 of the
Constitution of India;
j) that any interpretation of Regulation 9, which allows
for reservation for in­service candidates in diploma courses but
prohibits a separate source of entry for in­service candidates in
degree   courses   therefore   is   wholly   arbitrary   and   without   any
application of mind inasmuch as it completely fails to consider
that the need to adequately staff rural healthcare is not only at a
35
basic level but more so at a specialised level since the shortage of
staff in specialised healthcare is even more acute and serious;
k) that in case Regulation 9 is understood to not provide a
separate   channel   of   entry   for   in­service   candidates   seeking
admission to degree courses, then the same would be ultra vires
Section 20 of the Indian Medical Council Act, 956 inasmuch as
Section 20 only mandates that MCI prescribes the standards of
postgraduate   medical   education,   i.e.,   prescribes   the   minimum
qualification marks but does not in any way empower MCI to
impede the well­recognised right of the States to create a separate
channel for persons it may deem fit;
4.8 If it is understood that MCI Regulations, 2000 provide for
any reservation for in­service candidates in postgraduate degree
courses and do not provide a separate channel of entry for inservice candidates, then the same would be ultra vires to Section
33 of the Indian Medical Council Act, 1956 inasmuch as it would
be beyond the scope and ambit of the MCI to make any provision
for separate channel of entry for in­service candidates;
4.9 The MCI Regulations, 2000 do not and cannot take away the
powers of the respective States to make special provision for in­
36
service candidates, looking to the need and requirement of the
particular State in exercise of the power under Entry 25 of List III
of the Constitution.  It is submitted that “institutional preference”
for postgraduate medical admissions is held to be permissible by
this Court in catena of decisions.  It is submitted that therefore
once   the   “institutional   preference”   for   postgraduate   medical
admissions   within   the   State   quota   is   held   to   be   permissible,
similarly providing a separate channel for in­service candidates in
the form of certain percentage by way of reservation, looking to
the specific need and requirement of the State and that too within
the State quota is certainly permissible and the MCI Regulations,
2000 cannot take away the powers/authority of the concerned
States   to   make   special   provision   for   in­service   candidates   for
postgraduate   medical   admissions   within   the   State   quota   and
without compromising the merits, namely, following the minimum
eligibility criteria framed by the MCI;
4.10 Learned  counsel  appearing  on   behalf  of   some  of   the  inservice  candidates  working  with  the  State  of  West  Bengal, in
addition, has made the following submissions:
37
a) that the Indian Medical Council Act, 1956 has been
enacted for the sole purpose of coordination and determination of
standards in exercise of the power of the Union Legislature under
Entry   66   of   List   I   of   Schedule   VII.    The  power   of   regulating
“Education” as such is prescribed in Entry 25 of List III giving
concurrent   power   to   both   States   and   the   Union.     The   entire
gamut of admission is not covered under Entry 66 of List I of
Schedule VII excluding Entry 25 of List III, though Entry 25 of
List III is subjected to Entry 66 of List I;
b) that there is no conflict between the power of the Union
and the States. The occupied field of Union Legislation is only
related to minimum standards of medical education and the State
has   provided   for   in­service   quota   without   impinging   the
prescribed minimum standards;
c) that the power of the State in providing reservation has
to be tested within the Constitutional framework and the State
has not travelled beyond its powers in providing quota for the inservice doctors in postgraduate medical admission and the same
has been provided within the framework of the Constitution of
India;
38
d) that the power of the State under Entry 6 of List II of
Schedule VII to legislate in the subject matter of public health
and hospital is exclusive.  The State of West Bengal has enacted
the West Bengal Health Services Act, 1990 under such exclusive
legislative power.  Under Section 21 of the said Act, the State has
the Rule making power and in exercise of that power the State
has enacted the West Bengal Health Service and the West Bengal
Medical   Education   Service   and   the   West   Bengal   Health   and
Public Administrative Service Rules, 2015.   That as per Note of
the Rule 3 of the said Rules, the State is empowered to make
reservation   in   the   seats   of   the   medical   courses   of   the   State
Universities for its officers under West Bengal Health Service.
The Government Order dated 18.04.2013 provides reservation of
40% of the State quota in the postgraduate medical seats for the
in­service doctors.  Such Note is a part of the Statute;
e) that the action of the State to provide for the in­service
quota is in the discharge of its positive constitutional obligations
to promote and provide better health care facilities for its citizens
by upgrading the qualifications of the existing in­service doctors
so that the citizens may get more specialized health care facility.
39
Such   action   of   the   State   is   indeed   in   discharge   of   its
constitutional   obligations   as   provided   in   Article   47   of   the
Constitution of India which is the corresponding fundamental
right of the citizens protected under Article 21 of the Constitution
of India;
f) that the power of the State under Entry 6 of List II of
Schedule VII is exclusive and the same is not subject to any other
entry of the List I.  The Court cannot give an interpretation which
may make such independent entry subject to any entry of List I
which was not the intention of the framers of the Constitution of
India;
g) that the State can fix a separate source of admission as
the in­service doctors are distinct class.   The classification has
sufficient   nexus   with   the   laudable   object   of   meeting   the
requirement   of   qualified   postgraduate   doctors   for   the   public
health service;
h) that the observations made by this Court in the case of
Sudhir N (supra) that Regulation 9 is a complete code by itself is
required to be considered with reference to the context and the
controversy   in   the   said   case.     It   is   submitted   that   the
40
observations in the case of Sudhir N (supra) that Regulation 9 is a
complete code in itself may not be construed with respect to
providing   reservation   and/or   making   special   provision   like
providing separate source of entry for in­service candidates within
the State quota and subject to fulfilling all other eligibility criteria
fixed and provided by the MCI.  It is submitted that in that sense
the observations made by this Court in  Dinesh Singh Chauhan
(supra)  that   as   held   by   this   Court   in  Sudhir   N   (supra)  that
Regulation 9 is a complete code in itself including the reservation
may not be accepted and is not a good law;
i) it is further submitted that even as provided under
Regulation 9(IV) of the MCI Regulations, 2000, the reservation of
seats   shall   be   fixed   as   per   the   prevailing   laws   in   the   State.
Therefore, by giving restrictive meaning to the term “reservation”
as only constitutional reservation, it would be putting words to
the legislation which is otherwise unambiguous and includes all
kinds of reservation including that of in­service;
4.11 It is submitted by the learned counsel appearing on behalf of
the State of West Bengal that if Regulation 9(IV) is considered to
be limited only to reservations in favour of SC/ST/OBC, then the
41
proviso is not in the form of an exception as it is independently
dealing   with   in­service   doctors.     The   proviso   then   becomes
substantive provision and is more concerned with the marks to be
allocated which is the concern of Regulation 9(III).  This proviso
confers   a   discretion   on   the   State   to   provide   for   weightage   in
marks for services rendered in remote or difficult areas.   The
proviso was required because Regulation 9(III) prescribes for the
obtaining of minimum marks in the NEET exam.   The States
could  not  have  relaxed  or tinkered with  the  marking system.
Therefore, proviso enables the State by conferring a discretion to
provide for weightage.   The proviso has nothing to do with the
reservation in the postgraduate degree courses and it will not
negate the States power to make reservation; 
4.11.1 Regulation   9(VII)   provides   that   50%   of   the   seats   in
postgraduate   diploma   courses   shall   be   reserved   for   medical
officers in the government service.  Firstly, this Regulation merely
deals with diploma courses and has no relevance to postgraduate
degree courses. Secondly, this provision makes it an obligation on
the part of the State to reserve 50% seats for in­service doctors.
The State, is therefore, left with no discretion and is bound to
42
make such reservations in diploma courses.  This provision would
not negate the discretionary power of the State Government to
make reservation for in­service doctors.
4.11.2 Regulation 9 contains no specific clause or expression
which would indicate that the field of making reservations for inservice   doctors   in   the   postgraduate   degree   courses   has   been
covered.  Hence, Regulation 9 is not a complete and exhaustive
code;
4.11.3 That   by   making   Regulation   9(IV)   and   9(VII),   the
intention is not to exclude reservation for in­service candidates in
postgraduate degree courses.  If the language in the provision was
instead of ‘may be given’, ‘shall be given’, the proviso could have
become mandatory.  Consciously such mandatory language is not
used in the proviso.  However, if the mandatory language in the
nature of ‘shall be given’ was used, then the only way the States
could have recognised the in­service candidates entitlement to
postgraduate   courses   would   have   been   by   way   of   granting
incentive   as   provided   therein.     Since   the   language   does   not
indicate that such course is mandatory and is only an enabling
provision,   the   State   Rules/Act   or   directions   issued   by   the
43
respective  State  Governments  providing for  reservation   for  inservice   candidates   in   postgraduate   degree   courses   is   not
incompatible with the proviso to clause IV of Regulation 9.  It is
submitted that unless there is express or implied prohibition of
reservation of seats, contained in the MCI Regulations, for inservice candidates in admission to postgraduate degree courses,
no incompatibility between the two arises.
5. Learned counsel appearing on behalf of the Medical Council
of India has made the following submissions against the power of
the States to make reservation of seats for in­service candidates
in Post­graduate Degree Courses and also in favour of validity of
the Regulation 9 of the MCI Regulations, 2000:
5.1. MCI has framed a comprehensive scheme for admission to
Post­graduate   Medicine   (Degree   and   Diploma)   Courses   in   the
form of Regulation 9 of the MCI Regulations, 2000. The scheme
envisaged   under   Regulation   9   for   admission   to   Post­graduate
Medicine (Degree and Diploma) is to be read as a whole. The
Regulation 9 when read as a whole show that it is in­service
doctors, i.e. doctors who have served in remote and difficult or
rural   areas   notified   by   the   State   Government,   are   given   the
44
maximum benefit under the said scheme as compared to other
candidates. The benefit given to the in­service doctors is in the
form of; (1) reservation in Post­graduate diploma courses; and (2)
grant of incentive marks in terms of Regulation 9(IV) of MCI
Regulations, 2000. The option of availing incentive marks for
Post­graduate   degree   courses   or   seeking   reservation   in   postgraduate degree courses is only available to in­service candidates
and the said option is not available to a non­service candidate;
5.2. Indian   Medical   Council   Act,   1956   and   the   Regulation
framed thereunder are traceable to Entry 66 of List I of Schedule
VII of the Constitution of India and Entry 66 of List 1 provides for
“Co­ordination and Determination of Standards” in the field of
higher   and   technical   education   or   research.   The   standard,
criteria, manner and basis of granting admission in medicine
courses fall within the exclusive domain of the Medical Council of
India. Regulation 9(IV) prescribes the criteria for determination of
merit on the basis of which admissions to be granted to students
in post­graduate degree courses;
5.3. The power of the State under Entry 25 of List III to make
laws   is   subject   to   Entry   66   of   List   I   of   Schedule   VII   of   the
45
Constitution. The primacy will have to be given to Legislation
framed   by   the   Parliament   or   delegated   legislation   made   in
exercise of powers conferred under such Legislation on matters
under   Entry   25   of   List   III,   over   the   Legislation/delegated
legislation   framed   by   the   State   Legislature   or   authority
designated by the State Legislature;
5.4. As held by this Court in the case of  Preeti Srivastava v.
State of M.P.
12 under the Indian Medical Council Act, 1956, the
Medical Council of India is empowered to prescribe, inter alia,
standards of post­graduate medication education. It is further
observed that in exercise of its powers under Section 20 r/w
Section 33 of the Indian Medical Council Act, the MCI has framed
the Regulations which govern post­graduate medical education.
These Regulations therefore, are binding and the States cannot in
the exercise of power under Entry 25 of the List III, make rules
and regulations which are in conflict with or adversely impinge
upon the Regulations framed by the Medical Council of India for
post­graduate medical education. Heavy reliance is placed upon
para 52 and 53 of the said decision;
12 (1999) 7 SCC 120
46
5.5. That in the case of  Modern Dental College and Research
Centre (Supra) this Court has also further observed that exercise
of powers by the State Legislature on any matter under Entry 25
of List III is circumscribed by the power under Entry 66 of List I
and the latter shall have primacy over the former. Reliance is
placed upon paras 102 and 104 of the said decision.
6.0. Now,   so   far   as   submission   on   behalf   of   the   respective
petitioners   on   conversion   of   seats   of   Post­graduate   Diploma
Course   into   seats   of   Post­graduate   Degree   pursuant   to   the
Notification dated 12.07.2018, it is vehemently submitted that as
such when the reference was made to a Larger Bench and even in
the original writ petition conversion of seats was not the issue
much less any basis for the said reference. It is submitted that
therefore,  the   issue   of   conversion   of   seats  is   a   separate  and
distinct issue and a separate cause of action, which is sought to
be clubbed with the present petition.
It   is   submitted   that   however   as   submissions   have   been
made on this aspect, it is submitted as under:
47
A. Conversion of seats from post­graduate diploma to degree is
optional   and   not   mandatory.   No   College/Institution   was
compelled or forced to opt for such conversion;
B. The provisions for conversion was introduced as over the
past years the students, medical colleges, State Government
and other stake holders have complained about the scarcity
of seats in the post­graduate degree courses which is the
most preferred choice of students;
C. To give an option to the States where the requirement of
doctors post­graduate degrees is more to avail the benefit of
conversion;
D. This provision was not meant to take away or do away with
the in­service reservation in post­graduate diploma courses.
If   any   State/Government   Medical   College   wants   more
diploma holders then it can retain those seats.
6.1. Now   so   far   as   submission   on   behalf   of   the   respective
petitioners and the respective States that on conversion of  postgraduate diploma seats into degree seats in­service candidates
are deprived of reservation in diploma courses, it is submitted
that as such Government Medical Colleges and other Medical
Institutions in the State of Tamil Nadu and other States have
consciously and unconditionally chosen to opt for conversion of
seats. In fact, this conversion of seats helps the in­service doctors
48
also as there are a greater number of seats in post­graduate
degree courses for which they can compete;
6.2. It is submitted that any reservation for in­service candidates
in   post­graduate   degree   course   at   this   stage   will   give   unfair
advantage   to   in­service   candidates   over   other   candidates   by
increasing their seat share in the said degree courses;
6.3. That   the   Government   Medical   Colleges/Private   Medical
Colleges/   Deemed   Universities   are   keen   to   secure   permission
from Government of India for post graduate degree courses only,
since post graduate diploma courses is not the preferred choice of
the students. In any case, the data in the table given below
indicates that not all post graduate diploma seats across the
Country have not been converted to post­graduate degree course.
Many   States   have   not   opted   for   conversion   of   seats   in   their
medical colleges;
6.4. It   is   important   to   take   into   consideration   that   if   30%
reservation of seats in post­graduate degree courses is reserved
for in­service candidates in State quota, then a major chunk of
these seats, particularly seats in clinical subjects will be reserved
for in­service candidates only;
49
6.5. Now so far as submission on behalf of in­service candidates
that diploma seats for which reservation of in­service candidates
is permitted under Regulation 9(VIII) of MCI Regulations, upon
conversion into post­graduate degree seats, will continue to be
reserved for in­service candidates, it is submitted that the said
contention is devoid of merit and liable to be rejected since once
the seats in post­graduate diploma courses are converted to postgraduate degree courses then the nature and colour of the said
seat itself changes and it will be governed by Regulation 9 (IV)
and not Regulation 9(VIII) of the MCI Regulations. It is submitted
that grievance of the petitioners, if any, as a result of conversion
is because of the action of their State Governments in applying
for conversion of seats;
6.6. There is clear cut distinction in post­graduate diploma seats
and   post­graduate   degree   courses   and   both   serve   different
purposes. The conversion of post­graduate diploma seats into
post­graduate degree courses is only an enabling provision which
gives discretion to the State Government/Medical Institutes to
opt for such conversion. It is not in any manner intended to do
50
away   with   the   reservation   in   post­graduate   diploma   courses
under Regulation 9(VIII) of the MCI Regulations, 2000;
6.7. Regulation 9(IV) of the MCI Regulations, 2000 serve a large
public interest and it is an objective way of determining merit.
Regulation   9(IV)   of   the   Regulations   based   on   the   objective
consideration,   rational,   reasonableness   and   balances   the
competing   interest   of   in­service   candidates   and   non­service
(direct) candidates as well as the interest of State to have doctors
serving in remote and difficult or rural areas of the State and at
the same time also ensuring that there is no compromise of
merit;
6.8. It is submitted that therefore, as there is already provision
for   in­service   candidates   in   Regulation   9   framed   by   the   MCI
framed in exercise of powers under Section 20 r/w 33 of the India
Medical Council Act 1956 and the MCI Act has been enacted by
the   Central   Government   under   Entry   66   of   list   I   and   even
otherwise Entry 25 of List III empowers the Union also to enact
the law and therefore, also in view of   MCI Regulations, 2000
which were found place before the Parliament and ascent of the
President,   State   cannot   have  the   power  on   the   same   subject
51
under Entry 25 of List III and any law by the State shall be
repugnant to Central Act.
7.0. Shri Aman Lekhi, learned ASG appearing on behalf of the
Union of India has made the following submissions:
7.1. That the decision of this Court in the case of Dinesh Singh
Chauhan   (supra)   is   a   correct   law.   That   the   said   decision   is
consistent with the Article 246 r/w Entry No. 66 of List I and
Entry 25 of List III of 7th schedule of the Constitution; it would
not be correct to say, as mentioned in the Referral Order, that the
Legislative Entries were not considered in judgment of  Dinesh
Singh   Chauhan   (supra).   As   such   in   para   24,   this   Court   has
specifically approved the judgment in the case of Preeti Srivastav
(supra)  and has specifically referred Entry 66 of List I and has
clearly   held   that   Central   Legislation   and   Regulations   must
prevail;   that   the   judgment   in   the   case   of  Dinesh   Singh
Chauhan( supra) does not digress from the law laid down by the
Constitution Benches.
Apart from the fact that the judgment in the case of R.
Chitralekha   vs.   State   of   Mysore13,   specifically   negative   the
13 (1964) 6 SCR 368
52
contentions raised by the petitioner, it is to be noted that the said
decision was prior to deletion of entry 11 List II and insertion of
Entry 25 List III in the 7th Schedule of the Constitution;
7.2. It is submitted that at the time when the judgment in the
case of R. Chitralekha (supra) was passed there was no Entry 25
in List III (which came after the 42nd  Amendment) and the two
Entries which were relevant for controversy in the said case were
Entry 66 of List I which has not been amended till now, and
Entry 11 of List II. The State therefore, had the power under
Article   246(3)   read   with   Entry   11   to   legislate   in   respect   of
‘education’   subject   to   Entry   66   of   List   I.   The   expression
‘education’ was held in Gujarat University v. Krishna Ranganath
Mudholkar14  (para   23)   to   be   wide   important   and   include   all
matters   related   to   imparting   and   regulating   education.
Admittedly, there was no Central Enactment or regulation framed
under Entry 66 of List I which was to be considered by this
Hon’ble Court in the case of R. Chitralekha (supra);
7.3. That prior to the deletion of entry 11 of List II and insertion
of Entry 25 of List III, the Union Parliament could not deal with
the issue of imparting and regulating of the education which
14 AIR 1963 SC 703 = 1963 Supp (1) SCR 112
53
vested exclusively in the State Legislature. The power of State
Legislature relating to ‘education’ was taken away only to the
extent Entry 11 of List II was made subject to relevant entries in
the List I including Entry 66 and Entry 25 of List III at the
relevant time dealt only with ‘vocational and technical training of
labour;
7.4. In facts of R. Chitralekha (supra) the Court found that the
exercise   of   power   impugned   in   the   said   case   of   admitting
students on the basis of higher or different qualification than
those   prescribed   by   the   University   was   not   illegal   as   the
procedure   adopted   only   contained   a   criteria   to   limit   the
admission   of   students   into   colleges   from   amongst   those   who
secured   the   minimum   qualifying   marks   prescribed.   In   other
words,   the   State   Government   did   not   transgress   into   any
forbidden are in the said case;
7.5. The instant case however deals with the situation where
Entry 11 is shifted from List II to List III as Entry 25, which Entry
enlarges   the   field   (now   concurrently   vested   with   the   State
Legislature   and   Union   Parliament)   beyond   ‘Universities’   to
54
‘technical education’ and ‘medical education’ also while retaining
‘vocational and technical training of labour’ in the original Entry;
7.6. The consequence of this change is that the State Legislature
does not have exclusive power over imparting and regulating of
education. And where the Centre has legislated on this subject,
the State Legislature would be denuded of its power subject ofcourse to Article 254 of the Constitution (which has not been
invoked). In the absence of such legislative power even executive
power would not be available to the State Government;
7.7. Section 10 D has been inserted into Medical Council of
India   Act   (on   24.5.2016)   prescribing   a   uniform   entrance
examination ‘in such manner as may be prescribed.’ Section 10 D
has to be read with Section 33 (mb) of the Act empowering the
MCI to make regulation concerning the manner of conducting
uniform entrance examination both at the undergraduate and
post­graduate level. In exercise of the power so conferred Postgraduate Regulations were amended in 2018;
7.8. Regulation 9(IV) deals with “All India merit list as well as
State­wise merit list” on the basis of marks obtained in NEET for
admission to “post­graduate courses (both degree and diploma).
55
The proviso to Regulation 9(IV) stipulates that “in determining
the merit of the candidates” weightage in marks would be given
as provided. This is not a substantive provision as argued and is
clearly a proviso to Regulation 9 (IV);
7.9. Unlike Regulation 9(IV) which deals with both post­graduate
degree and diploma courses, Regulation 9(VIII) deals only with
“Post­graduate Diploma Courses” and provides for reservation in
the manner stipulated therein. Regulation 9(VIII) is therefore, a
special provision which will apply only to the subject within its
scope clearly indicating that the reservation is limited to diploma
courses only. Regulation 9 dealing both with ‘determination and
coordination   of   standards’   and   ‘regulation’   of   education   has
correctly been described as a complete code. Not only can there
be no interference with the standard prescribed but there also
being regulation of the manner in which standards are to apply
by the MCI under a Central enactment, the State Government
cannot interfere with or modify the same;
7.10. In view of the specific provision for in­service candidates in
the MCI Regulations, 2000 framed by the Medical Council of
India, more particularly, Regulation 9(IV) r/w 9(VII)/(VIII) and as
56
Regulation 9 is held to be a complete code and even considering
Entry  25  of  List  III,  the  State  would  not   have  any  power to
legislate   anything   contrary   to   MCI   Regulations,   2000,   more
particularly Regulation 9 and cannot have any power to make
provision   for   reservation   for   in­service   candidates   in   postgraduate degree course. Any law framed and/or to be framed,
therefore, would be repugnant to MCI Regulations, 2000 framed
by the Medical Council of India, framed in exercise of powers
under Section 20 r/w Section 33 of the MCI Act, 1956. 
8.0. Learned   counsel   appearing   on   behalf   of   the   private
respondents in the case of State of West Bengal opposing the
reservation   for   in­service   candidates   has   made   the   following
submissions:
8.1. There is no legislation in the State of West Bengal providing
for reservation for in­service candidates. The office memorandum
dated  18.4.2013,  is  only  an   executive  instruction,  which   has
been   relied   upon   by   the   State   Government   did   not   find   any
mention in the original records of the Government when perused
by the Division Bench of the High Court while examining the
57
reasons  recorded  by  the  State  Government   for grant  of  such
reservation;
8.2. Further, merit has become casualty by such reservation in
the   State   of   West   Bengal.  The   country  definitely   wants   more
doctors but moreover it needs qualified specialists. Reservation at
higher level of professional courses such as medicine should be
minimal.   Learned   counsel   has   taken   us   to   submission   with
respect to allotment of PG seats and corresponding rank of open
category and in­service candidates from the written submissions.
It is submitted that therefore, merit has become casualty by such
reservation   in   the   State;   that   the   NEET­PG   Notification   for
admission to PG Medical Courses throughout the country was
published on 07.09.2018. NEET­PG 2019 result was published
on   31.1.2019.   As   per   the   MCI   Regulations,   State   quota
counselling   to   commence   from   25.3.2019.   Before   that   open
category candidates made a representation to the State as well as
WBUHS (University) on 5.3.2019 citing Regulation 9(IV) of the
MCI Regulations, 2000 as well as judgment of this Court in the
case   of   Dinesh   Singh   Chauhan   (supra)  and   the   order   of   the
Constitution   Bench   of   this   Court   in   the   case   of  Tamil   Nadu
58
Medical   Officers   Association   v.   Union   of   India15 requesting
Government not to reserve any seats for in­service candidates.
That the said representation has neither been annexed nor referred
to in the special leave petition by the State.  That the counselling
notice by the university was dated 12.03.2019, in which, there was no
mention of  any reservation for  in­service candidates. There was
specific mention for SC/ST/OBC/PH reservation. Result of round
­1 counselling was published on 3.4.2019. Again, a legal notice
and   the   representation   was   made   on   18.4.2019   to   make
admissions in accordance with MCI Regulations and decision of
this   Court   in   the   case   of   Dinesh   Singh   Chauhan   (supra).
Provisional   List   for   2nd  round   was   published   on   20.4.2019
without   considering   the   representation.   Immediately   on
23.4.2019 writ petition was filed. On 26.4.2019 learned Single
Judge   granted   stay   on   further   counselling.   On   1.5.2019   the
learned Single Judge modified the interim order that counselling
may take place but no admission. That thereafter, the interim
order passed by the learned Single Judge was modified by the
Division Bench and direction was issued to complete admission
in   view   of   cut­off   date   of   30.05.2019   but   directed   that   all
15 (2018) 17 SCC 426
59
admissions shall be subject to final outcome of writ petition; all
admitted   students   to   file   an   undertaking;   no   equities   to   be
claimed. SLP was preferred against the interim order passed by
the Division Bench dated 30.05.2019 before this Court. In that
MCI   supported   and   submitted   that   there   cannot   be   any
reservation of seats for in­service candidates. This Court disposed
of the SLP with a request to the learned Single Judge to hear the
case on day to day basis and decide it expeditiously. That by
judgment and order dated 19.08.2019 the learned Single Judge
allowed the writ petitions and quashed the reservation of seats in
PG­Degree Courses for in­service candidates. Consequently, the
admission of in­service candidates made against 40% reserved
seats     came to be cancelled and directed preparation of fresh
combined list. That thereafter, impugned judgment and order
came to be passed by the Division Bench. It is submitted that
therefore, the general category candidates made their grievance
against the reservation for in­service candidates from the very
beginning and well in advance and therefore, there is no delay on
their part and therefore, the direction issued by the Division
Bench be directed to be complied with. As directed by the learned
60
Single Judge and thereafter confirmed by the Division Bench, inservice candidates now cannot be permitted to claim equity;
8.3. That in­service candidates are not meritorious and by such
reservation the meritorious general category candidates and nonservice candidates who have secured more marks in NEET and
competitive examination will have to suffer; (a) Medical Council of
India   has  been   constituted   as   an   expert   body   to  control   the
minimum standards of medical education and to regular their
observance; (b) Compliance with regulations framed by MCI are
mandatory inasmuch as enforcement of these regulations are
directly   relatable   to   quality   of   medical   professionals;   (c)
Regulations framed by the MCI are with prior approval of the
Central Government in terms of Section 33 of the Indian Medical
Council   Act,   1956   and   are   binding   in   nature;   (d)   Aforesaid
binding   nature   is   apparent   from   a   perusal   of   constitutional
scheme for enactment of the Indian Medical Council Act, 1956.
Entry   66   of   List   I   of   the   seventh   schedule   provides   for   ‘coordination   and   determination   of   standards   in   institutions   for
higher   education   or   research   and   scientific   and   technical
institution’. Entry 25 of List III in the seventh schedule of the
61
Constitution   provides   for   ‘Education   including   technical
education,   medical   education   and   universities,   subject   to   the
provisions of entries 63,64,65 and 66 of  List I’; It emerges from a
conjoint reading of Entry 66 of List I and Entry 25 of List III that
because the Parliament occupies the field earmarked for it under
Entry 66 of List I or its concurrent powers as per Entry 25 in the
concurrent list, the question of admission of students to any
medical course would mandatorily have to be in compliance of
the said law framed with reference to Entry 66 of List I which is
the MCI Act, 1956;
8.4. As per catena of decisions, norms of admission including
reservation   directly   affect   the   standards   of   education   and
therefore, the State cannot frame a law breaching the standards
laid down by the MCI. Hence reliance is placed on the following
decisions:
(1)  Preeti Srivastava (supra);
(2) Narayan Sharma (Dr) vs. Pankaj Kr. Lekhar (Dr)16;
(3). Modern Dental College and Research Centre (supra);
(4). Dinesh Singh Chauhan (supra); and
16 (2000) 1 SCC 44
62
(5). Tamil Nadu Medical Officers Association vs. Union of
India reported in (2018) 17 SCC 426.
8.5. That selection to Post­graduate Courses stands completely
covered by Regulation 9 of the MCI Regulations, 2000. In support
of the above, followings submissions are made:
I. MCI Regulations, 2000 were notified after prior approval
from Central Government under Section 33 of the MCI Act.
The objective of the regulations is to produce competent
specialists and/ or Medical teachers;
II. Regulation 9 prescribes for manner and mode of selection of
Post­graduate students which affirms the primacy of merit
in selection of candidates to Post­graduate Courses by way
of common entrance examination, i.e. NEET;
III. Regulation 9 further makes a distinction in manner and
mode of selection for candidates to ‘Post­graduate Diploma’
courses and ‘Post­graduate Degree’ courses;
IV. Manner of determination of academic merit is prescribed
under Regulation 9(4);
V. Proviso to Regulation 9(4) provides as under:
“Provided that that in determining the merit of candidates
who   are   in   service   of   Government/   Public   Authority,
63
weightage in the marks may be given by the Government /
Competent Authority, as an incentive up to 10% of the marks
obtained for each year of service in remote and / or difficult
areas or rural areas up to maximum of 30% of the marks
obtained   in   National   Eligibility­cum­Entrance   Test.   The
remote and / or difficult areas or rural areas shall be as
notified   by   State   Government   /Competent   Authority   from
time to time.”
VI. It emerges from a perusal of the above regulation that (i) PG
Degree is distinct and different from a PG diploma which is clear
from perusal of Regulation 9(VIII) wherein 50% seats are reserved
for   aforesaid   Government   medical   officers   who   fulfil   the
requirements   of   service   in   notified   areas   (ii)   In   matters   of
selection   to   PG   Courses,   inter­se   merit   is   the   determinative
factor, (iii) In determination of merit, the State Government may,
with a view to incentivize such service, give weightage in the
marks   for   service   in   ‘remote’   or   ‘difficult’   areas   and   (iv),   the
remote and difficult areas shall be notified by State Government
from time to time;
VII. There   is   no   provision   for   ‘reservation’   of   seats   for   such
candidates who may have rendered service in remote or difficult
areas.   At   best,   and   strictly   as   a   policy   measure,   the   State
Government   may   provide   weightage   as   incentive   and   nothing
more;
64
VIII. Therefore, Regulation 9 as per its letter and purport clearly
provides only for weightage, and not reservation. The same has
been so done, in order to incentivize the candidates to render
service in ‘remote’ and ‘difficult’ areas and at the same time,
ensure   that   requirement   of   ‘inter­se   merit’   is   not   diluted   by
introduction of a scheme of reservation;
8.6. That Regulation 9 is a ‘complete code’ governing selection to
PG Courses. In support of the above, following submissions are
made:
A. There is no provision in the Indian Medical Council Act,
1956 and MCI Regulations, 2000 stipulating reservation for
in­service   candidates   against   the   30%   seats   in   “Postgraduate Degree Course’;
B. However, the provision is only to give weightage of marks to
in­service candidates who had worked for specified period in
notified remote, difficult or backward areas of the State;
C. The   State   Governments   in   view   of   the   fact   that   MCI
Regulations have statutory primacy in matters of medical
education, could not have framed any statutory Rules or
notify a contrary provision by an executive fiat;
65
D. After having examined the entire Regulation 9 as a whole, in
the case of Sudhir N (supra), it is held that Regulation 9 is a
complete   code   in   relation   to   selection   to   Post­graduate
course.
8.7. That when Regulations prescribe for selection in a certain
manner, it must be done in that manner alone and not otherwise.
The MCI Regulations governed the field of admission to PG
Courses and Regulation 9 of the MCI Regulations, 2000 is a selfcontained code and Regulation 9 does not provide for anything
other than weightage, and that too, upon identification of remote
& difficult areas by the State Government, the State could not
have   provided   for   any   reservation   for   in­service   candidates
contrary to the Central Act and the MCI Regulations, 2000;
8.8. Thus, the State is not competent to separately reserve a
specific   number   of   seats   for   candidates   who   have   served   in
notified areas. Such candidates who had rendered services in
notified   rural   and   difficult   areas   are   entitled   to   weightage   in
terms of proviso to Regulation 9(IV);
8.9. Regulations have been framed with a conscious decision to
not provide any reservation, as the same shall invariably have an
66
adverse effect on the inter­se merit and many candidates merely
by virtue of being in–service candidates may steal a march over
candidates higher in merit;
8.10.That the provisions regarding giving weightage to the inservice   candidates   by   way   of   incentive   marks   has   been
introduced in larger public interest and the same is just, rational
and proper and there was no occasion to enlarge the scope and
provide   for   reservation,   when   the   regulation   itself   does   not
contemplate any such reservation;
8.11.The State is obliged to adopt a procedure as stipulated by
the Central Act and Regulation framed thereunder;
8.12.That when there is categorical expression of weightage, it
would automatically exclude reservation in cases of admission to
PG Degree courses;   
8.13.Regulation   9   even   if   read   liberally   does   not   provide   for
reservation   for   in­service   candidates,   but   only   for   giving   a
weightage in the form of incentive marks as specified to the class
of in­service candidates (who have served in notified remote and
difficult areas in the State);
67
8.14.Any   reservation   at   the   stage   of   Post­graduate   Medical
education   will   necessarily   result   in   dilution   of   minimum
standards   and   merit   and   will   therefore,   be   contrary   to   the
objective of the regulation itself;
8.15.Providing   any   reservation   despite   the   same   not   being
provided for in the Regulations would be akin to redrafting the
Regulations itself. 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 inservice   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,   and   providing   any   reservation   contrary   to   the
regulation would undo the regulation itself.
9. In   the   case   of  Dinesh   Singh   Chauhan   (supra),   the   very
Regulation 9(IV) and 9(VII) fell for consideration.  In the case of
Dinesh Singh Chauhan (supra),  after considering the decision of
this Court in the case of Preeti Srivastava (supra), in para 24, it is
held as under:
“24. By now, it is well established that Regulation 9 is a
self­contained code regarding the procedure to be followed
68
for admissions to medical courses. It is also well established
that the State has no authority to enact any law much less
by executive instructions that may undermine the procedure
for admission to postgraduate medical courses enunciated by
the Central legislation and regulations framed thereunder,
being a subject falling within Schedule VII List I Entry 66 of
the Constitution (see Preeti Srivastava v. State of M.P. [1999)
7 SCC 120]). The procedure for selection of candidates for
the postgraduate degree courses is one such area on which
the Central legislation and regulations must prevail.” 
(emphasis supplied)
9.1 Thereafter Regulation 9 has been considered in detail, the
relevant paras are paras 26, 27, 29, 30, 31, 32, 33, 35, 39, 47,
which read as under:
“26. From the plain language of this proviso, it is amply
clear   that   it   does   not   envisage   reservation   for   in­service
candidates in respect of postgraduate “degree” courses with
which we are presently concerned. This proviso postulates
giving weightage of marks to “specified in­service candidates”
who have worked in notified remote and/or difficult areas in
the State—both for postgraduate “degree” courses as also for
postgraduate “diploma” courses. Further, the weightage of
marks so allotted is required to be reckoned while preparing
the merit list of candidates.
27.  Thus   understood,   the   Central   enactment   and   the
regulations framed thereunder do not provide for reservation
for in­service candidates in postgraduate “degree” courses.
As there is no express provision prohibiting reservation to inservice candidates in respect of admission to postgraduate
“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 in­service 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
69
the   academic   year   2013­2014.   This   Regulation   is   a   selfcontained code. There is nothing in this Regulation to even
remotely indicate that a separate channel for admission to
in­service candidates must be provided, at least in respect of
postgraduate “degree” courses. In contradistinction, however,
50%   seats   are   earmarked   for   the   postgraduate   “diploma”
courses   for   in­service   candidates,   as   is   discernible   from
clause  (VII).  If  the  regulation intended a  similar  separate
channel   for   in­service   candidates   even   in   respect   of
postgraduate   “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 in­service
candidates is not permissible for admission to postgraduate
“degree” courses. Thus, the State Government, in law, had
no authority to issue a Government Order such as dated 28­
2­2014, 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 2000
Regulations,   as   applicable   from   the   academic   year   2013­
2014.
29. In the present case, we have held that providing 30%
reservation to in­service candidates in postgraduate “degree”
courses is not permissible. It does not, however, follow that
giving weightage or incentive marks to in­service candidates
for   postgraduate   “degree”   courses   entails   in   excessive   or
substantial departure from the rule of merit and equality.
For, Regulation 9 recognises the principle of giving weightage
to  in­service  candidates   while  determining   their  merit.  In
that sense, incentive marks given to in­service 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 NEET. Weightage or incentive
marks specified in Regulation 9 are thus linked to the marks
obtained by the in­service candidate in 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
in­service   candidates)   is   permissible   differentiation   whilst
determining   their   merit.   It   is   an   objective   method   of
determining their merit.
70
30.  Coming to the next decision pressed into service in
State of M.P. v. Gopal D. Tirthani (2003) 7 SCC 83, it was a
case   of   conducting   separate   entrance   test   for   in­service
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
analysed four earlier decisions of this Court; to wit, Dinesh
Kumar  v.  Motilal Nehru Medical College  (1986) 3 SCC 727,
Snehelata   Patnaik  v.  State   of   Orissa  (1992)   2   SCC   26,
Narayan Sharma v. Pankaj Kr. Lehkar (2000) 1 SCC 44 and
State of U.P. v. Pradip Tandon (1975) 1 SCC 267. The Court
in para 33 observed thus: (Tirthani case  (2003) 7 SCC 83,
SCC p. 106)
“33. … The case at hand presents an entirely different
scenario. Firstly, it is a case of postgraduation within the
State and not an all­India 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 in­service 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. In­service 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
71
consequently   eligibility   for   promotion,   acts   as   a
motivating factor and provides incentive to young in­service
doctors to opt for service in rural/tribal areas. In the set­up
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   the
service rendered in rural/tribal areas while finalising the
merit list of successful in­service 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.”
31. 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   in­service
candidates for determining their merit in NEET.
32.  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 healthcare 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 Snehelata case (1992) 2 SCC 26 had left it to
the authorities to evolve norms regarding giving incentive
marks to the in­service 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  (1979) 1
SCC 572 (SCC para 16); also see Medical Council of India v.
State   of   Karnataka  (1998)   6   SCC   131].   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 in­service 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.
72
33.  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
postgraduate “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   postgraduate   “degree”
courses of their choice. Secondly, the rural healthcare units
run by the public authority would be benefited 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
Snehelata Patnaik case  (1992) 2 SCC 26. The three­Judge
Bench   by   a   speaking   order   opined   that   giving   incentive
marks to in­service candidates is inexorable. It is apposite to
refer to the dictum in the said decision which reads thus:
(SCC pp. 26­27, paras 1­2)
“1.  We have already dismissed the writ petition and
special leave petitions by our order dated 5­12­1991. We
would,   however,   like   to   make   a   suggestion   to   the
authorities for their consideration that some preference
might be given to in­service 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   in­service
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 non­availability of qualified doctors giving
such   incentive   would   be   quite   in   order.   The   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 Dinesh Kumar v. Motilal
Nehru   Medical   College  (1986)  3  SCC 727.  It  has  been
observed there that merely by offering a weightage of 15%
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
73
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. The 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   postgraduate   courses   are
concerned (see  Dinesh Kumar case   (1986) 3 SCC 727,
SCC para 12 at p. 741).
2. 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   all­India   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%  of   marks   in
favour   of   in­service   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 in­service 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.”
35. As aforesaid, the 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
in­service candidates in notified remote and difficult areas in
the   State.   The   proviso   prescribes   the   measure   for   giving
incentive marks to in­service 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 inservice candidates is spelt out in the proviso. It envisages
giving of incentive marks @ 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   in­service
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
74
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 en bloc of the total marks irrespective of the
marks   obtained   by   the   eligible   in­service   candidates   in
NEET, it would have been a different matter. Accordingly,
some weightage marks given to eligible in­service 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 in­service
candidate, much less reservation. It is unfathomable as to
how such a provision can be said to be unreasonable or
irrational.
39.  Reverting   to   the   recent   decision   of   this   Court   in
Sudhir   N.  (2015)   6   SCC   685,   the   two­Judge   Bench   was
dealing with the question of selection of in­service medical
officers for postgraduate medical education under Section
5(4) of the Kerala Medical Officers Admission to Postgraduate
Courses   under   the   Service   Quota   Act,   2008.   The   said
provision   has   been   extracted   in   para   5   of   the   reported
decision. It deals with the finalisation of select list by the
Postgraduate 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   in­service   candidates   is   made
permissible by Regulation 9. That is the limited departure
from the merit list criteria permitted by the Regulation itself.
Neither in  Sudhir N.  (2015) 6 SCC 685  nor  Tirtha  (2003) 7
SCC 83 the Court had the occasion to deal with the question
regarding challenge to the proviso to clause (IV) of Regulation
9.
75
47.  We must hold that the High Court was justified in
quashing   the   stated   government   order   providing   for
reservation   to   in­service   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 2016­2017 onwards to
the postgraduate degree course in the State should proceed
as per Regulation 9 including by giving incentive marks to
eligible in­service 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   12­5­2016].   We,   accordingly,   mould   the   operative
order of the High Court to bring it in conformity with the
direction contained in the interim order dated 12­5­2016 but
to be made applicable to academic year 2016­2017 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   postgraduate   degree   course   concerned   for
academic year 2016­2017. 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 7­4­2016
are disposed of accordingly.”
(emphasis supplied)
9.2. The   present   batch   of   cases   came   up   for   hearing   before
another Bench of three Judges. The Bench was of the opinion
that the present batch of cases require consideration by a larger
Bench and that is how the present batch of cases are referred to
a   larger   Bench.   On   the   basis   of   the   submissions   made,   the
following reasons were mentioned:
(i). The decision in Dinesh Singh Chauhan (supra) has
not considered the entries in the legislative lists of the
76
Seventh Schedule, more particularly, Entry 66 of the
Union List and Entry 25 of the Concurrent List;
(ii). The main contention of the petitioners is that while
coordination   and   determination   of   standards   in
institutions   for   higher   education   falls   within   the
exclusive domain of the Union (Entry 66 List I), medical
education is a subject in the Concurrent List (Entry 25
List III). Though, Entry 25 of List III is subject to Entry
66 of List I, the State is not denuded of its power to
legislate   on   the   manner   and   method   of   making
admission to postgraduate medical courses.
(iii).   The   contentions   which   have   been   raised   in   the
present batch of petitions were not addressed before
this Court in Dinesh Singh Chauhan (supra).
(iv).   The   judgment   in   Dinesh   Singh   Chauhan   (supra)
does not consider three decisions of the Constitution
Bench in R. Chitralekha (supra), Chitra Ghosh (supra)
and Modern Dental College & Research Center (supra);
and
(v)   There   are   decisions   rendered   by   Benches   of   an
equal strength as in Dinesh Singh Chauhan (supra).
9.3 Therefore, the following issues arise for consideration
and   determination   of  this  Court  in  the  present   batch  of  writ
petitions/appeals:
1. What is the scope and ambit of Entry 66 of List I?
77
2. What   will   be   the   impact/effect   of   MCI   Regulations,
2000 framed by the Medical Council of India in exercise of its
powers under Section 33 of the Indian Medical Council Act,
1956?
3. Whether in view of Entry 66 of List I, the State is
denuded of its power to legislate on the manner and method
of   the   postgraduate   medical   courses,   more   particularly,
making   special   provisions   for  in­service   candidates  in   the
postgraduate degree/diploma courses?
4. Whether Regulation 9 of MCI Regulations, 2000, more
particularly, Regulation 9(IV) and 9(VII) takes away the power
of   the   States   under   Entry   25   of   List   III   to   provide   for   a
separate   source   of   entry   for   in­service   candidates   seeking
admission to postgraduate medical courses?
5. Whether   Regulation   9   of   MCI   Regulations,   2000   is
understood   to   not   allow   for   the   States   to   provide   for   a
separate   source   of   entry   for   in­service   candidates   seeking
admission   to   postgraduate   degree   courses,   the   same   is
arbitrary, discriminatory and violative of Articles 14 and 19(1)
(g) of the Constitution of India, and also ultra vires of the
provisions of the Indian Medical Council Act, 1956?
6. Whether Regulation 9 is a complete code in itself, as
observed by this Court in the case of Dinesh Singh Chauhan
(supra) affecting the rights/authority of the States to provide
for reservation and/or separate source of entry for in­service
candidates   seeking   admission   to   postgraduate   degree
courses?
10. While considering the aforesaid issues, let us first consider
the scope and ambit of Entry 66 of List I – legislative competence
of the Union in exercise of powers under Entry 66, List I of
Schedule VII of the Constitution of India.
78
10.1 In the case of  Modern   Dental  College   &  Research  Centre
(supra), a Constitution Bench of this Court again had an occasion
to deal with and consider Entry 66 List I and Entry 25 List III.
After   considering   catena   of   decisions   of   this   Court,   more
particularly, the decisions of this Court in the cases of  Gujarat
University   (supra);   R.   Chitralekha   (supra);   Preeti   Srivastava
(supra); and Bharati Vidyapeeth v. State of Maharashtra17
,  it is
held by this Court that Entry 66 in List I is a specific entry having
a very specific and limited scope.  It is further observed by this
Court   that   it   deals   with   “coordination   and   determination   of
standards” in institution of higher education or research as well
as scientific and technical institutions.  The words “coordination
and determination of standards” would mean laying down the
said   standards.   It   is   observed   that   thus,   when   it   comes   to
prescribing the standards for such institutions of higher learning,
exclusive domain is given to the Union.  The relevant observations
are in paragraphs 101 to 105, which read as under:
“101. To our mind, Entry 66 in List I is a specific entry having a
very specific and limited scope. It deals with coordination and
determination of standards in institution of higher education or
research as well as scientific and technical institutions. The
words   “coordination   and   determination   of   standards”   would
17 (2004) 11 SCC 755
79
mean laying down the said standards. Thus, when it comes to
prescribing   the   standards   for   such   institutions   of   higher
learning, exclusive domain is given to the Union. However, that
would   not   include   conducting   of   examination,   etc.   and
admission of students to such institutions or prescribing the fee
in   these   institutions   of   higher   education,   etc.   In   fact,   such
coordination and determination of standards, insofar as medical
education is concerned, is achieved by parliamentary legislation
in the form of the Indian Medical Council Act, 1956 and by
creating the statutory body like Medical Council of India (for
short “MCI”) therein. The functions that are assigned to MCI
include   within   its   sweep   determination   of   standards   in   a
medical institution as well as coordination of standards and
that of educational institutions. When it comes to regulating
“education” as such, which includes even medical education as
well as universities (which are imparting higher education), that
is prescribed in List III Entry 25, thereby giving concurrent
powers to both Union as well as States. It is significant to note
that earlier education, including universities, was the subjectmatter   of   List   II   Entry   11   [“11. “Education”   including
universities, subject to the provisions of Entries 63, 64, 65 and
66 of List I and Entry 25 of List III”]. Thus, power to this extent
was given to the State Legislatures. However, this entry was
omitted   by   the   Constitution   (Forty­second   Amendment)   Act,
1976 with effect from 3­7­1977 and at the same time List II
Entry 25 was amended [Unamended Entry 25 in List III read as:
“Vocational   and   technical   training   of   labour”].   Education,
including   university   education,   was   thus   transferred   to   the
Concurrent   List   and   in   the   process   technical   and   medical
education   was   also   added.   Thus,   if   the   argument   of   the
appellants   is   accepted,   it   may   render   Entry   25   completely
otiose. When two entries relating to education, one in the Union
List and the other in the Concurrent List, coexist, they have to
be read harmoniously. Reading in this manner, it would become
manifest that when it comes to coordination and laying down of
standards in the higher education or research and scientific and
technical institutions, power rests with the Union/Parliament to
the exclusion of the State Legislatures. However, other facets of
80
education, including technical and medical education, as well as
governance of universities is concerned, even State Legislatures
are given power by virtue of Entry 25. The field covered by List
III Entry 25 is wide enough and as circumscribed to the limited
extent of it being subject to List I Entries 63, 64, 65 and 66.
102. Most   educational   activities,   including   admissions,
have two aspects: the first deals with the adoption and setting
up   the   minimum   standards   of   education.   The   objective   in
prescribing minimum standards is to provide a benchmark of
the calibre and quality of education being imparted by various
educational institutions in the entire country. Additionally, the
coordination   of   the   standards   of   education   determined
nationwide is ancillary to the very determination of standards.
Realising   the   vast   diversity   of   the   nation   wherein   levels   of
education fluctuated from lack of even basic primary education,
to institutions of high excellence, it was thought desirable to
determine and prescribe basic minimum standards of education
at   various   levels,   particularly   at   the   level   of   research
institutions,   higher   education   and   technical   education
institutions. As such, while balancing the needs of States to
impart education as per the needs and requirements of local
and   regional   levels,   it   was   essential   to   lay   down   a   uniform
minimum   standard   for   the   nation.   Consequently,   the
Constitution­makers   provided   for   List   I   Entry   66   with   the
objective   of   maintaining   uniform   standards   of   education   in
fields of research, higher education and technical education.
103. The second/other aspect of education is with regard
to the implementation of the standards of education determined
by Parliament, and the regulation of the complete activity of
education. This activity necessarily entails the application of the
standards   determined   by   Parliament   in   all   educational
institutions in accordance with the local and regional needs.
Thus,   while   List   I   Entry   66   dealt   with   determination   and
coordination of standards, on the other hand, the original List II
Entry 11 granted the States the exclusive power to legislate with
respect   to   all   other   aspects   of   education,   except   the
81
determination of minimum standards and coordination which
was in national interest. Subsequently, vide the Constitution
(Forty­second Amendment) Act, 1976, the exclusive legislative
field   of   the   State   Legislature   with   regard   to   education   was
removed and deleted, and the same was replaced by amending
List III Entry 25 granting concurrent powers to both Parliament
and State Legislature the power to legislate with respect to all
other aspects of education, except that which was specifically
covered by List I Entries 63 to 66.
104. No   doubt,   in Bharati   Vidyapeeth [Bharati
Vidyapeeth v. State   of   Maharashtra,   (2004)   11   SCC   755   :   2
SCEC   535]   it   has   been   observed   that   the   entire   gamut   of
admission falls under List I Entry 66. The said judgment by a
Bench of two Judges is, however, contrary to law laid down in
earlier   larger   Bench   decisions.   In Gujarat   University [Gujarat
University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703 :
1963 Supp (1) SCR 112] , a Bench of five Judges examined the
scope of List II Entry 11 (which is now List III Entry 25) with
reference to List I Entry 66. It was held that the power of the
State  to legislate in respect  of education  to the extent  it  is
entrusted   to   Parliament,   is   deemed   to   be   restricted.
Coordination   and   determination   of   standards   was   in   the
purview of List I and power of the State was subject to power of
the Union on the said subject. It was held that the two entries
overlapped to some extent and to the extent of overlapping the
power conferred by List I Entry 66 must prevail over power of
the State. Validity of a State legislation depends upon whether it
prejudicially affects “coordination or determination of standards”,
even in absence of a Union legislation. In R. Chitralekha v. State
of Mysore [R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 :
(1964) 6 SCR 368] , the same issue was again considered. It was
observed   that   if   the   impact   of   the   State   law   is   heavy   or
devastating as to wipe out or abridge the Central field, it may be
struck   down.   In State   of   T.N. v. Adhiyaman   Educational   &
Research   Institute [State   of   T.N. v. Adhiyaman   Educational   &
Research Institute, (1995) 4 SCC 104 : 1 SCEC 682] , it was
observed that to the extent that State legislation is in conflict
82
with the Central legislation under Entry 25, it would be void
and inoperative. To the same effect is the view taken in Preeti
Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 :
1 SCEC 742] and State of Maharashtra v. Sant  Dnyaneshwar
Shikshan Shastra Mahavidyalaya [State of Maharashtra v. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1
:   5   SCEC   637]   .   Though   the   view   taken   in State   of
M.P. v. Nivedita Jain [State of M.P. v. Nivedita Jain, (1981) 4 SCC
296]   and Ajay   Kumar   Singh v. State   of   Bihar [Ajay   Kumar
Singh v. State  of Bihar, (1994) 4 SCC 401] to the effect that
admission standards covered by List I Entry 66 could apply only
post   admissions   was   overruled   in Preeti   Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] , it
was not held that the entire gamut of admissions was covered
by List I as wrongly assumed in Bharati  Vidyapeeth [Bharati
Vidyapeeth v. State   of   Maharashtra,   (2004)   11   SCC   755   :   2
SCEC 535] .
105. We do not find any ground for holding that Preeti
Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 :
1   SCEC   742]   excludes   the   role   of   States   altogether   from
admissions. Thus, observations in Bharati Vidyapeeth [Bharati
Vidyapeeth v. State   of   Maharashtra,   (2004)   11   SCC   755   :   2
SCEC 535] that entire gamut of admissions was covered by List
I Entry 66 cannot be upheld and overruled to that extent. No
doubt, List III Entry 25 is subject to List I Entry 66, it is not
possible to exclude the entire gamut of admissions from List III
Entry 25. However, exercise of any power under List III Entry 25
has to be subject to a Central law referable to Entry 25.”
(emphasis supplied)
In the concurring judgment, Bhanumati, J. in paragraphs
131 to 134 and 147 to 149, has held as under:
83
“131. In   order   to   answer   the   concern   of   other   Constitution
Framers, Dr Ambedkar went on to clarify the limited scope of
List I Entry 66 (as in the present form), as proposed by him in
the following words: (CAD Vol. 9, p. 796)
“Entry 57­A merely deals with the maintenance of
certain standards in certain classes of institutions, namely,
institutions   imparting   higher   education,   scientific   and
technical  institutions,  institutions   for  research,  etc.  You
may ask, “why this entry?” I shall show why it is necessary.
Take  for  instance,  the   BA   Degree   examination  which   is
conducted by the different universities in India. Now, most
provinces and the Centre, when advertising for candidates,
merely say that the candidate should be a graduate of a
university. Now, suppose the Madras University says that a
candidate at the BA Examination, if he obtained 15% of the
total   marks   shall   be   deemed   to   have   passed   that
examination; and suppose the Bihar University says that a
candidate who has obtained 20% of marks shall be deemed
to have passed the BA degree examination; and some other
university fixes some other standard, then it would be quite
a   chaotic   condition,   and   the   expression   that   is   usually
used, that the candidate should be a graduate, I think,
would be meaningless. Similarly, there are certain research
institutes, on the results of which so many activities of the
Central   and   Provincial   Governments   depend.   Obviously,
you   cannot   permit   the   results   of   these   technical   and
scientific institutes to deteriorate from the normal standard
and yet allow them to be recognised either for the Central
purposes,   for   all­India   purposes   or  the   purposes   of   the
State.”
132. The intent of our Constitution Framers while introducing
Entry 66 of the Union List was thus limited only to empowering
the Union to lay down a uniform standard of higher education
throughout the country and not to bereft the State Legislature
of its entire power to legislate in relation to “education” and
organising its own common entrance examination.
84
133. If we consider the ambit of the present Entry 66 of the
Union  List;   no  doubt   the  field  of   legislation  is  of   very  wide
import and determination of standards in institutions for higher
education. In the federal structure of India, as there are many
States, it is for the Union to coordinate between the States to
cause them to work in the field of higher education in their
respective States as per the standards determined by the Union.
Entry 25 in the Concurrent List is available both to the Centre
and the States. However, power of the State is subject to the
provisions of Entries 63, 64, 65, and 66 of the Union List; while
the State is competent to legislate on the education including
technical   education,   medical   education   and   universities,   it
should be as per the standards set by the Union.
134. The   words   “coordination”   and   “determination   of   the
standards in higher education” are the preserve of Parliament
and are exclusively covered by Entry 66 of the Union List. The
word “coordination” means harmonisation with a view to forge a
uniform   pattern   for   concerted   action.   The   term   “fixing   of
standards   of   institutions   for   higher   education”   is   for   the
purpose of harmonising coordination of the various institutions
for higher education across the country. Looking at the present
distribution of legislative powers between the Union and the
States with regard to the field of “education”, that State's power
to   legislate   in   relation   to   “education,   including   technical
education, medical education and universities” is analogous to
that of the Union. However, such power is subject to Entries 63,
64, 65 and 66 of the Union List, as laid down in Entry 25 of the
Concurrent   List.   It   is   the   responsibility   of   the   Central
Government to determine the standards of higher education and
the same should not be lowered at the hands of any particular
State.
xxx xxx xxx xxx
147. Another   argument   that   has   been   put   forth  is   that   the
power   to   enact   laws   laying   down   process   of   admission   in
universities, etc. vests in both Central and State Governments
85
under Entry 25 of the Concurrent List only. Under Entry 25 of
the Concurrent List and erstwhile Entry 11 of the State List, the
State Government has enacted various legislations that inter
alia   regulate   admission   process   in   various   institutions.   For
instance, Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam,
Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya
Vidhi   Sansathan   Vishwavidyalaya   Adhiniyam,   etc.   were
established by the State Government in exercise of power under
Entry   25   of   the   Concurrent   List.   Similarly,   the   Central
Government has also enacted various legislations relating to
higher   education   under   Entry   25   of   the   Concurrent   List
pertaining   to   Centrally   funded   universities   such   as   the
Babasaheb   Bhimrao   Ambedkar   University   Act,   1994,   the
Maulana Azad National Urdu University Act, 1996, the Indira
Gandhi National Tribal University Act, 2007, etc. The Central
Government   may   have   the   power   to   regulate   the   admission
process for Centrally funded institutions like IITs, NIT, JIPMER,
etc. but not in respect of other institutions running in the State.
148. In view of the above discussion, it can be clearly laid down
that power of the Union under Entry 66 of the Union List is
limited to prescribing standards of higher education to bring
about uniformity in the level of education imparted throughout
the country. Thus, the scope of Entry 66 must be construed
limited   to   its   actual   sense   of   “determining   the   standards   of
higher education” and not of laying down admission process. In
no case is the State denuded of its power to legislate under List
III Entry 25. More so, pertaining to the admission process in
universities imparting higher education.
149. I   have   no   hesitation   in   upholding   the   vires   of   the
impugned legislation which empowers the State Government to
regulate   admission   process   in   institutions   imparting   higher
education within the State. In fact, the State being responsible
for welfare and development of the people of the State, ought to
take necessary steps for welfare of its student community. The
field of “higher education” being one such field which directly
affects the growth and development of the State, it becomes
86
prerogative of the State to take such steps which further the
welfare   of   the   people   and   in   particular   pursuing   higher
education. In fact, the State Government should be the sole
entity to lay down the procedure for admission and fee, etc.
governing   the   institutions   running   in   that   particular   State
except   the   Centrally   funded   institutions   like   IIT,   NIT,   etc.
because no one can be a better judge of the requirements and
inequalities­in­opportunity of the people of a particular State
than that State itself. Only the State legislation can create equal
level playing field for the students who are coming out from the
State Board and other streams.”
(emphasis supplied)
Thus, as held by the Constitution Bench of this Court in the
case   of  Modern   Dental   College   (supra),   in   which   this   Court
considered catena of earlier decisions of this Court dealing with
the scope and ambit of Entry 66 List I, Entry 66 of List I is a
specific entry having a very specific and limited scope; it deals
with   “Coordination   and   Determination   of   Standards”   in
institutions of higher education or research as well as scientific
and technical institutions.  It is further observed that the words
“Coordination   and   Determination   of   Standards”   would   mean
laying down the said standards and therefore when it comes to
prescribe the standards for such institutions of higher learning,
exclusive domain is given to the Union.  It is specifically further
observed that that would not include conducting of examination
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etc. and admission of students to such institutions or prescribing
the fee in these institutions of higher education, etc.   Thus, in
exercise   of   powers   under   Entry   66   List   I,   the   Union   cannot
provide for anything with respect to reservation/percentage of
reservation   and/or   even   mode   of   admission   within   the   State
quota, which powers are conferred upon the States under Entry
25 of List III.  In exercise of powers under Entry 25 List III, the
States have power to make provision for mode of admissions,
looking to the requirements and/or need in the concerned State.
10.2 We   note   that   as   per   catena   of   decisions   of   this   Court,
“institutional preference” in the postgraduate medical courses is
held   to   be   permissible   by   the   concerned   States,   (see  D.N.
Chanchala (supra); Pradeep Jain v. Union of India18; Dr. Dinesh
Kumar   v.   Motilal   Nehru   Medical   College,   Allahabad19;   Gujarat
University   v.   Rajiv   Gopinath   Bhatt20;   AIIMS   Students’   Union
(supra);   Saurabh   Chaudri   v.   Union   of   India21;   and   Yatinkumar
Jasubhai Patel (supra)).
18 (1984) 3 SCC 654
19 (1986) 3 SCC 727
20 (1996) 4 SCC 60
21 (2003) 11 SCC 146
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10.3 In a recent decision of this Court in the case of Yatinkumar
Jasubhai   Patel   (supra),  the   issue   of  “institutional   preference”
within   the   State   quota   was   considered   in   which   the   Gujarat
University   framed   the   rules   for   the   purpose   of   governing
admission to postgraduate courses.   One of the rules provided
that 50% of the seats shall be filled in as per the All India 50%
quota and the remaining seats will be available for the candidates
passing from the Gujarat University.   That was provided to the
candidates graduating from the Gujarat University. The aforesaid
rule of “institutional preference” was challenged before the High
Court.  The vires of the afore­stated rules providing “institutional
preference” giving preference to the candidates graduated from
the Gujarat University was challenged on the ground that in view
of introduction of the NEET and the admissions are given solely
on the basis of the merit and the marks obtained in NEET, the
rules providing “institutional preference” shall be violative of the
Indian Medical Council Act, 1956 and the MCI Regulations, 2000
framed under the Indian Medical Council Act, 1956.   The High
Court   dismissed   the   writ   petition   upholding   the   “institutional
preference”.  The same was the subject matter before this Court.
It was submitted on behalf of the writ petitioners that even the
89
MCI Regulations for postgraduate admissions, MCI Regulations,
2000, do not permit the “institutional preference” and that the
MCI Regulations, 2000 held by this Court to be a complete code
and therefore no reservation is to be provided unless the same is
permitted under the MCI Regulations, 2000.  The decision of this
Court in the  case of Dinesh   Singh   Chauhan   (supra)  was also
placed   into   service.     However,   considering   the   plethora   of
decisions of this Court, referred to hereinabove, this Court has
again held that “institutional preference” is permissible and even
the   introduction   of   NEET   would   not   affect   the   “institutional
preference”.  This Court has noted that “institutional preference”
up to 50% seats is permissible.
11. Now   let   us   consider   the   scope   and   ambit   of   the   MCI
Regulations,   2000,   and   whether   MCI   Regulations,   2000   take
away the power of the States under Entry 25 List III to provide for
separate   source   of   entry   for   in­service   candidates   seeking
admission to postgraduate degree courses?
11.1 At this stage, Regulation 9 of MCI Regulations, 2000, as
amended on 15.2.2012, is required to be referred to, which reads
as under:
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“9.  Regulation   9,   as   amended   on   15­2­2012,   reads   as
follows:
“9. Procedure for selection of candidate for postgraduate
courses shall be as follows:
(I)   There   shall   be   a   single   eligibility­cum­entrance
examination, namely, “National Eligibility­cum­Entrance
Test for admission to Postgraduate Medical Courses” in
each academic year. The superintendence, direction and
control   of   National   Eligibility­cum­Entrance   Test   shall
vest with National Board of Examinations under overall
supervision of the Ministry of Health & Family Welfare,
Government of India.
(II) 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:
Provided   further   that   this   entire   exercise   shall   be
completed by each medical college/institution as per the
statutory time schedule for admissions.
(III)   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   Eligibility­cumEntrance Test for Postgraduate courses” held for the said
academic   year.   However,   in   respect   of   candidates
belonging to the Scheduled Castes, the Scheduled Tribes,
the Other Backward Classes, the minimum marks shall
be at 40th percentile. In respect of candidates as provided
in clause (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   all­India   common   merit   list   in
“National Eligibility­cum­Entrance Test” for postgraduate
courses:
Provided when sufficient number of candidates in the
respective categories fail to secure minimum marks as
prescribed in National Eligibility­cum­Entrance Test held
for   any   academic   year   for   admission   to   postgraduate
courses, the Central Government in consultation with the
MCI   may   at   its   discretion   lower   the   minimum   marks
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required   for   admission   to   postgraduate   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 all­India merit list as well as Statewise merit list of the
eligible candidates shall be prepared on the basis of the
marks  obtained in National  Eligibility­cum­Entrance Test
and candidates shall be admitted to postgraduate 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 up to the maximum of 30%
of the marks obtained in National Eligibility­cum­Entrance
Test, the remote and difficult areas shall be as defined by
the   State   Government/competent   authority   from   time   to
time.
  (V)   No   candidate   who   has   failed   to   obtain   the
minimum   eligibility   marks   as   prescribed   in   clause   (II)
above shall be admitted to any postgraduate courses in
the said academic year.
(VI) In non­governmental medical colleges/institutions,
50% (fifty per cent) of the total seats shall be filled by the
State Government or the Authority appointed by them,
and the remaining 50% (fifty per cent) of the seats shall be
filled by the medical colleges/institutions concerned on
the basis of the merit  list prepared as per the marks
obtained in National Eligibility­cum­Entrance Test.
(VII) 50% of the seats in postgraduate 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.
(VIII) The Universities and other authorities concerned
shall   organise   admission   process   in   such   a   way   that
teaching in postgraduate courses starts by 2nd May and
by 1st August for super speciality courses each year. For
this purpose, they shall follow the time schedule indicated
in Appendix III.
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(IX) 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.
(X) The MCI 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 recognised 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.”
11.2 Regulations, 2000 are framed by the MCI in exercise of
its   powers   conferred   under   Section   33   of   the   Indian   Medical
Council Act, 1956.   The Indian Medical Council Act, 1956 has
been   enacted/passed   by   the   Union   in   exercise   of   powers
conferred under Entry 66, List I. Therefore, the main source of
power of the MCI would be from Entry 66 List I.  As per Section
33 of the MCI Act, the Council may with the previous sanction of
the Central Government make regulations generally to carry out
the purpose of the said Act.   Therefore, in exercise of powers
under Section 33 of the MCI Act, Regulations 2000 are made by
the MCI.  As observed hereinabove, the MCI draws the power from
Entry 66 List I.   As observed hereinabove, Entry 66 List I is a
93
specific entry having a very specific and limited scope which deals
with “Coordination and Determination of Standards” of higher
education   for   research   as   well   as   scientific   and   technical
institutions.   In fact, such “Coordination and Determination of
Standards”,   insofar   as   medical   education   is   concerned,   is
achieved   by   parliamentary   legislation   in   the   form   of   Indian
Medical Council Act, 1956 and by creating the statutory body like
MCI.  The functions that are assigned to MCI include within its
sweep “Determination of Standards” in a medical institution as
well   as   “Coordination   of   Standards”   and   that   of   educational
institutions.     As   discussed   hereinabove,   when   it   comes   to
regulating   “education”   as   such,   which   includes   even   medical
education as well as universities, that is prescribed in List III,
Entry 25.
11.3 If one considers the Statement of Objects and Reasons of the
Indian Medical Council Act, 1956, it cannot be said that the
Medical Council of India would have any authority or jurisdiction
to   frame   any   regulations   with   respect   to   reservation   and/or
making special provision like providing for a separate source of
entry for in­service candidates seeking admission to postgraduate
94
degree courses.  Regulations, 2000 have been made in exercise of
powers under Section 33 of the MCI Act.  Section 33 of the MCI
Act reads as under:
“33. Power to make Regulations.The Council may, with
the   previous   sanction   of   the   Central   Government,   make
regulations generally to carry out the purposes of this Act, and,
without   prejudice   to   the   generality   of   this   power,   such
regulations may provide for—
(a)  the management of the property of the Council and the
maintenance and audit of its accounts;
(b)  the summoning and holding of meetings of the Council,
the times and places where such meetings are to be
held,   the   conduct   of   business   thereat   and   the
number   of   members   necessary   to   constitute   a
quorum;
(c)    the resignation of members of the Council;
(d)     the powers and duties of the President  and VicePresident;
(e) the mode of appointment of the Executive Committee
and other Committees, the summoning and holding
of meetings, and the conduct of business of such
Committees;
(f)    the tenure of office, and the powers and duties of the
Registrar   and   other   officers   and   servants   of   the
Council;
(fa) the form of the scheme, the particulars to be given in
such scheme, the manner in which the scheme is to
be preferred and the fee payable with the scheme
under clause (b) of sub­section (2) of Section 10­A;
(fb)  any other factors under clause (g) of sub­section (7) of
Section 10­A;
(fc)   the criteria for identifying a student who has been
granted   a   medical   qualification   referred   to   in   the
Explanation to sub­section (3) of Section 10­B;
(g)     the   particulars   to   be   stated,   and   the   proof   of
qualifications   to   be   given   in   applications   for
registration under this Act;
(h)  the fees to be paid on applications and appeals under
this Act;
(i)       the appointment, powers, duties and procedure of
medical inspectors and visitors;
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(j)       the  courses  and  period  of  study and  of  practical
training   to   be   undertaken,   the   subjects   of
examination and the standards of proficiency therein
to be obtained, in Universities or medical institutions
for grant of recognised medical qualifications;
(k)   the   standards   of   staff,   equipment,   accommodation,
training and other facilities for medical education;
(l)  the conduct of professional examinations, qualifications
of examiners and the conditions of admission to such
examinations;
(m) the standards of professional conduct and etiquette and
code   of   ethics   to   be   observed   by     medical
practitioners; and
(ma) the modalities for conducting screening tests under
sub­section   (4­A),   and   under   the   proviso   to   subsection   (4­B),   and   for   issuing   eligibility   certificate
under sub­section (4­B), of Section 13;
(mb)   the   designated   authority,   other   languages   and   the
manner   of   conducting   of   uniform   entrance
examination to all medical educational institutions at
the undergraduate level and postgraduate level;
(n)   any matter for which under this Act provision may be
made by regulations.”
On a fair reading of entire Section 33 of the MCI Act, it does
not confer any authority and/or power to the MCI to frame the
regulations with respect to reservation in the medical courses,
more particularly, to provide for a separate source of entry for inservice   candidates   seeking   admission   to   postgraduate   degree
courses, as sought to be contended on behalf of the MCI and
counsel opposing for providing for a separate source of entry for
in­service candidates.
96
12. In light of the above observations, we shall consider the
relevant provisions of MCI Regulations, 2000, more particularly,
Regulation 9.  The title of Regulation 9 is “Procedure for selection
of candidate for postgraduate courses”.  Regulation 9(I) provides
that there shall be a single eligibility­cum­entrance examination,
namely, NEET.  Regulation 9(II) further provides that 3% seats of
the   annual   sanctioned   intake   capacity   shall   be   filled   up   by
candidates with locomotory disability.  Regulation 9(III) provides
for the eligibility criteria.  It provides that 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 NEET for postgraduate
courses.     However,   in   respect   of   candidates   belonging   to
SC/ST/OBC, the  minimum marks shall be at  40th  percentile.
Thus, it can be seen that Regulation 9(III) can be said to be
providing the standards which shall be within the domain and
legislative competence of the Union and the MCI, in exercise of
powers under Entry 66, List I.  The first part of Regulation 9(IV)
speaks   for   the   reservation   of   seats   in   medical
colleges/institutions.  It provides that the reservation of seats in
medical colleges/institutions for respective categories shall be as
97
per applicable laws prevailing in States/Union Territories.  It
further provides for preparing all­India merit list as well as Statewise merit list of the eligible candidates on the basis of the marks
obtained   in   NEET   and   candidates   shall   be   admitted   to
postgraduate courses from the said merit lists only.   To that
stage,   it   can   be   said   that   the   same   is   within   the   legislative
competence of the Union/MCI, in exercise of powers under Entry
66 List I.
However, proviso to Regulation 9(IV) further provides 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 up to the maximum of 30% of the
marks obtained in NEET.  It further provides that the remote and
difficult   areas   shall   be   as   defined   by   the   State
Government/competent authority from time to time.  Thus, it can
be seen that even the proviso can be said to be with respect to
preparing the merit list only. 
98
12.1 As held by this Court in earlier decisions, Regulation 9(IV) is
limited only to reservation in favour of SC/ST/OBC and as per
the prevailing laws in the States.  If that be so, then the proviso
which as such is not dealing with the reservation cannot be said
to be in the form of an exception to first part of Regulation 9(IV)
and it can be seen that it is an independent provision dealing
with the in­service candidates and that too for the purpose of
preparing   the   merit   list.     Thus,   the   proviso   becomes   the
substantive provision and is more concerned with the marks to be
allocated which is the concern of Regulation 9(III).   It is also
required to be noted that even this proviso confers a discretion on
the   State   to   provide   for   weightage   in   marks   for   the   services
rendered in remote or difficult areas.   The proviso only enables
the States by conferring the discretion for weightage.  The proviso
has nothing to do with the reservation in the postgraduate degree
courses and therefore it shall not negate the State’s power to
make reservation and/or make special provision to provide for a
separate   source   of   entry   for   in­service   candidates   seeking
admission   to   postgraduate   degree   courses.     Thus,   Regulation
9(IV) as such cannot be said to be taking away the power of the
States under Entry 25, List III, to provide for a separate source of
99
entry for in­service candidates seeking admission to postgraduate
degree courses.  Any contrary view would affect the right of the
States to make reservation and/or to make special provision for
admission in exercise of powers under Entry 25 List III.  If it is
construed that Regulation 9 of the MCI Regulations, 2000, more
particularly Regulation 9(IV) provides for reservation and/or deals
with the reservation for in­service candidates, in that case, it will
be beyond the legislative competence of the Union as well as it
will be ultra vires to the Indian Medical Council Act, 1956.  As
observed hereinabove, Section 33 of the Indian Medical Council
Act,   1956   does   not   confer   any   power   on   the   MCI   to   make
regulations with respect to reservation.  At the cost of repetition,
it   is   observed   that   “institutional   preference”,   despite   MCI
Regulations, 2000, has been upheld and held to be permissible by
the concerned States.
13. The sum and substance of the above discussion would be
that,
1) that Entry 66 List I is a specific entry having a
very limited scope;
2) it  deals  with   “coordination   and  determination
of standards” in higher education;
100
3) the  words   “coordination   and  determination  of
standards   would   mean   laying   down   the   said
standards;
4) the  Medical   Council   of   India   which   has   been
constituted   under   the   provisions   of   the   Indian
Medical   Council   Act,   1956   is   the   creature   of   the
statute   in  exercise  of  powers  under  Entry  66  List   I
and   has   no   power   to   make   any   provision   for
reservation,   more   particularly,   for   in­service
candidates   by   the   concerned   States,   in   exercise   of
powers under Entry 25 List III;
5) that   Regulation   9   of   MCI   Regulations,   2000
does   not   deal   with   and/or   make   provisions   for
reservation  and/or  affect  the   legislative  competence
and   authority   of   the   concerned   States   to   make
reservation   and/or  make   special   provision   like   the
provision providing for a separate source of entry for
in­service   candidates   seeking   admission   to
postgraduate   degree   courses   and   therefore   the
concerned States to be within their authority and/or
legislative   competence   to   provide   for   a   separate
source   of   entry   for   in­service   candidates   seeking
admission to postgraduate degree courses in exercise
of powers under Entry 25 of List III; and
6) if   it   is   held   that   Regulation   9,   more
particularly,   Regulation  9(IV)   deals  with   reservation
for in­service candidates, in that case, it will be ultra
vires of the Indian Medical Council Act, 1956 and it
will   be   beyond   the   legislative   competence   under
Entry 66 List I.
14. Now so far as the law for in­service candidates and the
object and purpose to provide reservation and/or to make special
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provision for admission for in­service candidates is concerned,
few decisions of this Court are required to be considered.
14.1 In   the   case   of  K.   Duraisamy   (supra),  the   Court   was
considering   the   following   provisions   of   the   Government   Order
dated 9.2.1999 issued by the State of Tamil Nadu:
“7.  xxx xxx xxx
“1. (iii)(a) The reservation will be confined to and kept
at 50% in favour of the in­service candidates on merit
basis.
(b)   50%   of   the   seats   available   in   each   of   the
specialities shall be allotted exclusively to the service
candidates.
(c) If a sufficient number of eligible service candidates
are not available for the seats reserved exclusively for
them,  such  vacancies  shall  be  filled up  by  the  nonservice candidates from the merit list/waiting list in the
respective   reserved   compartments.   If   vacancies   exist
even   after   this,   such   vacancies   shall   be   filled   up
applying   the   order   of   preference   indicated   in   the
prospectus.
(d) The following categories of Medical Officers only
will be treated as service candidates and considered for
selection against 50% of seats allocated exclusively for
service candidates:
(1) All Medical Officers selected by the TNPSC
and appointed in the Tamil Nadu Medical Services
on regular basis, who have put in minimum of 2
years' continuous service as on 1­2­1999.
(2) Medical Officers (or) Health Officers in the
Public Health Department who have been selected
by the TNPSC and working under the control of
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DPH   and   PM   and   who   apply   for   Public   Health
course   i.e.   diploma   in   Public   Health   can   be
considered as service candidates for DPH as the
above qualification namely diploma in Public Health
is essential for declaration of probation. However, to
consider   under   service   quota   for   MD   (SPM),   the
candidates must have completed 2 years of service
like the other postgraduate courses.
(3) Medical Officers who have put in 2 years of
continuous service and who are working in:
(i) Local bodies/municipalities in Tamil Nadu.
  (ii) Government of India institutions in   Tamil
Nadu.
 (iii) Public sector undertaking and organisation
under the control of the Government of India in
Tamil Nadu.
(iv)   Undertakings   and   organisations   of   the
Government   of   Tamil   Nadu.   These   Medical
Officers  should  produce bona  fide  certificates
from   the   authorities   concerned   with   the
declaration   to   serve   in   the   respective
institutions for a minimum period of 5 years
after completion of the course.
In that case, the Government of Tamil Nadu issued G.O
dated   9.2.1999   laying   down   the   procedure   for   selection   of
candidates for admission to postgraduate diploma, degree, MDS
and higher speciality courses.  The Government Order envisaged
reservation   confining   up   to   50%   in   favour   of   the   in­service
candidates on merit basis and further stipulated that 50% of the
seats   available   in   each   of   the   speciality   shall   be   allotted
103
exclusively to the service candidates. The Government Order also
enumerated various categories of Medical Officers, who alone will
be treated as in­service candidates and considered for selection
against   the   50%   of   the   seats   allocated   exclusively   for   service
candidates.     The   aforesaid   Government   Order   was   challenged
before the High Court.  The learned Single Judge, while allowing
the writ petitions held that reservation of 50% of seats for nonservice candidates have to be given effect to or worked out by
selecting candidates from in­service and non­service, on the basis
of   merit   in   the   first   instance   and   thereafter   the   50%   seats
reserved for in­service candidates shall be filled up by the inservice candidates who could not gain selection on the basis of
merit as against the other 50% earmarked as “open”. The learned
Single Judge was further of the view that there is no category as
“non­service candidates”, and it is only the in­service candidates
who   form   a   separate   class.     Aggrieved,   some   of   the   selected
candidates   filed   writ   appeals,   which   came   to   be   dismissed
summarily.  The appeals filed by the State came up subsequently
before another Division Bench and finding themselves unable to
agree   with   the   order   of   dismissal   of   the   earlier   appeals,   the
matters   were   referred   for   consideration   by   a   larger   Bench.
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Thereupon the matters were placed before the Full Bench, which,
in turn, reversed the judgment of the learned Single Judge and
dismissed the writ petitions.  The judgment of the Full Bench was
the   subject   matter   before   this   Court.     While   considering   the
aforesaid provisions, this Court answered the question, namely,
“could the State Government have legitimately made a provision
allocating   50%   of   seats   exclusively   in   favour   of   in­service
candidates and keep open the avenue for competition for them in
respect of the remaining 50% along with others”, in affirmative.
In paragraphs 8 to 12, it is held as under:
“8. That the Government possesses the right and authority to
decide   from   what   sources   the   admissions   in   educational
institutions or to particular disciplines and courses therein have
to be made and that too in what proportion, is well established
and by now a proposition well settled, too. It has been the
consistent and authoritatively­settled view of this Court that at
the   super­speciality   level,   in   particular,   and   even   at   the
postgraduate level reservations of the kind known as “protective
discrimination” in favour of those considered to be backward
should be avoided as being not permissible. Reservation, even if
it be claimed to be so in this case, for and in favour of the inservice candidates, cannot be equated or treated on par with
communal reservations envisaged under Articles 15(4) or 16(4)
and extended the special mechanics of their implementation to
ensure such reservations to be the minimum by not counting
those selected in open competition on the basis of their own
merit   as   against   the   quota   reserved   on   communal
considerations.
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9. Properly speaking, in these cases, we are concerned
with the allocation of seats for admission in the form of a quota
amongst in­service candidates on the one hand, and non­service
or private candidates on the other and the method or manner of
working   out   in   practice   the   allocation   of   seats   among   the
members   of   the   respective   category.   Could   the   State
Government have legitimately made a provision allocating 50%
of seats exclusively in favour of the in­service candidates and
keep open the avenue for competition for them in respect of the
remaining   50%   along   with   others,   denying  a   fair   contest   in
relation to a substantial or sizeable number of other candidates,
who are not in service and who fall under the category of nonservice candidates, will itself be open to serious doubt. One
such   attempt   seems   to   have   been   put   in   issue   before   the
Madras High Court which held that reservation in favour of the
in­service candidates for the academic year 1992­93 should be
confined to 50% and awarding of two additional marks, instead
of one additional mark for each completed year of service in
primary   health   centres   was   unconstitutional   and   when   the
matter   was   brought   to   this   Court,   in   the   decision   reported
in State  of  T.N. v. T. Dhilipkumar [(1995) 5 Scale 208 (2)] the
decision of the High Court has been upheld. This Court also
further observed that the Government should appoint a highlyqualified committee to determine from year to year what, in fact,
should be the percentage­wise reservation required for the inservice   candidates,   having   regard   to   the   then   prevailing
situation and that the percentage of fifty per cent shall, if found
appropriate, be reduced.
10. The   stipulations   governing   the   selection   for
admissions in these cases have got to be viewed and construed
in the above backdrop of events and legal position. The learned
Single Judge, in our view, was certainly not right in equating
the provisions made for allocation of seats in the form of fixation
of   quota   in   this   case   with   the   usual   form   of   communal
reservations and allowing himself to be carried away by the
peculiar method of working out such reservations in order to
ensure   adequate   representation   to   such   candidates,   and
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applying those principles to construe a provision of the nature
involved in these cases. Yet another error in the reasoning of the
learned Single Judge lies in his assumption that “open quota”
seats have to be thrown open to all and are meant only to be
filled up purely on the basis of merit performance and no one
from even the class of candidates in whose favour a special
quota   has   already   been   provided   can   be   excluded   from
consideration as against the “open quota”. This reasoning of the
learned Single Judge not only ignores the object and scheme
underlying   the   allocation   of   seats   for   admissions   for   the
academic year 1999­2000, but has the consequence of rewriting
the prospectus and introducing altogether a different pattern of
admissions, overriding the policy of the Government aimed at
meeting out equal justice and affording equality of opportunity
to   the   different   categories   classified   for   the   purpose.   If   the
Government can be said to possess the power to fix a quota for
the   exclusive   benefit   of   “in­service”   candidates,   it   is   beyond
comprehension or dictates of either reason or logic as to why the
Government cannot equally exclusively earmark the remaining
seats in favour of “non­service” or private candidates, thereby
confining the claims of service candidates to the number of
seats   earmarked   and   allocated   to   them.   As   there   can   be   a
classified   category   of   “service   candidates”,   it   is   open   to   the
Government to make classification of all those other than those
falling   in   the   category   of   service   candidates   as   non­service
candidates and allocate the remaining seats after allotment to
the service candidates for exclusive benefit of the source of nonservice or private candidates. There is nothing in law which
deprives   the   Government   of   any   such   powers   and   no   such
impediment has either been brought to our notice at the time of
hearing or seems to have been brought to the notice of the
learned Single Judge to warrant any such construction, as has
been adopted by him. We are also of the view that it does not lie
in the mouth of the writ petitioners to raise a bogey of selection
based on merit alone, only in respect of a portion of the seats
available for admission to non­service candidates, when they
belong to and are part of a category or class who have got in
their favour fifty per cent of the number of seats in each of the
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disciplines allocated to their category of “in­service” candidates
to be filled up exclusively from such “in­service” candidates on
the basis of their own inter se merit and not on the overall merit
performance of all the candidates — both in­service and nonservice  put   together.  The   writ   petitioners   are  found  to  have
applied as in­service candidates and merely because they could
not be selected within the number of seats earmarked for their
category or class on the basis of the inter se merits among their
own class, they cannot be allowed to contend to the contrary in
retrospect and on hindsight experience of having obtained more
marks,   than   those   who   got   selected   as   against   the   seats
earmarked   and   allocated   to   the   non­service   candidates.   The
justification, both in law and on facts for exclusive allocation
and stipulation of a definite quota or number of seats for nonservice   or   private   candidates,   in   our   view,   lies   in   the   very
principle which warranted or enabled the fixation of a quota of
fifty per cent of seats and exclusively allotted to the in­service
candidates. Any countenance of such claims of the appellants is
likely to also endanger the very allocation of 50% of the seats
exclusively to the category of in­service candidates, too.
11. On a consideration of the reasoning of the Full Bench
as also the construction placed upon the Government Order and
the prospectus, we are of the view that the State Government, in
the undoubted exercise of its power, has rightly decided, as a
matter of policy, so far as the admissions to super­specialityand­postgraduate   diploma/degree/MDS   courses   for   the
academic session 1999­2000 are concerned to have scheme or
pattern   of   two   sources   of   candidates   based   upon   a   broad
classification into two categories, i.e., in­service candidates and
non­service   or   private   candidates   with   each   one   of   them
allocated   exclusively   for   their   own   respective   category   of
candidates fifty per cent of the seats, the ultimate selection for
admission   depending   upon   the   inter   se   merit   performance
amongst their own category of candidates. As pointed out by the
Full   Bench,   the   change   in   the   nomenclature   of   the
categorisation from “open competition” in 1998­1999, to “open
quota”   in   1999­2000   and   the   conspicuous   omission   in   the
108
scheme   and   the   prospectus   for   1999­2000   of   a   specific
stipulation   like   the   one   contained   in   clause   X   (5)   in   the
prospectus for 1998­1999 that the 50% of the seats available for
open   competition   shall   be   made   available   for   selection   and
admission of both service and non­service candidates, as also
the   stipulation  contained   in  the   Government   Order   and   the
prospectus   for   1999­2000   under   the   caption   “Criteria   for
selection under 50% open quota”, which specifically reads that
all other eligible Medical Officers except those specified in clause
(iii)(d)   above   (meaning   thereby   Medical   Officers   who   will   be
treated as service candidates and allowed to apply as such) are
eligible to apply under 50% of the open quota, supports the
stand of the State Government and the Selection Committee and
justifies the selections for admission already made by them. The
further stipulation that the reservation will be confined to and
kept at 50% in favour of the in­service candidates on merit
basis, coupled with the other provisions noticed above make it
abundantly clear that the selection of the in­service candidates
is confined to and has to be kept at 50% only of the total seats
and not against any of the other seats, exclusively earmarked
for the non­service or private candidates.
12. The mere use of the word “reservation” per se does
not   have   the   consequence   of   ipso   facto   applying   the   entire
mechanism underlying the constitutional concept of a protective
reservation   specially   designed   for   the   advancement   of   any
socially­and­educationally­backward   classes   of   citizens   or   for
the Scheduled Castes and the Scheduled Tribes, to enable them
to   enter   and   adequately   represent   in   various   fields.   The
meaning, content and purport of that expression will necessarily
depend upon the purpose and object with which it is used.
Since   reservation   has   diverse   natures   and   may   be   brought
about   in   diverse   ways   with   varied   purposes   and   manifold
objects, the peculiar principles of interpretation laid down by
the courts for implementing reservations envisaged under the
Constitution   in   order   to   ensure   adequate   and   effective
representation to the backward classes as a whole cannot be
readily applied out of context and unmindful of the purpose of
109
reservations as the one made in this case, more to safeguard the
interest of candidates who were already in service to enable
such   in­service   candidates   to   acquire   higher   and   advanced
education   in   specialised   fields   to   improve   their   professional
talents for the benefit of the patients to be treated in such
medical   institutions   where   the   in­service   candidates   are
expected to serve. That apart, where the scheme envisaged is
not by way of a mere reservation but is one of classification of
the   sources   from   which   admissions   have   to   be   accorded,
fixation   of   respective   quota   for   such   classified   groups,   the
principles at times applied in construing provisions relating to
reservation   simpliciter   will   have   no   relevance   or  application.
Though the prescription of a quota may involve in a general
sense reservation in favour of the particular class or category in
whose favour a quota is fixed, the concepts of reservation and
fixation of quota drastically differ in their purport and content
as well as the object. Fixation of a quota in a given case cannot
be said to be the same as a mere reservation and whenever a
quota is fixed or provided for one or more of the classified group
or   category,   the   candidates   falling   in   or   answering   the
description   of   different   classified   groups   in   whose   favour   a
respective quota is fixed have to confine their respective claims
against the quota fixed for each of such category, with no one in
one category having any right to stake a claim against the quota
earmarked for the other class or category. Since we are of the
view that the Full Bench has correctly come to the conclusion
that   the   scheme   adopted   for   selection   of   candidates   for
admissions in question provided for a definite and fixed quota
for   the   respective   classified   sources   of   admission   and   the
reasons   assigned   therefor   do   not   suffer   from   any   infirmity
whatsoever   to   call   for   any   interference   at   our   hands,   these
appeals fail and are dismissed.”
(emphasis supplied)
14.2 The   question   with   respect   to   reservation   for   in­service
candidates in medical colleges – post graduate courses again fell
for consideration before this Court in the case of Gopal D. Tirthani
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(supra).  In the aforesaid case, the State of Madhya Pradesh, while
making the Madhya Pradesh Medical and Dental PG Entrance
Examination Rules, 2002, provided for reservation of 20% seats
in PG degree/diploma courses for employees of the Government of
Madhya   Pradesh   (in­service).   The   Rules   further   provided   that
such in­service candidates are exempted from pre­PG Entrance
Examination and shall be nominated for doing postgraduation in
various degree/diploma courses as per selection criteria, terms
and   conditions   of   employer   Department.     The   Rules   further
provided that selection will be done on the basis of the individual
cumulative   performance   at   the   first,   second   and   third   MBBS
examinations if such examinations have been passed from the
same university.   The Rules which were under challenge before
the High Court further provided that only those candidates who
have completed five years of service under the Government of
Madhya Pradesh and who are not serving on contractual basis
will be eligible for selection as candidates who are in­service.  The
Rules   further   provided   that   for   the   purpose   of   selection   of
candidates who are in­service, 40% of the marks as weightage
would be given.  The High Court struck down as ultra vires the
111
PG  admission  (In­service) Rules,  2002  based  on  the  following
findings arrived at by it:
“11. xxx xxx xxx
“(a) There can be reservation for in­service employees for
postgraduate medical courses and reservation made for the said
employees   in   the   2002   Rules   does   not   suffer   from   any
constitutional invalidity.
(b) There has to be a common entrance examination for
admission in postgraduate medical courses so as to test the
comparative merit.
(c) The ‘In­Service Rules’ which provide for separate and
limited   examination   for   in­service   candidates   contravene   the
basic tenet and principle enunciated in the Regulations framed
by the Medical Council of India and, therefore, the same are
ultra vires.
(d) Conferral of benefit by grant of weightage to some inservice candidates/employees on the basis of their rendering
services in rural areas is hit by Article 14 of the Constitution as
well as stands in oppugnation to the Regulations framed by the
Medical Council of India and hence, is invalid and is liable to be
struck down.
(e) The distinction made between the in­service women
employees/women candidates who have served in rural areas
for three years and other women candidates who have rendered
service in other areas is discriminatory.
(f) The stance put forth by some of the petitioners that
there has to be some reservation for the category of employees
who are Assistant Surgeons from amongst the quota meant for
‘in­service candidates’ is devoid of any substance and hence,
deserves rejection.
(g)   The   limited   and   separate   examination   which   has
already   been   held   cannot   be   given   the   stamp   of   approval
because we have already held that In­Service Candidates Rules,
2002 are unconstitutional.”
112
12. In substance, the High Court upheld the validity of
reservation of 20% seats out of the total in favour of in­service
candidates.   It   held   that   the   in­service   candidates   and   open
category   candidates   had   to   be   subjected   to   one   common
entrance test for determining the comparative merit for entrance
into the postgraduate courses of study, and that the holding of
two separate tests — one for in­service candidates and one for
open   category   candidates   —   was   unsustainable,   being   in
contravention of the Regulations framed by the Medical Council
of India….”
(emphasis supplied)
Having noted the laudable purpose sought to be achieved by
making special provisions for in­service candidates and having
noted,   in­service   candidates   on   attaining   higher   academic
achievements would be available to be posted in rural areas by
the  State Government, this Court upheld the Rules providing
reservation for in­service candidates in PG courses.  The relevant
observations are in paragraphs 19 to 21, which read as under:
“19. The controversy in the present litigation does not
concern the open category candidates; it is confined to the inservice   candidates.   We,   therefore,   propose   to   preface   our
discussion by determining the nature of 20% seats allocated to
the in­service candidates — whether it is by way of reservation
or quota or is a channel of entry. Our task stands simplified by
the law laid down by a three­Judge Bench decision of this Court
recently in K. Duraisamy v. State of T.N. [(2001) 2 SCC 538] The
question   arose   for   decision   in   almost   a   similar   factual
background. The seats were at the State level and not all­India
113
quota seats. The State Government had allocated 50% of the
seats exclusively for in­service candidates and left the remaining
50% seats as open quota i.e. to be filled in from out of such
candidates   as   were   not   in   State   Government   service.   The
classification was made as “service quota” and “open quota”, for
in­service   candidates   and   other   candidates   respectively,
confining the respective class/cadre candidates to the respective
percentages   earmarked  for  the  two  of  them  exclusively.  The
Court held:
(i)   the   Government   possesses   the   right   and
authority to decide from what sources the admissions in
educational institutions or to particular disciplines and
courses therein have to be made and that too in what
proportion;
(ii) that such allocation of seats in the form of
fixation of quota is not to be equated with the usual
form   of   communal   reservation   and,   therefore,   the
constitutional   and   legal   considerations   relevant   to
communal reservations are out of place while deciding
the case based on such allocation of seats;
(iii) that such exclusive allocation and stipulation
of a definite quota or number of seats between in­service
and   non­service   or   private   candidates   provided   two
separate channels of entry and a candidate belonging to
one exclusive quota cannot claim to steal a march into
another exclusive quota by advancing a claim based on
merit. Inter   se merit   of   the   candidates   in   each   quota
shall be determined based on the merit performance of
the candidates belonging to that quota;
(iv) that the mere use of the word “reservation” per
se is not decisive of the nature of allocation. Whether it
is a reservation or an allocation of seats for the purpose
of providing two separate and exclusive sources of entry
would depend on the purpose and object with which the
expression   has   been   used   and   that   would   be
determinative of the meaning, content and purport of
the expression. Where the scheme envisages not a mere
reservation but is one for classification of the sources
114
from which admissions are to be accorded, fixation of
respective   quota   for   such   classified   groups   does   not
attract   applicability   of   considerations   relevant   to
reservation simpliciter.
20. K. Duraisamy case [(2001) 2 SCC 538] was considered
and   explained   by   another   three­Judge   Bench   of   this   Court
in AIIMS   Students'   Union v. AIIMS [(2002)   1   SCC   428]   .   The
following   observation   is   appropriate   and   apposite   for   the
purpose of the case at hand and is, therefore, extracted and
reproduced hereunder. The Court was considering the question
of   allocation   of   seats   between   in­service   and   open   category
candidates, the candidates in both the categories being medical
graduates,   and   not   a   reservation   in   favour   of   the   weaker
sections   of   society   or   those   who   deserve   or   need   to   be
affirmatively discriminated. The Court then said: (SCC pp. 447­
48, para 31)
“Some of them had done graduation sometime in
the past and were either picked up in the government
service   or   had   sought   for   joining   government   service
because,   maybe,   they   could   not   get   a   seat   in
postgraduation   and   thereby   continue   their   studies
because of shortage of seats in higher level of studies. On
account   of   their   having   remained   occupied   with   their
service obligations, they became detached or distanced
from   theoretical   studies   and   therefore   could   not   have
done so well as to effectively compete with fresh medical
graduates at the PG entrance examination. Permitting inservice   candidates   to   do   postgraduation   by   opening   a
separate   channel   for   admittance   would   enable   their
continuance in government service after postgraduation
which   would   enrich   health   services   of   the   nation.
Candidates   in   open   category   having   qualified   in
postgraduation   may   not   necessarily   feel   attracted   to
public   services.   Providing   two   sources   of   entry   at   the
postgraduation level in a certain proportion between inservice candidates and other candidates thus achieves the
laudable object of making available better doctors both in
115
public   sector   and   as   private   practitioners.   The   object
sought to be achieved is to benefit two segments of the
same society by enriching both at the end and not so
much as to provide protection and encouragement to one
at the entry level.”
21. To   withstand   the   test   of   reasonable   classification
within the meaning of Article 14 of the Constitution, it is well
settled that the classification must satisfy the twin tests: (i) it
must   be   founded   on   an   intelligible   differentia   which
distinguishes persons or things placed in a group from those left
out or placed not in the group, and (ii) the differentia must have
a rational relation with the object sought to be achieved. It is
permissible to use territories or the nature of the objects or
occupations or the like as the basis for classification. So long as
there is a nexus between the basis of classification and the
object sought to be achieved, the classification is valid. We have,
in the earlier part of the judgment, noted the relevant statistics
as made available to us by the learned Advocate­General under
instructions from Dr Ashok Sharma, Director (Medical Services),
Madhya Pradesh, present in the Court. The rural health services
(if it is an appropriate expression) need to be strengthened. 229
community health centres (CHCs) and 169 first­referral units
(FRUs) need to be manned by specialists and block medical
officers who must be postgraduates. There is nothing wrong in
the   State   Government   setting   apart   a   definite   percentage   of
educational seats at postgraduation level consisting of degree
and diploma courses exclusively for the in­service candidates.
To the extent of the seats so set apart, there is a separate and
exclusive source of entry or channel for admission. It is not
reservation. In­service candidates, and the candidates not in the
service of the State Government, are two classes based on an
intelligible differentia. There is a laudable purpose sought to be
achieved. In­service candidates, on attaining higher academic
achievements, would be available to be posted in rural areas by
the State Government. It is not that an in­service candidate
would leave the service merely on account of having secured a
postgraduate degree or diploma though secured by virtue of
116
being in the service of the State Government. If there is any
misapprehension, the same is allayed by the State Government
obtaining a bond from such candidates as a condition precedent
to   their   taking   admission   that   after   completing   PG
degree/diploma course they would serve the State Government
for another five years. Additionally, a bank guarantee of rupees
three lakhs is required to be submitted along with the bond.
There is, thus, clearly a perceptible reasonable nexus between
the classification and the object sought to be achieved.”
(emphasis supplied)
However, this Court has further held that there shall be only
one common entrance test.  In paragraphs 25 to 28, it is held as
under:
“25. The eligibility test, called the entrance test or the
pre­PG test, is conducted with dual purposes. Firstly, it is held
with   the   object   of   assessing   the   knowledge   and   intelligence
quotient of a candidate whether he would be able to prosecute
postgraduate   studies   if   allowed   an   opportunity   of   doing   so;
secondly, it is for the purpose of assessing the merit inter se of
the candidates which is of vital significance at the counselling
when it comes to allotting the successful candidates to different
disciplines wherein the seats are limited and some disciplines
are considered to be more creamy and are more coveted than
the others. The concept of a minimum qualifying percentage
cannot, therefore, be given a complete go­by. If at all there can
be departure, that  has to be minimal and that  too only by
approval of experts in the field of medical education, which for
the present are available as a body in the Medical Council of
India.
26. The Medical Council of India, for the present, insists,
through   its   Regulations,   on   a   common   entrance   test   being
conducted whereat the minimum qualifying marks would be
50%.   The   State   of   Madhya   Pradesh   must   comply   with   the
117
requirements of the Regulations framed by the Medical Council
of India and hold a common entrance test even if there are two
separate channels of entry and allow clearance only to such
candidates   who   secure   the   minimum   qualifying   marks   as
prescribed by the MCI Regulations. If the State has a case for
making   a   departure   from   such   rule   or   for   carving   out   an
exception in favour of any classification then it is for the State
to  represent   to  the  Central Government   and/or  the   Medical
Council   of   India   and   make   out   a   case   of   justification
consistently   with   the   afore­quoted   observation   of   this   Court
in Dayanand Medical College and Hospital case [(2001) 8 SCC
664] .
27. The in­service candidates may have been away from
academics and theories because of being in service. Still they
need to be assessed as eligible for entrance in PG. For taking up
such examination, they must either keep updating themselves
regularly   or   concentrate   on   preparatory   studies   to   entrance
examinations but without sacrificing or compromising with their
obligations to the people whom they are meant  to serve on
account of being in State services.
28. Clearly, the State of Madhya Pradesh was not justified
in   holding   and   conducting   a   separate   entrance   test   for   inservice   candidates.   Nor   could   it   have   devised   a   formula   by
combining clauses (i) and (iii) of Regulation 9(1) by resorting to
clause (iv). Recourse can be had to clause (iii) when there is only
one university. When there is only one university in one State,
the standard of assessment can reasonably be assumed to have
been the same for assessing the academic merit of the students
passing from that university. When there are more universities
than one in a State, the standards of different universities and
their   assessment   methods   cannot   obviously   be   uniform   and
may differ. Then it would be futile to assess the comparative
merit of individual performances by reference to clause (iii). The
High Court is, therefore, right in forming an opinion that in the
State   of   Madhya   Pradesh,   where   five   universities   exist,   the
method of evaluation contemplated by clause (iii) is not available
118
either   in   substitution   of   or   in   addition   to   clause   (i).   The
candidates qualified at the pre­PG or PG entrance test held in
common   for   in­service   and   open   category  candidates,   would
then be divided into two separate merit lists to be prepared for
the   two   categories   and   merit inter   se of   the   successful
candidates shall be available to be assessed separately in the
two respective categories.”
                                         (emphasis supplied)
Ultimately, in paragraph 36, this Court concluded as under:
“36.  We sum up our conclusions as under:
1. In the State of Madhya Pradesh allocation of 20%
seats in post­graduation in the universities of Madhya
Pradesh for in­service candidates is not a reservation; it is
a separate and exclusive channel of entry or source of
admission, the validity whereof cannot be determined on
the   constitutional   principles   applicable   to   communal
reservations. Such two channels of entry or two sources of
admission is a valid provision.
2. There can be only one common entrance test for
determining   eligibility   for   postgraduation   for   in­service
candidates and those not in service. The requirement of
minimum qualifying marks cannot be lowered or relaxed
contrary   to   the   Medical   Council   of   India   Regulations
framed in this behalf.
3. In the State of Madhya Pradesh there are five
universities   i.e.   there   are   universities   more   than   one.
Regulation 9(2)(iii) cannot be made use of in the State of
Madhya   Pradesh   either   singly   or   in   combination   with
clause (i) for determining the eligibility for entrance into
PG courses.
4. It is permissible to assign a reasonable weightage
to services rendered in rural/tribal areas by the in­service
candidates for the purpose of determining inter se merit
within   the   class   of   in­service   candidates   who   have
119
qualified in the pre­PG test  by securing the minimum
qualifying marks as prescribed by the Medical Council of
India.
(emphasis supplied)
14.3 The   question   with   respect   to   reservation   and/or   special
provisions for admission to PG courses with respect to in­service
candidates again fell for consideration before this Court in the
case of  Sudhir N (supra).   In the said decision, this Court also
considered Regulation 9 of the MCI Regulations, 2000, which
provided   that   general   category   candidates   must   secure   50%
marks in the common entrance examination.   In the aforesaid
case of Sudhir N (supra), 40% of the seats available in the State of
Kerala for postgraduate medical admission were reserved for inservice doctors serving in the Health Service Department, Medical
College Lecturers and doctors serving in the ESI department of
the State.  However, it was further provided that the admission
shall be made strictly on the basis of inter se seniority of the inservice candidates who have appeared in the common entrance
examination for the postgraduate medical admission and have
obtained the minimum eligibility benchmark in the test in terms
of the Regulations framed by the MCI.  Writ petitions were filed
120
before the High Court on the ground that the State legislature
could not enact a law that would make selection for admission to
the PG courses dependent solely on the seniority of the in­service
candidates   without   prescribing   the   minimum   conditions   of
eligibility   for   the   candidates   concerned.     The   High   Court   in
principle agreed that the admission to  PG courses should be
made   only   on   the   basis   of   inter   se   seniority   provided   the
candidates   appear   in   the   common   entrance   examination   and
qualify.
After considering various decisions of this Court, ultimately,
this Court upheld the decision of the High Court that inasmuch
as the provision of Section 5(4) of the 2008 Act which provides for
selection of candidates to be from the one stipulated by the MCI
Regulations, was beyond the legislative competence of the State
Legislature.     However,   upheld   the   reservation   for   in­service
candidates after considering the decision of this Court in the case
of Gopal D. Tirthani (supra) holding that in­service candidates to
be treated as a separate channel for admission to postgraduate
courses within that category.   Also, admission can be granted
only on the basis of merit.   It is to be noted that in the said
121
decision, this Court observed that Regulation 9 of the Regulations
2000 is a complete code by itself.  However, the said observation
can be said to be confined to the controversy before the Court and
the reference which was made shall be considered and dealt with
hereinbelow at an appropriate stage.
Thus, making special provision for in­service candidates and
the provisions for providing reservation for in­service candidates
in postgraduate medical courses have been upheld and approved
by this Court in the aforesaid decisions.
14.4 Even in the case of Dinesh Singh Chauhan (supra) also, while
upholding Regulation 9(IV) which provides weightage to the extent
of   10%   of   the   marks   obtained   by   the   candidates   in   the
competition test and to the extent of maximum 30% marks, this
Court has in paragraph 44 has observed as under:
“44. 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 healthcare facilities in remote and difficult
areas in the State for want of doctors. [Rural Health Statistics
for 2014­2015 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
s
Required Sanctioned In
position
Vacant Short
fall
MBBS 3497 4509 2209 2300 1288
122
Doctors   at
Primary
Health
Centres
(PHCs)
Specialists
at
Community
Health
Centres
(CHCs)
3092 2099 484 1615 2608
In fact there is a proposal to make one­year service for MBBS
students to apply for admission to postgraduate 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 in­service candidates and to attract more graduates to
join   as   medical   officers   in   the   State   healthcare   sector.   The
provision was first inserted in 2012. To determine the academic
merit of candidates, merely securing high marks in 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 healthcare 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   postgraduate   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 fulfils the test of Article 14 of
the Constitution, being in larger public interest.”
(emphasis supplied)
123
15. The   object   and   purpose   of   providing   separate   source   of
admission for in­service candidates is noted by this Court in the
cases of  K.   Duraisamy   (supra);  Gopal   D.   Tirthani   (supra); and
Sudhir N (supra).  Even the same is noted by this Court in the
case   of  Dinesh   Singh   Chauhan   (supra)  while   upholding   the
reservation   for   in­service   doctors   in   postgraduate   diploma
courses.  It has been consistently held by this Court that there is
a   legitimate   and   rational   basis   in   providing   a   separate
channel/source   of   entry   for   in­service   candidates   in   order   to
encourage them to offer their services and expertise to the State.
There is a sufficient nexus with the larger goal of equalization of
educational opportunities and to sufficiently prefer the doctors
serving in the various hospitals run and maintained out of public
funds, in the absence of which there would be serious dearth of
qualified Post­graduate doctors to meet the requirements of the
common public.  It is stated that the Government is facing public
health crisis. The effective and competent medical treatment is
not available in the rural and difficult areas.  In­service doctors
who pursue higher studies would naturally serve in rural and
124
difficult   areas   if   such   incentive   in   the   form   of   reservation   is
provided.
15.1 The action of the State to provide for the in­service quota is
in   the   discharge   of   its   positive   constitutional   obligations   to
promote and provide better health care facilities for its citizens by
upgrading the qualifications of the existing in­service doctors so
that the citizens may get more specialized health care facility.
Such action is in discharge of its constitutional obligations as
provided in Article 47 of the Constitution of India, which is the
corresponding fundamental right of the citizens protected under
Article 21 of the Constitution of India.
15.2 It is settled law that Article 21 of the Constitution of India
confers on the citizens of India a fundamental right to life and
personal liberty.  Right to health is integral part of the Right to
life and is a facet of Article 21.  In the case of Devika Biswas v.
Union of India22
, after considering its earlier decisions in the case
of  CESC   Ltd.   v.   Subhash   Chandra   Bose23  and  in  the case of
Paschim Banga Khet Mazdoor Samity v. State of West Bengal24
, it
is observed in paras 107, 108 and 109 as under:
22 (2016) 10 SCC 726
23 (1992) 1 SCC 441
24 (1996) 4 SCC 37
125
“107. It is well established that the right to life under
Article 21 of the Constitution includes the right to lead a
dignified and meaningful life and the right to health is an
integral facet of this right.   In CESC Ltd. v. Subhash
Chandra Bose (1992) 1 SCC 441 dealing with the right to
health of workers, it was noted that the right to health
must be considered an aspect of social justice informed
by not only Article 21 of the Constitution, but also the
Directive   Principles   of   State   Policy   and   international
covenants to which India is a party. Similarly, the bare
minimum   obligations   of   the   State   to   ensure   the
preservation   of   the   right   to   life   and   health   were
enunciated in Paschim Banga Khet Mazdoor Samity v.
State of W.B. (1996) 4 SCC 37.
108. In   Bandhua   Mukti   Morcha   v.   Union   of   India
(1984) 3 SCC 161, this Court underlined the obligation of
the State to ensure that the fundamental rights of weaker
sections   of   society   are   not   exploited   owing   to   their
position in society.
109. That the right to health is an integral part of the
right to life does not need any repetition.”
(emphasis supplied)
15.3 In a recent decision in the case of  Association of Medical
Superspeciality Aspirants & Residents v. Union of India25
,  it is
observed and held by this Court in paragraphs 25 and 26 as
under:
“25. It is for the State to secure health to its citizens as its
primary duty.   No doubt the Government is rendering this
obligation   by   opening   government   hospitals   and   health
centres, but in order to make it meaningful, it has to be within
the reach of its people, as far as possible, to reduce the queue
of waiting lists, and it has to provide all facilities to employ
best of talents and tone up its administration to give effective
contribution, which is also the duty of the government (State
of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117).
26.Right to health is integral to the right to life. Government
has   a   constitutional   obligation   to   provide   health   facilities
25 (2019) 8 SCC 607
126
(state of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83).
The   fundamental   right   to   life   which   is   the   most   precious
human right and which forms the ark of all other rights must
therefore be interpreted in a broad and expansive spirit so as
to invest it with significance and vitality which may endure for
years to come and enhance the dignity of the individual and
the worth of the human person.  The right to life enshrined in
Article 21 cannot be restricted to mere animal existence. It
means something much more than just physical survival. The
right to life includes the right to live with human dignity and
all that goes along with it, namely, the bare necessaries of life
such as adequate nutrition, clothing and shelter, and facilities
for reading, writing and expressing oneself in diverse forms,
freely moving about and mixing and commingling with fellow
human beings.”
(emphasis supplied)
15.4 A   healthy   body   is   the   very   foundation   for   all   human
activities.  In a welfare State, therefore, it is the obligation of the
State to ensure the creation and the sustaining of conditions
congenial   to   good   health.     Maintenance   and   improvement   of
public health have to rank high as these are indispensable to the
very physical existence of the community and on the betterment
of   these   depends   the   building   of   the   society   of   which   the
Constitution makers envisaged.   It is observed by this Court in
the   case   of  Vincent   Panikurlangara   v.   Union   of   India26  that
“attending to public health is of high priority, perhaps the one at
the top”.  It is the primary duty of a welfare State to ensure that
medical facilities are adequate and available to provide treatment.
26 AIR 1987 SC 990
127
15.5 In the case of  CESC Ltd. (supra), this Court has observed
and held that right to health is a fundamental right.   It went
further   and   observed   that   health   is   not   merely   absence   of
sickness.   The  term  health  implies  more  than  an   absence  of
sickness.     Medical   care   and   health   facilities   not   only   protect
against sickness but also ensure stable manpower for economic
development.     Facilities   of   health   and   medical   care   generate
devotion and dedication to give the workers’ best, physically as
well as mentally, in productivity.
15.6 In the case of  Municipal Council, Ratlam v. Vardhichand27
,
this Court through Justice Krishna Iyer observed: “The State will
realize   that   Article   47   makes   it   a   paramount   principle   of
governance that steps are taken for the improvement of public
health as amongst its primary duties. 
15.7 Even otherwise, the power of the State under Entry 6, List II
of Schedule VII to legislate in the subject matter of public health
and hospital is exclusive.
27 1980 Cri LJ 1075 = 1981 SCR (1) 97 = AIR 1980 SC 1622
128
15.8 Article 47 of the Constitution reiterates the constitutional
obligation imposed on the State to improve public health.   The
Directive Principle provides as follows:
“47. Duty of the State to raise the level of nutrition and
the standard of living and to improve public health – The
State shall regard the raising of the level of nutrition and
the standard of living of its people and the improvement
of  public  health  as among its  primary duties  and,  in
particular,   the   State   shall   endeavour   to   bring   about
prohibition   of   the   consumption   except   for   medicinal
purposes of intoxicating drinks and of drugs which are
injurious to health.”
15.9 As observed hereinabove, Article 21 of the Constitution of
India imposes an obligation on the State to safeguard the life of
every person.   Preservation of human life is thus of paramount
importance.  Thus, when the State provides a separate source of
admission for in­service doctors as a distinct class and within the
State quota and the object is laudable, the State is within its
power to provide such separate source of admission in exercise of
the powers under Entry 25 List III, read with Entry 6, List II.  It
cannot be said that there is no nexus with the laudable object of
meeting the requirement of qualified postgraduate doctors for the
public health services, more particularly, in the rural, tribal and
difficult areas.  As such, there is no conflict between the power of
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the Union and the State. As observed hereinabove, the occupied
filed of Union legislation in exercise of power under Entry 66, List
I is related to minimum standards of medical education and the
State   is   providing   the   in­service   quota   without   impinging   the
prescribed minimum standards.  It is a settled proposition of law
that in case of two entries might be overlapping, in that case, the
interpretation must be in furtherance of achieving the ultimate
object, in the present case to provide better health care in the
rural, tribal and difficult areas.  Any interpretation which would
negate and/or become nugatory the other entry, is to be avoided.
There must be a harmonious reading between the two entries.  In
the present case, as such and as observed hereinabove, there
shall not be any conflict between the power of the Union and the
State, while exercising the powers under Entry 66 List I by the
Union and under Entry 25 List III by the States.  Therefore, as
such, the State is within its power and is empowered to make
reservation   in   the   seats   of   the   postgraduate   medical   courses,
more particularly, for in­service doctors.
15.10 In   the   federal   structure,   the   State,   as   well   as   the
Parliament, have a constitutional directive for the upliftment of
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Scheduled Castes, Scheduled Tribes, and socially and backward
classes.     Therefore,   the   State   Government   have   the   right   to
provide reservation and in the field of employment and education,
looking to the specific/special need of public requirement in the
particular area.   There is no constitutional bar to take further
affirmative action as taken by the State Government in the cases
to achieve the goal.  Therefore, by allotting a specific percentage
within its State quota and to provide preferential treatment to a
particular   class,   cannot   be   said   to   be   beyond   the   legislative
competence   of   the   State.     On   the   contrary,   as   observed
hereinabove,   the   State   is   within   its   power   and   authority   to
provide such a preferential treatment to provide a better public
health in the rural, tribal and hilly areas.
16. It is to be noticed that earlier also the concerned States did
provide   reservation   for   in­service   government   medical
officers/doctors and the concerned States, as such, achieved the
goal of meeting the public health services in the rural, tribal and
difficult areas.  However, because of the misinterpretation of the
MCI Regulations, 2000, the problems have arisen.
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17. Even otherwise, Regulation 9 of the MCI Regulations, 2000
to   the   extent   not   providing   for   any   reservation   for   in­service
candidates working in the rural, tribal and difficult areas can be
declared   ultra   vires   on   the   ground   of   being   arbitrary,
discriminatory   and   violative   of   Articles   14   and   21   of   the
Constitution of India. It is required to be noted that Regulation 9,
more   particularly   Regulation   9(VII)   makes   provision   for
reservation   for   in­service   candidates   for   admission   to
postgraduate diploma courses only.  However, there is no reason
coming  out   of  either  from  the   Regulations   or  in   any  form  of
material produced by the MCI showing as to on what basis MCI
takes a stand that similar in­service reservation is not permissible
for admission to postgraduate degree courses.   Therefore, if the
very   concept   of   in­service   reservation   is   permissible   and
incorporated in the MCI Regulations, 2000, opposition to similar
reservation for postgraduate degree courses is unreasonable and
irrational.
18. Now so far as the observations made by this Court in the
cases of Sudhir N (supra) and Dinesh Singh Chauhan (supra) that
the MCI Regulations, 2000 is a complete code is concerned, it is
132
clear that the observations made by this Court in the case of
Sudhir N (supra) that Regulation 9 of the MCI Regulations, 2000
is a complete code is required to be considered with reference to
the context and controversy before the Court.
18.1 In the case of  Sudhir N (supra), the State law which was
under consideration by the Court provided that the seniority list
of selected candidates to be prepared directly based on seniority
of in­service doctors, irrespective of marks obtained by such inservice candidates in common PG entrance examination.  In that
context, this Court held that Regulation 9 of MCI Regulations,
2000   is   the   only   effective   and   permissible   basis   for   granting
admission to postgraduate medical courses and therefore it was
observed   that   Regulation   9   of   MCI   Regulations,   2000   is   a
complete code.  Therefore, the observations in the case of Sudhir
N (supra) that Regulation 9 is a complete code in itself may not be
construed with respect to providing reservation and/or making
special provision like providing separate source of entry for inservice candidates within the State quota and subject to fulfilling
of other criteria fixed and provided by the MCI.   Therefore, the
133
observations made by this Court in the case of  Dinesh Singh
Chauhan (supra) and as held by this Court in the case of Sudhir N
(supra)  that Regulation 9 is a complete code in itself cannot be
accepted and is held to be not a good law.   
19. When we consider the subsequent amendment in the year
2018, as made by notification dated 12.07.2018, it is provided
that a medical college/medical institution shall be entitled to seek
equal   number   of   Post   Graduate   Degree   (MD/MS)   seats   by
surrendering recognised diploma seats in corresponding course.
In view of the above, it has so happened that by and large in every
State the diploma seats are converted in PG Degree (MD/MS)
seats by surrendering recognised diploma seats.   The resultant
effect is that in­service candidates/doctors shall not be entitled to
any seat even in PG Diploma courses which has been provided
under Regulation 9(VII) of MCI Regulations 2000, as amended
from time to time.  Therefore, ultimately, it will affect the public
health and the common people in the rural, tribal and hilly areas
where there is a dearth of good and highly qualified doctors.
Therefore, if the rights of the States to provide such reservation
for in­service doctors in postgraduate degree/diploma courses is
134
not recognised, in that case, the ultimate sufferer would be the
public health and the common people, particularly the people
residing in rural, tribal and hilly areas.
Conclusions:
20. The   sum   and   substance   of   the   above   discussion   and
conjoint   reading   of   the   decisions   referred   to   and   discussed
hereinabove, our conclusions are as under:
1) that Entry 66 List I is a specific entry having a
very limited scope;
2) it deals with “coordination and determination
of standards” in higher education;
3) the words “coordination and determination of
standards   would   mean   laying   down   the   said
standards;
4) the  Medical  Council   of   India  which  has  been
constituted   under   the   provisions   of   the   Indian
Medical   Council   Act,   1956   is   the   creature   of   the
statute  in  exercise  of  powers  under  Entry  66 List  I
and   has   no   power   to   make   any   provision   for
reservation,   more   particularly,   for   in­service
135
candidates  by   the   concerned  States,   in   exercise  of
powers under Entry 25 List III;
5) that   Regulation   9   of   MCI   Regulations,   2000
does   not   deal   with   and/or   make   provisions   for
reservation and/or affect the legislative competence
and   authority   of   the   concerned   States   to   make
reservation  and/or  make   special  provision   like   the
provision providing for a separate source of entry for
in­service   candidates   seeking   admission   to
postgraduate   degree   courses   and   therefore   the
concerned States to be within their authority and/or
legislative   competence   to   provide   for   a   separate
source   of   entry   for   in­service   candidates   seeking
admission   to   postgraduate   degree   courses   in
exercise of powers under Entry 25 of List III;
6) if   it   is   held   that   Regulation   9,   more
particularly, Regulation 9(IV) deals with reservation
for   in­service   candidates,   in   that   case,   it   will   be
ultra vires of the Indian Medical Council Act, 1956
and   it   will   be   beyond   the   legislative   competence
under Entry 66 List I.;
7) Regulation  9  of  MCI  Regulations,  2000  to  the
extent   tinkering   with   reservation   provided   by   the
136
State for in­service candidates is ultra vires on the
ground   that   it   is   arbitrary,   discriminatory   and
violative of Articles 14 and 21 of the Constitution of
India;
8) that  the  State  has  the  legislative  competence
and/or authority to provide for a separate source of
entry for in­service candidates seeking admission to
postgraduate degree/diploma courses, in exercise of
powers   under   Entry   25,   List   III.     However,   it   is
observed that policy  must provide   that subsequent
to   obtaining   the   postgraduate   degree   by   the
concerned   in­service   doctors   obtaining   entry   in
degree courses through such separate channel serve
the State in the rural, tribal and hilly areas at least
for   five   years   after   obtaining   the   degree/diploma
and  for  that  they  will  execute  bonds  for  such  sum
the   respective  States  may   consider   fit  and  proper;
and
9)  it   is   specifically   observed   and   clarified   that
the present decision shall operate prospectively and
any admissions given earlier taking a contrary view
shall not be affected by this judgment.
137
27. In view of our above discussions and conclusions, the Civil
Appeals are allowed in the aforesaid terms and the impugned
judgment of the High Court at Calcutta dated 01.10.2019 passed
in MAT No. 1222 of 2019, connected with, MAT No. 1223 of 2019,
MAT 1224 of 2019, MAT 1239/2019, MAT 1245/2019, MAT 1267
of 2019 and MAT 1333 of 2019  is hereby set aside.  Writ Petition
Nos. 196/2018 connected with Writ Petition No.252/2018, Writ
Petition  No.  295/2018  and   Writ  Petition  No.  293/2018  stand
allowed   in   the   aforesaid   terms.   All   connected   interlocutory
applications stand disposed of. 
Before   parting   we   acknowledge   and   appreciate   the
cooperation by the learned Senior Counsels and other Advocates
appearing on behalf of their respective parties and assisting the
Court   in   concluding   hearing   in   such   an   important   matter,
through virtual court in a time when the entire world is facing
pandemic and difficult time.  Such a gesture and cooperation is
highly appreciable.
PER ANIRUDDHA BOSE, J.
Permission to file petition for special
leave to appeal is granted in the matter
138
registered as D-42890/19. Leave granted in all
the petitions for special leave to appeal.
2. There are altogether seventeen main
proceedings which are before us, all involving
a common question of law. That question is as
to whether under the scheme of our Constitution
and the provisions of the Postgraduate Medical
Education Regulations, 2000 (Regulations, 2000)
made by the Medical Council of India (Council)
under Section 33 of the Indian Medical Council
Act, 1956, a State has any power to reserve
seats for admission in postgraduate medical
degree courses for the medical professionals
working in governmental organisations within
that State. Such medical professionals we shall
refer to henceforth in this judgment as “inservice doctors”. We find that this is the term
commonly used to describe them in medicoadministrative parlance in different parts of
139
the country. Legislations pertaining to medical
education in this country is primarily guided
by two entries of the Seventh Schedule to the
Constitution of India, being Entry 66 of List I
(Union List) and Entry 25 of List III
(Concurrent List). These entries read:-
“Entry 66 of List I- Co-ordination
and determination of standards in
institutions for higher education
or research and scientific and
technical institutions.”
“Entry 25 of List III- Education,
including technical education,
medical education and universities,
subject to the provisions of
entries 63, 64, 65 and 66 of List
I; vocational and technical
training of labour.”
The conflict between the power of the Union
and the State in this set of cases does not
arise out of any primary legislation, but
emerges out of subordinate or delegated
legislations. The respective States have issued
Executive Orders to introduce such reservation.
140
The States of Kerala and West Bengal, have,
however traced their power of reservation to
certain State legislations and Rules made in
that behalf. But these factors are not of much
significance for adjudication of these matters.
We shall deal with the subject-controversy
applying the established principles for
resolving disputes arising out of
interpretation of statutory instruments in
relation to legislative competence of the Union
and the States.
3. Reference has also been made in course of
hearing of these matters before us to two other
entries in the State list for tracing the
source of State’s power to effect such
reservation. Entry 6 in the State List covers
“Public Health and Sanitation; hospitals and
dispensaries”. Entry 32 of the same List
specifies “Incorporation, regulation and
141
winding up of corporation, other than those
specified in List I, and universities,
unincorporated trading, literary, scientific,
religious and other societies and associations;
co-operative societies.” Learned counsel
appearing for some of the parties defending the
reservation have sought to anchor the
legislative power of the States to make
reservation of this nature on these entries as
well. But we do not accept this submission. We
are of the view that admission to postgraduate
degree courses in medical education cannot be
linked to the subject-heads specified against
the said two entries. The consequence of
reservation of this nature may have impact on
functioning of the institutes vis-à-vis the
items referred to in the said two entries, but
the said entries cannot be linked to any
statutory instrument originating from a State
142
providing for reservation of in-service doctors
in postgraduate medical degree courses. We
also would like to make it clear here that the
expression “reservation” we are using in this
judgment is not “reservation” in the manner the
same is referred to in the Constitution,
providing for compensatory discrimination. But
so far as the subject-controversy is concerned,
this expression really implies a separate
source of entry to the postgraduate medical
degree courses. We shall explain this
distinction in greater detail later in this
judgment.
4. Under the 1956 Act, different Rules and
Regulations have been made to carry out the
purposes of the said statute. Section 10D
thereof mandates a common entrance examination
both at the undergraduate and postgraduate
level. What concerns us in the present set of
143
proceedings is Clause 9 of the 2000 Regulations
which contains procedures for selection of
candidates for postgraduate medical courses.
This clause along with its sub-clauses has
undergone certain amendments from time to time
and has been brought in its present shape by
way of a notification published on 5th April,
2018. The said clause, as it stands now,
stipulates:-
“9. Procedure for selection of
candidate for postgraduate courses
shall be as follows:-
(1) There shall be a uniform
entrance examination to all
medical educational institutions
at the Postgraduate level namely
`National Eligibility-cum-Entrance
Test' for admission to
postgraduate courses in each
academic year and shall be
conducted under the overall
supervision of the Ministry of
Health & Family Welfare,
Government of India.
(2) The "designated authority" to
conduct the `National Eligibilitycum-Entrance Test' shall be the
144
National Board of Examination or
any other body/organization so
designated by the Ministry of
Health and Family Welfare,
Government of India.
(3) In order to be eligible for
admission to Postgraduate Course
for an academic year, it shall be
necessary for a candidate to
obtain minimum of marks at 50th
percentile in the `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, and Other Backward
Classes, the minimum marks shall
be at 40th percentile. In respect
of candidates with benchmark
disabilities specified under the
Rights of Persons with
Disabilities Act, 2016, the
minimum marks shall be at 45th
percentile for General Category
and 40th percentile for SC/ST/OBC.
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 Postgraduate Courses,
the Central Government in
145
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
academic year only.
(4) 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 Statewise merit list of the eligible
candidates shall be prepared on
the basis of the marks obtained in
National Eligibility-cum-Entrance
Test and candidates shall be
admitted to Postgraduate 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 upto 10% of the marks
obtained for each year of service
in remote and/or difficult areas
or Rural areas upto maximum of 30%
of the marks obtained in National
Eligibility-cum Entrance Test. The
remote and/or difficult areas or
Rural areas shall be as notified
by State Government/Competent
authority from time to time."
(5) 5% seats of annual sanctioned
intake capacity shall be filled up
by persons with benchmark
146
disabilities in accordance with
the provisions of the Rights of
Persons with Disabilities Act,
2016, based on the merit list of
National Eligibility-Cum-Entrance
Test for admission to Postgraduate
Medical Courses.
In order to be eligible for
admission to Postgraduate Course
for an academic year, it shall be
necessary for a candidate to
obtain minimum of marks at
50thpercentile in the `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, and Other Backward
Classes, the minimum marks shall
be at 40th percentile. In respect
of candidates with benchmark
disabilities specified under the
Rights of Persons with
Disabilities Act, 2016, the
minimum marks shall be at 45th
percentile for General Category
and 40th percentile for SC/ST/OBC.
(6) No candidate who has failed to
obtain the minimum eligibility
marks as prescribed in Sub-Clause
(3) above shall be admitted to any
Postgraduate courses in the said
academic year.
(7) In non-Governmental medical
colleges/institutions, 50% (Fifty
Percent) of the total seats shall
be filled by State Government or
the Authority appointed by them,
and the remaining 50% (Fifty
Percent) of the seats shall be
147
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."
(8) 50% of the seats in
Postgraduate 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 and / or Rural areas. After
acquiring the Postgraduate
Diploma, the Medical Officers
shall serve for two more years in
remote and /or difficult areas and
/ or Rural areas as defined by
State Government/Competent
authority from time to time.
(9) The Universities and other
authorities concerned shall
organize admission process in such
a way that teaching in broad
speciality postgraduate courses
starts by 1st May and for super
speciality courses by 1st August
each year. For this purpose, they
shall follow the time schedule
indicated in Appendix-III.
(10) There shall be no admission
of students in respect of any
academic session beyond 31st May
for postgraduate courses and 31st
August for super speciality
courses under any circumstances.
The Universities shall not
register any student admitted
beyond the said date.
(11) No authority / institution
shall admit any candidate to any
postgraduate medicine course in
148
contravention of the criteria /
procedure as laid down by these
Regulations and / or in violation
of the judgements passed by the
Hon'ble Supreme Court in respect
of admissions. Any candidate
admitted in contravention /
violation of aforesaid shall be
discharged by the Council
forthwith. The authority /
institution which grants admission
to any student in contravention /
violation of the Regulations and /
or the judgements passed by the
Hon'ble Supreme Court, shall also
be liable to face such action as
may be prescribed by the Council,
including surrender of seats
equivalent to the extent of such
admission made from its sanctioned
intake capacity for the succeeding
academic year / years.]”
5. The disputes in these matters largely
centre around sub-clause (4) and (8) of the
said clause. The content thereof subsisted in
the said Regulations in the form of sub-clauses
(IV) and (VII) of Clause 9 of the 2000
Regulations in substantially same form, when
the said clause was earlier amended, by a
Notification dated 15th February, 2012. Sub-
149
clauses (IV) and (VII) of Clause 9 of the 2000
Regulations stood in terms of the aforesaid
notification as:
“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 candidates shall
be prepared on the basis of the marks
obtained in National Eligibility-cumEntrance 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-cumEntrance Test. The remote and difficult
areas shall be as defined by State
Government/Competent authority from
time to time.
VII. 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
150
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.”
6. There has been another development
impacting the prospects of in-service doctors
in pursuing higher educational qualifications.
The Medical Council of India (MCI) has started
permitting conversion of seats in post-graduate
diploma course to “degree-seats” from July,
2018. So far as the State of Tamil Nadu is
concerned, (who are the respondent no.3 in Writ
Petition(civil) No. 196 of 2018) of the 545
post-graduate diploma seats, 542 seats have
been converted into seats for post-graduate
degree courses. This has been brought to our
notice by the learned Senior Counsel for the
State of Tamil Nadu, Mr. C.S. Vaidyanathan and
Mr. V. Giri. Such conversion, we are apprised,
151
is being permitted by virtue of an amendment
brought by the MCI to “The Opening of a New or
Higher Course of Study or Training (including
Post-graduate Course of Study or Training) and
Increase of Admission Capacity in any Course of
Study or Training (including Post-graduate
Course of Study or Training) Regulations 2000.”
This amendment permits medical colleges or
institutions to surrender their postgraduate
diploma seats to be replaced by postgraduate
degree seats. The said amendment was brought
about by a notification No.MCI-18(1)/2018-
Med./122294 dated 12th July 2018, in exercise
of power under Section 33 of the 1956 Act.
7. These proceedings originate from five
states, being Haryana, Kerala, Maharashtra,
West Bengal and Tamil Nadu. These States have
subsisting provisions for reservation of inservice doctors on the basis of different forms
152
of statutory instruments. In Writ Petition
(Civil) No.196 of 2018, in which the
petitioners are Tamil Nadu Medical Officers’
Association and two in-service doctors of that
State who had appeared in the National
Eligibility-cum-Entrance Test (NEET) in the
year 2018 for admission to postgraduate degree
course for the academic year 2018-19. This writ
petition was filed in the month of March 2018,
before the 2018 amendment of 2000 Regulations
came into operation. But sub-clause IV thereof,
as it prevailed then remains unaltered. Clause
VII of the then subsisting Regulations have
been incorporated in Clause 9 of the 2000
Regulations as sub-clause (8) in substance.
This Court has permitted intervention of G.M.S.
Class II Medical Officers’ Association in this
Writ Petition. The latter entity represents inservice doctors of the State of Gujarat. The
153
said Association had asked for transfer of a
petition pending in the High Court of Gujarat,
registered as SCA No.5773/2019 (GMS Class II
Medical Officers Association vs. State of
Gujarat & Ors.) to this Court in Transfer
Petition (Civil)No. 633 of 2020. This Court, by
an order passed on 22nd June, 2020, considering
urgency of the matter, did not consider
appropriate to transfer the matter. The
petitioner for transfer, however, was permitted
to intervene in the matter. Ms. Meenakshi
Arora, learned Senior Advocate argued for them
before us. Their grievances, as outlined in
their application, is over, inter-alia, change
in the policy in the State of Gujarat by
effecting reservation for in-service candidates
sponsored by the State Government of 50 per
cent seats in the diploma courses only,
excluding the degree courses from such
154
reservation or separate source of entry. This
has been done under Rule 6 of the Gujarat
Professional Postgraduate Medical Educational
Courses (Regulation of Admission) Rules, 2018.
These Rules have been framed under the Gujarat
Professional Medical Educational Colleges or
Institutions (Regulation of Admission and
Fixation of Fees) Act, 2007. Subsequently, all
the medical colleges in the State of Gujarat
have applied for conversion of their diploma
seats into degree courses. The applicants
contend that such conversion would nullify the
effect of Clause 9(8) of the 2000 Regulations.
The Association’s concern is that such
conversion would further shrink future academic
pursuit of the in-service doctors from that
State. It appears that the State of Gujarat had
provision for 25 per cent reservation for inservice candidates in postgraduate degree
155
courses before the MCI brought in the amended
Regulations. The Association seeks invalidation
of said Rule 6 as also direction upon the State
to implement policy of granting incentive marks
in terms of proviso to Clause 9(4) of the 2000
Regulations.
8. Reservation for in-service candidates in
postgraduate medical courses has been prevalent
in various States in different forms for quite
some time now, though the extent of such
reservation has varied, from State to State,
year to year. In the State of Maharashtra,
reservation of this category of doctors in
post-graduate degree seats had been subsisting
since 6th January, 1990 on the basis of
Government Resolutions, and the reservation
percentage stood at 25 per cent on the basis of
a Resolution dated 22nd February, 1996. This
has been pleaded in Writ Petition(C)No. 295 of
156
2018. This Writ Petition, as also Writ Petition
(Civil) No. 293 of 2018 and Writ Petition
(Civil) No. 252 of 2018 deal with Clause 9 of
the 2000 Regulations prior to its amendment
effected on 5th April 2018. The petitioner in
that proceeding is a State appointed medical
officer seeking the benefit of in-service
candidates’ reservation. The Writ Petition
registered as W.P.(C) No.293/2018 relates to
similar question of reservation in the State of
Haryana. The quota for in-service doctors in
the State of Haryana was increased from 27 per
cent to 40 per cent with effect from the 2001
session. The petitioners being in-service
doctors aspiring to undertake post-graduate
degree courses seek declaration to the effect
that the State retains power to reserve
postgraduate degree seats for the in-service
doctors even after coming into operation of
157
Clause 9(IV) of the 2000 Regulations in the
form we have already referred to. Their
alternative prayer is for invalidation of subclauses (IV) and (VII) of Clause 9 of the 2000
Regulations.
9. The State of Kerala had enacted the Kerala
Medical Officers Admission to Postgraduate
Courses under Service Quota Act, 2008 for
providing reservation in postgraduate courses
for medical officers in service of the State
Government on prescribed terms and conditions.
This Statute empowers the State Government to
reserve upto 40 per cent of post-graduate seats
for in-service candidates. The State had policy
of reservation of 40 per cent of the seats
available in postgraduate medical admissions
for in-service doctors on the basis of
seniority.
158
10. The State of West Bengal framed the West
Bengal Medical Education Service, the West
Bengal Health Service and the West Bengal
Public Health-cum-Administrative Service
(Placement on Trainee Reserve) Rules, 2015
under Section 21 of the West Bengal State
Health Services Act, 1990. Note to Rule 3
thereof confers power on the State Government
to specify the number of seats in different
postgraduate courses which may be available to
the in-service doctors. There have been
subsequent Executive Orders issued in this
regard. Reservation for the in-service doctors
by the State Government was successfully
challenged before the High Court by twentytwo
medical graduates appearing from the open
category who had cleared the entrance
examination through the Postgraduate NEET, 2019
conducted by the National Board of Examination
159
at all India level. Reservation for in-service
doctors in West Bengal was being continued in
terms of a memorandum bearing no.
HF/O/MERT/433//W-43/13 dated 18th April, 2013.
The seats involved were for MD-MS courses,
which are postgraduate medical degree courses.
In terms of the 2000 Regulations, half of the
total number of seats had been reserved for All
India quota and the other half had been
reserved for the State quota. After the second
round of counselling, the vacancies remaining
from the national quota were reverted back to
the State. The complaint of the writ
petitioners before the High Court was that the
State was seeking to fill up these reverted
seats in 60:40 ratio for the open category and
in-service candidates. A learned Single Judge
of the High Court allowed the writ petition on
the ground that such reservation was contrary
160
to the provisions of the 2000 Regulations. The
decision of the First Court was affirmed by a
Division Bench of the High Court. Admission of
the in-service doctors to postgraduate degree
courses pursuant to reservation of 40 per cent
of the State quota seats was directed to be
cancelled and a fresh merit list was also
directed to be prepared. In SLP(C) 26665 of
2019 and 26507-26510, 25487-25490 of 2019 and
Diary No. 42980 of 2019, the in-service doctors
have assailed the judgment of the Division
Bench of the Calcutta High Court. The State of
West Bengal is the appellant-petitioner in
SLP(C) Nos. 26448 of 2019 whereas the Vice
Chancellor, West Bengal University of Health
Sciences is the appellant-petitioner in
SLP(C)No. 26449 of 2019 and SLP(C)No. 26648 of
2019.
161
11. The main proceeding giving rise to this
reference is Writ Petition (Civil) No.196 of
2018. Mr. Arvind Datar, learned Senior Advocate
has argued in this writ petition for the
petitioners before us. In this writ petition,
following reliefs have been prayed for:-
“(a)Declare by issuance of a writ
of mandamus or any other suitable
writ/order/direction that
Regulation 9 of the Post Graduate
Medical Education Regulations,
2000 (more particularly,
Regulation 9 (IV) and 9(VII), does
not take away the power of the
States under Entry 25, List III to
provide for a separate source of
entry for in-service candidates
seeking admission to Degree
Courses;
(b)Alternatively, if Regulation 9
of the Post Graduate Medical
Education Regulations, 2000 is
understood to not allow for States
to provide for a separate source
of entry for in-service candidates
seeking admission to Degree
Courses, declare, by issuance of a
writ of mandamus or any other
suitable writ/order/direction,
Regulation 9 (more particularly,
Regulation 9 (IV) and 9 (VII) as
being arbitrary, discriminatory
162
and violative of Article 14 and
Article 19(1)(g)of the
Constitution and also ultra vires
the provisions of the Indian
Medical Council Act 1956; and
(c)Pass any such further
orders/directions which this
Hon’ble Court may deem fit and
proper in the interest of
justice.”
12. Before the institution of Writ Petition
(Civil) no.196 of 2018, a three-Judge Bench of
this Court in the case of State of Uttar
Pradesh & Ors. vs. Dinesh Singh Chauhan [(2016)
9 SCC 749] had examined the question as to
whether having regard to the provisions of
Clause 9 of the 2000 Regulations, State’s power
to provide for reservation of in-service
candidates in postgraduate medical degree
courses had been retained or not. This issue
was decided in the negative. Opinion of the
Bench of three Hon’ble Judges of this Court in
this case was that the effect of Clause 9 of
163
the 2000 Regulations was in effect forfeiture
of the power of the States in making provisions
for reservation in postgraduate medical degree
courses for in-service doctors. This case
dealt with Clause 9 of the 2000 Regulations as
it stood prior to 5th April 2018. In Sudhir N.&
Ors. vs. State of Kerala & Ors. [(2015) 6 SCC
685), a Division Bench of this Court has held
that Clause 9 of the 2000 Regulations is a
complete code by itself inasmuch as it
prescribes the basis for determining the
eligibility of candidates including the method
to be adopted for determining inter-se merit
which remains the only basis for such
admission. In the case of Dinesh Singh Chauhan
(supra), this view was confirmed by the threejudge Bench of this Court. We must, however,
point out here that in the case of Sudhir N.
(supra), the question which was addressed was
164
as to whether in-service candidates could be
given admission on the basis of inter-se
seniority alone.
13. As it would be evident from the aforesaid
proviso to sub-clause (4) of Clause 9 (as also
sub-clause IV of the same clause as it
prevailed after the amendment made on 15th
February 2012), the State Governments have been
conferred with the power to give weightage in
the marks as an incentive of upto 10 per cent
of the marks obtained for each year of service
in remote and the difficult areas. Rural areas
was added to this List on the basis of
amendment made on 5th April 2018. A capping of
30 per cent of the marks obtained in the NEET
on such weightage has been specified in the
said proviso. Sub-clause(8) of the present
Regulations, which is broadly similar to subclause VII of the same Regulations in its
165
earlier form, thereof permits the State
Governments to reserve 50 per cent of the seats
in postgraduate diploma courses for in-service
doctors who have served for at least three
years in remote and/or difficult areas or rural
areas. This reservation is subject to a further
condition that after acquiring a postgraduate
diploma the medical officers should serve two
more years in remote and/or in difficult areas
or rural areas as defined by the State
Government or the competent authorities.
14. In the case of Dinesh Singh Chauhan
(supra), before the High Court at Allahabad,
legality of two government orders dated 28th
February, 2014 and 17th April, 2014 was
questioned. These orders imposed condition of
working for three years in rural or difficult
areas for the in-service doctors aspiring for
postgraduate study. The State of Uttar Pradesh
166
at the material time had 30 per cent quota for
in-service candidates in the postgraduate
degree courses as well. The High Court held
that the admission process specified in Clause
9 of 2000 Regulations should be strictly
adhered to. The finding of the High Court, as
summarised in the judgment of Dinesh Singh
Chauhan (supra), was:-
“6. The High Court whilst adverting to the
decisions of this Court including the
recent judgment in Sudhir N. v. State of
Kerala [(2015) 6 SCC 685 : (2015) 2 SCC
(L&S) 323] 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-cumGovernment Order dated 28-2-2014 and
directed that admissions to postgraduate
“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 @ 10% of
the marks obtained for each year of
service in such areas up to the maximum of
167
30% marks obtained in National
Eligibility-cum-Entrance Test.”
15. In the aforesaid decision, the three-judge
Bench of this Court proceeded on the basis that
the procedure for admission to postgraduate
courses falls within Entry 66 of List I to the
Seventh Schedule of the Constitution of India.
It was, inter-alia, held in this judgment:-
“24. 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 much less by executive
instructions that may undermine the
procedure for admission to
postgraduate medical courses
enunciated by the Central legislation
and regulations framed thereunder,
being a subject falling within
Schedule VII List I Entry 66 of the
Constitution (see Preeti Srivastava
v. State of M.P.). The procedure for
selection of candidates for the
postgraduate degree courses is one
such area on which the Central
legislation and regulations must
prevail.
168
25. 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 postgraduate “degree”
courses. Regulation 9 is a composite
provision prescribing procedure for
selection of candidates—both for
postgraduate “degree” as well as
postgraduate “diploma” courses:
25.1. 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.
 25.2. 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.
25.3. Clause (III) provides for
eligibility for admission to any
postgraduate course in a particular
academic year.
25.4. 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
169
Territories. The reservation referred
to in the opening part of this clause
is, obviously, with reference to
reservation as per the constitutional
scheme (for the Scheduled Caste, the
Scheduled Tribe or the 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 Statewise merit list of
the eligible candidates shall be
prepared on the basis of the marks
obtained in NEET and the admission to
postgraduate courses in the State
concerned 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 the
Government or a public authority,
weightage in the marks may be given
by the Government/competent authority
as an incentive @ 10% of the marks
obtained for each year of service in
specified remote or difficult areas
of the State up to the maximum of 30%
of the marks obtained in NEET. This
provision even if read liberally does
not provide for reservation for inservice 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).
170
26. From the plain language of this
proviso, it is amply clear that it
does not envisage reservation for inservice candidates in respect of
postgraduate “degree” courses with
which we are presently concerned.
This proviso postulates giving
weightage of marks to “specified inservice candidates” who have worked
in notified remote and/or difficult
areas in the State—both for
postgraduate “degree” courses as also
for postgraduate “diploma” courses.
Further, the weightage of marks so
allotted is required to be reckoned
while preparing the merit list of
candidates.
 27. Thus understood, the Central
enactment and the regulations framed
thereunder do not provide for
reservation for in-service candidates
in postgraduate “degree” courses. As
there is no express provision
prohibiting reservation to in-service
candidates in respect of admission to
postgraduate “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
171
admission process in the present case
is governed by the regulations which
have come into force from the
academic year 2013-2014. This
Regulation is a self-contained code.
There is nothing in this Regulation
to even remotely indicate that a
separate channel for admission to inservice candidates must be provided,
at least in respect of postgraduate
“degree” courses. In
contradistinction, however, 50% seats
are earmarked for the postgraduate
“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 postgraduate “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
postgraduate “degree” courses. Thus,
the State Government, in law, had no
authority to issue a Government Order
such as dated 28-2-2014, 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 2000 Regulations, as
applicable from the academic year
2013-2014.”
16. The reliefs prayed for by the petitioners
in Writ Petition(C)No. 252 of 2018, Writ
172
Petition(C)No. 295 of 2018 and Writ
Petition(C)No. 293 of 2018 are broadly the
same. In the petition instituted by the
Association of Tamil Nadu Medical Officers, it
has been pleaded that since the year 1989, the
State of Tamil Nadu had a policy for providing
separate source of entry for in-service
candidates to the extent of the 50 per cent of
the seats in degree courses. Thereafter the
State had also provided weightage to those inservice doctors who have served in rural,
remote or difficult areas. The grievances of
the petitioners arose in the light of the
findings of this Court in the case of Dinesh
Singh Chauhan (supra). The petitioners’
apprehension was that it would be impermissible
for the State to provide a separate source of
entry for in-service candidates and that any
such exercise of power by State would be in
173
contradiction of Clause 9 which would cause
grave prejudice to them. In this context, they
made the prayers which we have already referred
to. A Bench of three Hon’ble Judges of this
Court, at the time of the admission of the Writ
Petition (Civil) no. 196 of 2018, on 13th April
2018 opined that the said writ petition
required consideration by a larger bench.
Before the said Bench of this Court, it was the
petitioners’ case in Writ Petition (Civil) no.
196 of 2018 that at least three Constitution
Bench decisions of this Court, R. Chitralekha
and Anr. vs. State of Mysore & Ors.(AIR 1964 SC
1823), Kumari Chitra Ghosh & Anr. vs. Union of
India & Ors. [(1969) 2 SCC 228] and Modern
Dental College and Research Centre & Ors. vs.
State of Madhya Pradesh & Ors. [(2016) 7 SCC
353] had not been considered in the case of
Dinesh Singh Chauhan (supra).
174
17. The Bench of three Hon’ble Judges in the
order passed on 13th April 2018, observed and
directed:-
“12. Having heard the learned senior
counsel appearing on both the sides
extensively, we are of the view that
Dinesh Singh Chauhan (supra), has not
considered the legislative Entries in
respect of the contentions we have
noted above. Apparently, it appears no
such contentions were raised before the
Court. Same is the situation with
regard to the non-reference with
respect to the three Constitution Bench
decisions we have referred to above. As
far as Modern Dental (supra) is
concerned, perhaps the judgment had not
been published by the time the judgment
in Dinesh Singh Chauhan (supra) was
rendered.
13. The petitioners have raised several
other contentions and invited our
reference to the judgments by Benches
of equal strength as in Dinesh Singh
Chauhan (supra).
14. In the above circumstances, we are
of the view that these writ petitions
require consideration by a larger
Bench.
15. Learned senior counsel appearing
for the petitioners have strenuously
pressed for an interim order since the
counseling has either commenced or in
175
some States it is only about to
commence. Having regard to the entire
facts and circumstances of the case, we
feel it is appropriate that even the
interim relief should be considered by
the larger Bench.
16. Accordingly, place the matters
before the Hon’ble the Chief Justice of
India for consideration by a larger
Bench, emergently.”
18. It is in this perspective the said writ
petition has been referred to us. In the other
proceedings which we are hearing now also the
same question of constitutional law is
involved. There are, however, certain factual
variations as regards the manner in which such
reservation is contemplated. We shall briefly
discuss first the ratio of the judgment in the
case of R. Chitralekha (supra). This was a case
decided when power was exclusively with the
State Legislature to legislate in respect of
“Education including universities, subject to
the provisions of Items 63, 64, 65 and 66 of
176
List I and 25 of List III”. At that point of
time, these items were enumerated against Entry
11 of List II of the Seventh Schedule to the
Constitution. The dispute in that case before
the Constitution Bench of this Court arose from
an order passed by the State Government
directing reservation of certain percentage of
seats in professional and technical colleges
and institutions. Such reservation was for
Backward Classes and Scheduled Castes and
Tribes. The Government order issued on 26th
July, 1963 also defined Backward Classes. The
criteria for marking, as stipulated, was that
25 per cent of maximum marks for examination in
the optional subjects was to be taken into
account for making the selection of candidates
for admission to engineering colleges was to be
fixed as interview marks. Criteria for
allotting marks in the interview was also
177
specified. The Selection Committee had evolved
certain different marking criteria for
interviews. Some of the unsuccessful candidates
had approached the High Court for quashing the
orders issued by the Government in the matter
of admissions to those institutions. The
petitioning candidates asked for direction that
admission should be in the order of merit. The
‘reservation’ part of Governmental Order was
sustained by the High Court. The High Court,
however, held that the Selection Committee had
abused the powers conferred upon it. The
interviews were set aside and direction was
issued by the High Court for holding interviews
afresh in accordance with the scheme laid down
by the Government. It was urged before the
Constitution Bench of this court by the writ
petitioners therein that the State Government
had no power to appoint a selection committee
178
for admitting students to colleges on the basis
of qualifications higher than or different from
those prescribed by the university. One of the
grounds for questioning the power of the State
Government to appoint a selection committee was
that coordination and determination of
standards of a university was a Union subject
and the State had no power to lay down Rules
for maintaining the standards of university
education. Referring to an earlier decision of
this Court, in the case of Gujarat University &
Anr. vs. Shri Krishna & Ors. [(AIR) 1963 SC
703], it was held by the Constitution Bench:-
“The question was whether medium of
instruction was comprehended by either
of those entries or whether it fell
under both. In that context it was
observed at p. 715-16:
‘The State has the power to prescribe
the syllabi and courses of study in the
institutions named in Entry 66 (but not
falling within Entries 63 to 65) and as
an incident thereof it has the power to
indicate the medium in which
instruction should be imparted. But the
179
Union Parliament has an overriding
legislative power to ensure that the
syllabi and courses of study prescribed
and the medium selected do not impair
standards of education or render the
coordination of such standards either
on an all India or other basis
impossible or even difficult.’
This and similar other passages
indicate that if the law made by the
State by virtue of Entry 11 of List II
of the Seventh Schedule to the
Constitution makes impossible or
difficult the exercise of the
legislative power of the Parliament
under the entry “coordination and
determination of standards in
institutions for higher education or
research and scientific and technical
institutions” reserved to the Union,
the State law may be bad. This cannot
obviously be decided on speculative and
hypothetical reasoning. If the impact
of the State law providing for such
standards on Entry 66 of List I is so
heavy or devastating as to wipe out or
appreciably abridge the central field,
it may be struck down. But that is a
question of fact to be ascertained in
each case. It is not possible to hold
that if a State Legislature made a law
prescribing a higher percentage of
marks for extra-curricular activities
in the matter of admission to colleges,
it would be directly encroaching on the
field covered by Entry 66 of List I of
the Seventh Schedule to the
Constitution. If so, it is not disputed
that the State Government would be
within its rights to prescribe
180
qualifications for admission to
colleges so long as its action does not
contravene any other law.”
19. In the case of Modern Dental College
(supra), a Constitution Bench of this Court
examined the impact of Entry 66 of the Union
List while analysing the legislative power of
the State in regulating certain aspects of
admission to institutions of higher education.
It was held in this judgment:-
“100. The competing entries are: List I
entry 66 and List III Entry 25. In the
process, List II Entry 32 also needs a
glance. Thus, for proper analysis, we
reproduce these entries below:
 List I
66. Coordination and determination of
standards in institutions for higher
education or research and scientific and
technical institutions.
List II
32. Incorporation, regulation and
winding up of corporations, other than
those specified in List I, and
universities; unincorporated trading,
literacy, scientific, religious and
other societies and associations;
cooperative societies.
181
List III
25. Education, including technical
education, medical education and
universities, subject to the provisions
of entries 63, 64, 65 and 66 of List I;
vocational and technical training of
labour.”
101.To our mind, Entry 66 in List I is a
specific entry having a very specific
and limited scope. It deals with
coordination and determination of
standards in institutions of higher
education or research as well as
scientific and technical institutions.
The words “coordination and
determination of standards” would mean
laying down the said standards. Thus,
when it comes to prescribing the
standards for such institutions of
higher learning, exclusive domain is
given to the Union. However, that would
not include conducting of examination,
etc, and admission of students to such
institutions or prescribing the fee in
these institutions of higher education,
etc. In fact, such coordination and
determination of standards, insofar as
medical education is concerned, is
achieved by parliamentary legislation in
the form of the Indian Medical Council
Act, 1956 and by creating the statutory
body like Medical Council of India (for
short “MCI”) therein. The functions that
are assigned to MCI include within its
sweep determination of standards in a
medical institution as well as
coordination of standards and that of
educational institutions. When it comes
182
to regulating “education” as such, which
includes even medical education as well
as universities (which are imparting
higher education), that is prescribed in
List III Entry 25, thereby giving
concurrent powers to both Union as well
as States. It is significant to note
that earlier education, including
universities, was the subject-matter of
List II Entry 11. Thus, power to this
extent was given to the State
Legislatures. However, this entry was
omitted by the Constitution (Fortysecond Amendment) Act, 1976 with effect
from 3-7-1977 and at the same time List
II entry 25 was amended. Education,
including university education, was thus
transferred to the concurrent List and
in the process technical and medical
education was also added. Thus, if the
argument of the appellants is accepted,
it may render Entry 25 otiose. When two
entries relating to education, one in
the Union List and the other in the
concurrent List, coexist, they have to
be read harmoniously. Reading in this
manner, it would become manifest that
when it comes to coordination and laying
down of standards in the higher
education or research and scientific and
technical institutions, power rests with
the Union/Parliament to the exclusion of
the State Legislatures. However, other
facets of education, including technical
and medical education, as well as
governance of universities is concerned,
even State Legislatures are given power
by virtue of Entry 25. The field covered
by List III entry 25 is wide enough and
as circumscribed to the limited extent
183
of it being subject to List I Entries
63, 64, 65 and 66.”
102. Most educational activities,
including admissions, have two aspects:
the first deals with the adoption and
setting up the minimum standards of
education. The objective in prescribing
minimum standards is to provide a
benchmark of the calibre and quality of
education being imparted by various
educational institutions in the entire
country. Additionally, the coordination
of the standards of education determined
nationwide is ancillary to the very
determination of standards. Realising
the vast diversity of the nation wherein
levels of education fluctuated from lack
of even basic primary education, to
institutions of high excellence, it was
thought desirable to determine and
prescribe basic minimum standards of
education at various levels,
particularly at the level of research
institutions, higher education and
technical education institutions. As
such, while balancing the needs of
States to impart education as per the
needs and requirements of local and
regional levels, it was essential to lay
down a uniform minimum standard for the
nation. Consequently, the Constitutionmakers provided for List I Entry 66 with
the objective of maintaining uniform
standards of education in fields of
research, higher education and technical
education.
184
103. The second/other aspect of
education is with regard to the
implementation of the standards of
education determined by Parliament, and
the regulation of the complete activity
of education. This activity necessarily
entails the application of the standards
determined by Parliament in all
educational institutions in accordance
with the local and regional needs. Thus,
while List I Entry 66 dealt with
determination and coordination of
standards, on the other hand, the
original List II Entry 11 granted the
States the exclusive power to legislate
with respect to all other aspects of
education, except the determination of
minimum standards and coordination which
was in national interest. Subsequently,
vide the Constitution (Forty-second
Amendment) Act, 1976, the exclusive
legislative field of the State
Legislature with regard to education was
removed and deleted, and the same was
replaced by amending List III Entry 25
granting concurrent powers to both
Parliament and State Legislature the
power to legislate with respect to all
other aspects of education, except that
which was specifically covered by List I
Entries 63 to 66.
104. No doubt, in Bharati
Vidyapeeth [Bharati Vidyapeeth v. State
of Maharashtra, (2004) 11 SCC 755 : 2
SCEC 535] it has been observed that the
entire gamut of admission falls under
List I Entry 66. The said judgment by a
185
Bench of two Judges is, however,
contrary to law laid down in earlier
larger Bench decisions.
In Gujarat University [Gujarat
University v. Krishna Ranganath
Mudholkar, AIR 1963 SC 703 : 1963 Supp
(1) SCR 112] , a Bench of five Judges
examined the scope of List II Entry 11
(which is now List III Entry 25) with
reference to List I Entry 66. It was
held that the power of the State to
legislate in respect of education to the
extent it is entrusted to Parliament, is
deemed to be restricted. Coordination
and determination of standards was in
the purview of List I and power of the
State was subject to power of the Union
on the said subject. It was held that
the two entries overlapped to some
extent and to the extent of overlapping
the power conferred by List I Entry 66
must prevail over power of the State.
Validity of a State legislation depends
upon whether it prejudicially affects
“coordination or determination of
standards”, even in absence of a Union
legislation. In R. Chitralekha v. State
of Mysore [R. Chitralekha v. State of
Mysore, AIR 1964 SC 1823 : (1964) 6 SCR
368] , the same issue was again
considered. It was observed that if the
impact of the State law is heavy or
devastating as to wipe out or abridge
the Central field, it may be struck
down. In State of T.N. v. Adhiyaman
Educational & Research Institute [State
of T.N. v. Adhiyaman Educational &
Research Institute, (1995) 4 SCC 104 : 1
186
SCEC 682] , it was observed that to the
extent that State legislation is in
conflict with the Central legislation
under Entry 25, it would be void and
inoperative. To the same effect is the
view taken in Preeti Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7
SCC 120 : 1 SCEC 742] and State of
Maharashtra v. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya [State of
Maharashtra v. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya, (2006) 9 SCC 1 :
5 SCEC 637] . Though the view taken
in State of M.P. v. Nivedita Jain [State
of M.P. v. Nivedita Jain, (1981) 4 SCC
296] and Ajay Kumar Singh v. State of
Bihar [Ajay Kumar Singh v. State of
Bihar, (1994) 4 SCC 401] to the effect
that admission standards covered by List
I Entry 66 could apply only post
admissions was overruled in Preeti
Srivastava [Preeti Srivastava v. State
of M.P.,(1999) 7 SCC 120 : 1 SCEC 742],
it was not held that the entire gamut
of admissions was covered by List
I as wrongly assumed in Bharati
Vidyapeeth [Bharati Vidyapeeth v. State
of Maharashtra, (2004) 11 SCC 755 : 2
SCEC 535.
105. We do not find
any ground for holding that
Preeti Srivastava [Preeti
Srivastava v. State of M.P., (1999) 7
SCC 120 : 1 SCEC 742] excludes
the role of States altogether from
admissions. Thus, observations
in Bharati Vidyapeeth [Bharati
187
Vidyapeeth v. State of Maharashtra,
(2004) 11 SCC 755 : 2 SCEC 535] that
entire gamut of admissions was covered
by List I Entry 66 cannot be upheld and
overruled to that extent. No doubt, List
III Entry 25 is subject to List I Entry
66, it is not possible to exclude the
entire gamut of admissions from List III
Entry 25. However, exercise of any power
under List III Entry 25 has to be
subject to a Central law referable to
Entry 25.
In Her concurring opinion, Banumathi J.(as
her Ladyship then was) observed :-
“132. The intent of our Constitution
Framers while introducing entry 66 of
the Union List was thus limited only to
empowering the Union to lay down a
uniform standard of higher education
throughout the country and not to bereft
the State Legislature of its entire
power to legislate in relation to
“education” and organising its own
common entrance examination.”
20. The Constitution Bench in the case of
Modern Dental College (supra) did not opine
that there was plenary legislative power of the
Union covering the entire field of admission in
188
higher educational institutions. In the case of
Dinesh Singh Chauhan (supra), another
Constitution Bench decision of this Court Dr.
Preeti Srivastava & Anr. vs. State of M.P. &
Ors.(1999)7 SCC 120 was referred to and
followed. In the case of Dr. Preeti Srivastava
(supra), this Court examined the following
question:
“The question is whether apart from
providing reservation for admission to
the postgraduate courses in
Engineering and Medicine for special
category candidates, it is open to the
State to prescribe different minimum
qualifying marks, for special category
candidates seeking admission under the
reserved category.”
21. The case of Preeti Srivastava (supra)
involved the question of prescribing minimum
percentage of qualifying marks for the reserved
category candidates (with reference to Article
15(4) of the Constitution of India). As regards
the respective powers of the State and the
189
Union to legislate in the field of education,
it was held:
“35. The legislative competence of
Parliament and the legislatures of
the States to make laws under
Article 246 is regulated by the
VIIth Schedule to the Constitution.
In the VIIth Schedule as originally
in force, Entry 11 of List II gave
to the State an exclusive power to
legislate on “education including
universities, subject to the
provisions of Entries 63, 64, 65 and
66 of List I and Entry 25 of List
III”.
Entry 11 of List II was deleted
and Entry 25 of List III was amended
with effect from 3-1-1976 as a
result of the Constitution 42nd
Amendment Act of 1976. The present
Entry 25 in the Concurrent List is
as follows:
“25. Education, including
technical education, medical
education and universities, subject
to the provisions of Entries 63, 64,
65 and 66 of List I; vocational and
technical training of labour.”
Entry 25 is subject, inter alia,
to Entry 66 of List I. Entry 66 of
List I is as follows:
“66. Coordination and
determination of standards in
institutions for higher education or
190
research and scientific and
technical institutions.”
Both the Union as well as the States
have the power to legislate on
education including medical
education, subject, inter alia, to
Entry 66 of List I which deals with
laying down standards in
institutions for higher education or
research and scientific and
technical institutions as also
coordination of such standards. A
State has, therefore, the right to
control education including medical
education so long as the field is
not occupied by any Union
legislation. Secondly, the State
cannot, while controlling education
in the State, impinge on standards
in institutions for higher
education. Because this is
exclusively within the purview of
the Union Government. Therefore,
while prescribing the criteria for
admission to the institutions for
higher education including higher
medical education, the State cannot
adversely affect the standards laid
down by the Union of India under
Entry 66 of List I. Secondly, while
considering the cases on the subject
it is also necessary to remember
that from 1977, education,
including, inter alia, medical and
university education, is now in the
Concurrent List so that the Union
can legislate on admission criteria
also. If it does so, the State will
191
not be able to legislate in this
field, except as provided in Article
254.”
22. On the aspect of laying down norms for
admission, it was held in the case of Dr.
Preeti Srivastava (supra):
36. It would not be correct to say
that the norms for admission have no
connection with the standard of
education, or that the rules for
admission are covered only by Entry
25 of List III. Norms of admission
can have a direct impact on the
standards of education. Of course,
there can be rules for admission
which are consistent with or do not
affect adversely the standards of
education prescribed by the Union in
exercise of powers under Entry 66 of
List I. For example, a State may,
for admission to the postgraduate
medical courses, lay down
qualifications in addition to those
prescribed under Entry 66 of List I.
This would be consistent with
promoting higher standards for
admission to the higher educational
courses. But any lowering of the
norms laid down can and does have an
adverse effect on the standards of
education in the institutes of
higher education. Standards of
education in an institution or
192
college depend on various factors.
Some of these are:
(1) the calibre of the teaching
staff;
(2) a proper syllabus designed to
achieve a high level of education in
the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students
and the hospital beds available to
each student;
(5) the calibre of the students
admitted to the institution;
(6) equipment and laboratory
facilities, or hospital facilities
for training in the case of medical
colleges;
(7) adequate accommodation for the
college and the attached hospital;
and
(8)the standard of examinations held
including the manner in which the
papers are set and examined and the
clinical performance is judged.”
23. From a composite reading of these
authorities, the position of law as emerges, is
that all aspects of admission cannot be said to
be covered by Entry 66 of the Union List, even
if the entire admission process is incorporated
193
in a single code. Certain aspects of admission
stipulated by the State may trespass into
legislative zone of “coordination and
determination of standards.” One illustration
of such potential trespass would be lowering
the eligibility criteria for admission fixed by
a Union legislation, the 2000 Regulations in
this case. In such a situation, the State would
be encroaching upon exclusive field of the
Union. The case of Preeti Srivastava (supra)
was decided broadly on this rationale. But
there can be Rules on facets of admission
process in institutions of higher education
framed by the State legislature which would not
have impact on the subjects enumerated against
Entry 66 of the Union List, and thus would not
result in conflict with the latter. While
analysing the State’s power to legislate under
Entry 11 of List II of the Seventh schedule of
194
the Constitution, as it originally existed, it
has been observed in the case of Modern Dental
College (supra) that “…except the determination
of minimum standards and coordination which was
in the national interest..”, the State had
power to legislate with respect to all other
aspects of education. Now that the subjects of
erstwhile Entry 11 of List II find their way in
the Concurrent List, the State’s power is
further subject to any statutory instrument
owing its origin to any Union legislation, even
if such statutory instrument is not enacted on
the basis of exclusive power of the Union
contained in Entry 66 of List I. In that
context, we would have to examine as to whether
these facets of admission to the postgraduate
medical degree course from a separate entry
channel comprising of in-service doctors stand
already covered or occupied by the statutory
195
instrument in the form of 2000 Regulations
owing its origin to a Union legislation comes
within the ambit of Entry 66 of List-I. If not,
the subject-entry would be in the concurrent
list and it would be permissible for the States
to lay down their own norms, which are not
covered by any Union legislations. In the case
of Modern Dental College (supra), this was the
judicial approach of the Constitution Bench.
We find support for taking this view from the
case of R. Chitralekha (supra) also. In the
latter authority, of course, the competing
entries were in List I and List II of the
Seventh Schedule of the Constitution and the
dispute was on methodology of marking in the
selection process as also reservation for
Backward Classes and Scheduled Castes. In R.
Chitralekha (supra), this Court, in substance
took the view that the subject heads of Entry
196
66 of List I did not encompass every aspect of
admission process in higher educational
institutions and opined that State legislative
competence stood retained to deal with certain
features connected with the admission process
also, unless the State’s action in that regard
directly encroached upon the subjects comprised
within the Union List. There can thus be
certain features of the admission procedure
over which the State can also have power to
make stipulations. In a more recent case,
Yatinkumar Jasubhai Patel and Others vs. State
of Gujarat and Ors. [(2019) 10 SCC 1], a Bench
comprising of three Judges examined a similar
question involving interpretation of Gujarat
University Act, 1949. In consideration of this
Court was Rules framed by the Gujarat
University for the purpose of governing
admission to postgraduate course. So far as
197
seats of the State List are concerned, these
were made available for the candidates of
Gujarat University. Such “institutional
preference” was held to be permissible by this
Court. This Court observed, inter-alia, in
this judgment:-
“9.5. Even while giving
admissions in the State
quota/institutional reservation
quota, still the admissions are
required to be given on the
basis of the merits determined
on the basis of NEET examination
results. Under the
circumstances, introduction of
the NEET scheme, as such, has
nothing to do with the
“institutional preference.....”
24. The third authority referred to by the
three Hon’ble Judges of this Court while
referring the Writ Petition of Tamil Nadu
Medical Officers Association & Ors., in
pursuance of which these matters have been
placed before us on reference, is the decision
198
of another Constitution Bench of this Court,
the case of Kumari Chitra Ghosh & Anr.(supra).
The dispute in this case was over reservations
made in respect of certain categories of
students for admission to the MBBS course in a
medical college under the Delhi University. 25
per cent of the seats (excluding the seats
reserved for Government of India nominees) were
reserved for girl students. There was,
however, eight stipulated categories of
students who were eligible for admission. These
categories included being residents of Delhi,
wards of central government servants posted in
Delhi, cultural scholars etc.
25. The minimum percentage of marks which a
candidate seeking admission was to obtain in
the aggregate of compulsory subject was 55. The
appellants obtained 62.5% marks and were
domiciled in Delhi. But they could not obtain
199
admission because of admission given to certain
students nominated by the Central Government
who got marks lower to what they had obtained.
They approached the Delhi High Court
questioning the power of the Central Government
to make nomination, but their petitions were
dismissed.
The appeal before this Court was by
certificate.
26. It was held in this judgment, on the aspect
of classification of that category of
students:-
“8. As laid down in Shri Ram
Krishna Dalmia v. Shri justice
S.R. Tendolkar & Others, Article
14 forbids class legislation; it
does not forbid reasonable
classification. In order to pass
the test of permissible
classification two conditions
must be fulfilled- (i) that the
classification is founded on
intelligible differentia which
distinguishes persons or things
that are grouped together from
200
others left out of the group and
(ii) differentia must have a
rational relation to the object
sought to be achieved. The first
group of persons for whom seats
have been reserved are the sons
and daughters of residents of
Union Territories other than
Delhi. These areas are well known
to be comparatively backward and
with the exception of Himachal
Pradesh they do not have any
Medical College of their own. It
was necessary that persons
desirous of receiving medical
education from these areas should
be provided some facility for
doing so. As regards the sons and
daughters of Central Government
servants posted in Indian
Missions abroad it is equally
well known that due to exigencies
of their service these persons
are faced with lot of
difficulties in the matter of
education. Apart from the
problems of language, it is not
easy or always possible to get
admission into institutions
imparting medical education in
foreign countries. The Cultural,
Colombo Plan and Thailand
scholars are given admission in
medical institutions in this
country by reason of reciprocal
arrangements of educational and
cultural nature. Regarding Jammu
and Kashmir Scholars it must be
201
remembered that the problems
relating to them are of a
peculiar nature and there do not
exist adequate arrangements for
medical education in the State
itself for its residents. The
classification in all these cases
is based on intelligible
differentia which distinguished
them from the group to which the
appellants belong.
9. It is the Central Government
which bears the financial burden
of running the medical college.
It is for it to lay down the
criteria for eligibility. From
the very nature of things it is
not possible to throw the
admission open to students from
all over the country. The
Government cannot be denied the
right to decide from what sources
the admission will be made. That
essentially is a question of
policy and depends inter alia on
an overall assessment and survey
of the requirements of residents
of particular territories and
other categories of persons for
whom it is essential to provide
facilities for medical education.
If the sources are properly
classified whether on
territorial, geographical or
other reasonable basis it is not
for the courts to interfere with
the manner and method of making
the classification.”
202
This judgment was founded on the principle of
reasonable classification and has been
subsequently followed in other cases as well
where certain categories of candidates have
been given benefits in the admission process
based on certain specified criteria.
27. The issue to be addressed now is as to
whether Clause 9 of the 2000 Regulations is
relatable to Entry 66 of List I of Seventh
Schedule of the Constitution or as to whether
the source of power to make such Regulation,
particularly in relation to providing a
separate entry channel for in-service
candidates come under Entry 25 of the
Concurrent List. In the event we find that the
entry relates to the Concurrent List, in such a
situation also we shall have to examine if the
field for formulating admission quota for in-
203
service doctors stands entirely occupied by the
aforesaid MCI Regulations or not. For this
exercise, however, we shall have to analyse the
different provisions of Clause 9 of the 2000
Regulations.
28. Before we embark on such analysis, we shall
deal with two other aspects of dispute having
Constitutional import involved in this
reference. First, we would test the nature or
character of the State quota, which we have so
far referred to as reservation. Clause 9 (4) or
Clause 9 (IV) as it stood prior to 5th April
2018 of the 2000 Regulations permit reservation
as per the applicable laws of the State or the
Union Territory. In the case of Dinesh Singh
Chauhan (supra), the three Judge Bench of this
Court opined that the reservation referred to
in the opening part of the said clause is akin
to reservation as per constitutional scheme and
204
does not embrace reservation for in-service
candidates. We have quoted paragraph 25.4 of
the report in which such view has been
expressed. We are in agreement with the opinion
expressed in the case of Dinesh Singh Chauhan
on this construction of Clause 9 (4) of the
2000 Regulations. In a series of judgments
including the cases of D.N. Chanchala vs. The
State of Mysore and Others [(1971) 2 SCC 293],
K. Duraiswami & Anr. vs. State of Tamil Nadu &
Ors. [(2001) 2 SCC 538], AIIMS Students Union
vs. AIIMS and Others [(2002) 1 SCC 428] as also
State of M.P.& Ors vs. Gopal D. Tirthani & Ors.
[(2003) 7 SCC 83], it has been held that
allocation of seats for in-service candidates
is only a separate or exclusive channel of
entry or source of admission and such entrypath cannot be equated with reservation
provisions incorporated as compensatory
205
discrimination. But classifying a category of
candidates for such distinct or separate
channel has been upheld consistently, provided
such categorisation is based on intelligible
differentia. In fact, on the question of such
entry channel being based on reasonable
classification, it has been held in the case of
Gopal D. Tirthani (supra):-
“21. To withstand the test of
reasonable classification within
the meaning of Article 14 of the
Constitution, it is well settled
that the classification must
satisfy the twin tests: (i) it
must be founded on an intelligible
differentia which distinguishes
persons or things placed in a
group from those left out or
placed not in the group, and (ii)
the differentia must have a
rational relation with the object
sought to be achieved. It is
permissible to use territories or
the nature of the objects or
occupations or the like as the
basis for classification. So long
as there is a nexus between the
basis of classification and the
object sought to be achieved, the
classification is valid. We have,
in the earlier part of the
206
judgment, noted the relevant
statistics as made available to us
by the learned Advocate-General
under instructions from Dr Ashok
Sharma, Director (Medical
Services), Madhya Pradesh, present
in the Court. The rural health
services (if it is an appropriate
expression) need to be
strengthened. 229 community health
centres (CHCs) and 169 firstreferral units (FRUs) need to be
manned by specialists and block
medical officers who must be
postgraduates. There is nothing
wrong in the State Government
setting apart a definite
percentage of educational seats at
postgraduation level consisting of
degree and diploma courses
exclusively for the in-service
candidates. To the extent of the
seats so set apart, there is a
separate and exclusive source of
entry or channel for admission. It
is not reservation. In-service
candidates, and the candidates not
in the service of the State
Government, are two classes based
on an intelligible differentia.
There is a laudable purpose sought
to be achieved. In-service
candidates, on attaining higher
academic achievements, would be
available to be posted in rural
areas by the State Government. It
is not that an in-service
candidate would leave the service
merely on account of having
secured a postgraduate degree or
diploma though secured by virtue
207
of being in the service of the
State Government. If there is any
misapprehension, the same is
allayed by the State Government
obtaining a bond from such
candidates as a condition
precedent to their taking
admission that after completing PG
degree/diploma course they would
serve the State Government for
another five years. Additionally,
a bank guarantee of rupees three
lakhs is required to be submitted
along with the bond. There is,
thus, clearly a perceptible
reasonable nexus between the
classification and the object
sought to be achieved.”
29. The same view stands consistently reflected
in a large body authorities, including the
cases of Dr.Snehalata Patnaik & Ors vs.
State of Orissa & Ors [(1992) 2 SCC 26], Pre PG
Medical Sangharsh Committee & Anr. vs. Dr.
Bajrang Soni & Ors. [(2001) 8 SCC 694], and the
case of AIIMS Students Union (supra). In the
case of Satyabrata Sahoo & Ors. vs State of
Orissa & Ors. [(2012) 8 SCC 203] also, there
were two entry channels, one for in-service
208
candidates and the other for open-category
candidates. Provisions for these two entry
paths were not under challenge in that case.
The constitutionality of institutional
preference in postgraduate courses in favour of
in-house candidates was found to be valid, on
the basis of reasonable classification in the
case of AIIMS (supra). The case of Yatin Kumar
Jasubhai Patel & Ors. (supra) also is based on
similar reasoning. In order to justify the
retention of such source of entry into
postgraduate medical degree courses, it was
argued on behalf of the State of Tamil Nadu and
State of West Bengal by Mr. Vaidyanathan and
Mr. Giri, for the former and Mr. Rakesh
Dwivedi, learned Senior Advocate for the latter
that such reservation was necessary for proper
functioning of the public health system as the
respective States have shortage of specialised
209
better qualified doctors to serve the remote
areas. This stand has been supported by Mr.
P.V. Surendranath, learned Senior Advocate
appearing for the West Bengal University of
Health Sciences. The same stand has been taken
by Mr. Jaideep Gupta, learned Senior Advocate
for the State of Kerala and Mr. Rahul Chitnis,
learned Advocate for the State of Maharashtra.
The theme of argument on behalf of the inservice doctors has been that they have to
discharge arduous duties serving a large number
of patients across the respective States and it
is always not possible for them to academically
update to meet the theoretical standards set by
the MCI for the entrance examination. Mr.
Sanjay Hegde and Mr. Vijay Hansaria, learned
Senior Advocates have appeared before us for
the petitioners in W.P. (C)No. 252 of 2018,
W.P.(C) No. 293 of 2018 and W.P.(C)No.295 of
210
2018. Learned Senior Advocates for these
petitioners as also the appellant in-service
doctors in the appeals arising out of the
judgment of the High Court of Calcutta have
sought to justify their defence on the same
grounds. On the aspect of legislative
competence, the rival arguments have already
been dealt with in our discussions earlier in
this judgment. We are satisfied that the
doctors in employment of the States and allied
sectors form a separate and distinct class and
for the purpose of admission in postgraduate
degree courses they can be given certain
elements of preference. Holding them to be a
distinct group fits in with overall objective
of having medical professionals with superior
qualification for tending to the needs of the
general public. Moreover, the 2000 Regulations
by permitting award of incentive marks to them
211
and also providing for 50 per cent reservation
in diploma courses indirectly recognise this
category of doctors as a separate class. But
do the provisions of 2000 Regulations permit
the States to provide quota for such in-service
candidates?
30. In the case of Modern Dental College
(supra), it has been explained the manner in
which Entry 66 of List I ought to be
interpreted while dealing with admission to
postgraduate medical admission course. It has
been held in this judgment that the said entry
in List I is having a very specific and limited
scope. It has also been held in the said
decision that while setting standards in
educational institutions for higher studies
would be in the exclusive domain of the Union,
that might not include conducting of
examination etc. Regulating medical education
212
would come within Entry 25 of the List III
giving concurrent powers to both Union as well
as States. In the case of Modern Dental College
(supra), the rules for admission into medical
postgraduate courses framed by the State
government were assailed.
31. Referring to the judgment of this Court in
the case of Preeti Srivastava (supra), the
Constitution Bench did not find any ground for
holding that the said judgment excluded the
role of States altogether from admissions.
32. Now, turning to the context in which we are
adjudicating the present set of proceedings, we
have to ascertain as to whether setting apart
specified percentage of seats for in-service
doctors in postgraduate medical degree courses
is referable to matters of admissions or
standards of education. It has been
acknowledged in the decision of Modern Dental
213
College (supra) that there may be certain
overlapping of subjects vis-à-vis Entry 66,
List I and Entry 25, List III to the Seventh
Schedule of the Constitution of India. In our
opinion, the question of providing a separate
entry-path to in-service doctors may have some
effect on overall standard of medical education
at the postgraduate degree level
institutions, as the students who would gain
admission to such courses may not come purely
on the basis of a uniform order of merit. But
that is not the manner in which we ought to
interpret the expression “standards” in
institutions of higher education. The
Constitution Bench judgment in the case of
Modern Dental College (supra) has construed the
words “coordination and determination of
standards” to mean laying down the standards of
education. Analysis of Clause 9 of the 2000
214
Regulations reveals that the said clause
provides a minimum entry standard in the form
of clearance of the NEET on obtaining minimum
of marks of 50 per cent by general category
candidates. Once these standards are laid down,
we are of the view that if the State
authorities provide an independent channel of
entry for in-service doctors in postgraduate
medical degree courses, who fulfil the
aforesaid minimum standards, as the latter
expression has been construed in the case of
Modern Dental College (supra), provisions to
that effect would not be in breach of the
constitutional scheme. The impact on the
“standards”, as the expression is to be
construed in Entry 66 of the first list, would
be far too distant from admission norms framed
by the State authorities for such in-service
doctors. The separate entry-channel for in-
215
service doctors would be integral to the
admission norms, relatable to the Entry 25 of
the Concurrent List. Such admission norms if
compatible with minimum standards laid down by
the MCI, would fall under the items specified
against the aforesaid entry of List III.
33. The question that arises next is whether
Clause 9 of the 2000 Regulations lay down the
procedure for admission in such a manner that
providing a separate entry channel for inservice doctors even through the State merit
list by an independent statutory instrument
would be contrary to the provisions of the 2000
Regulations or not. If that is the case, then
the respective State legislations and
Regulations would fall foul of Article 246 and
Article 254 of the Constitution of India. We
reproduce below the text of Articles 246 and
254 of the Constitution of India:-
216
“Article 246- Subject-matter
of laws made by Parliament
and by the Legislatures of
States.-
(1) Notwithstanding anything
in clauses (2) and (3),
Parliament has exclusive
power to make laws with
respect to any of the matters
enumerated in List I in the
Seventh Schedule (in this
Constitution referred to as
the “Union List”)
(2) Notwithstanding
anything in clause (3),
Parliament and, subject to
Clause (1), the legislature
of any State also, have power
to make laws with respect to
any of the matters enumerated
in List III in the Seventh
Schedule (in this
Constitution referred to as
the “Concurrent List”).
(3) Subject to Clauses
(1) and (2), the Legislature
of any State has exclusive
power to make laws for such
State or any part thereof
with respect to any of the
matters enumerated in List II
in the Seventh Schedule (in
this Constitution referred to
as the “State List”).
(4) Parliament has power
to make laws with respect to
217
any matter for any part of
the territory of India not
included [in a State]
notwithstanding that such
matter is a matter enumerated
in the State List.
Article 254-
Inconsistency between laws
made by Parliament and laws
made by the Legislatures of
States- (1) If any provision
of a law made by the
Legislature of a State is
repugnant to any provision of
a law made by Parliament
which Parliament is competent
to enact, or to any provision
of an existing law with
respect to one of the matters
enumerated in the Concurrent
List, then, subject to the
provisions of clause (2), the
law made by Parliament,
whether passed before or
after the law made by the
Legislature of such State,
or, as the case may be, the
existing law, shall prevail
and the law made by the
Legislature of the State
shall to the extent of the
repugnancy, be void.
(2) Where a law made by
the Legislature of a State
with respect to one of the
matters enumerated in the
Concurrent List contains any
218
provision repugnant to the
provisions of an earlier law
made by Parliament or an
existing law with respect to
that matter, then, the law so
made by the Legislature of
such State shall, if it has
been reserved for the
consideration of the
President and has received
his assent, prevail in that
State:
Provided that nothing in
this clause shall prevent
Parliament form enacting at
any time any law with respect
to the same matter including
a law adding to, amending,
varying or repealing the law
so made by the Legislature of
the State.”
34. It has been argued on behalf of the
Union of India by Mr. Aman Lekhi, learned
Additional Solicitor General of India
and by Mr. Vikas Singh, learned Senior Advocate
appearing for the MCI that the said Clause 9 is
a self-contained code and there is an implied
bar upon permitting a separate source of entry
for in-service doctors. Clause 9(4) of the 2000
219
Regulations makes provisions for reservation of
seats in postgraduate courses, not making any
distinction between degree and diploma courses.
In Clause 9(8) thereof, or in Clause 9(VII) in
its earlier form, reservation of 50 per cent
seats in diploma courses has been prescribed.
Main stand of the MCI is that the degree course
is a full-fledged three years course and
clinical subjects in such course is one of the
most sought after by the students. It is MCI’s
case that postgraduate degrees enable the
students to pursue super speciality courses
later on as well as become teachers in medical
institutes. The PG diploma course, on the
other hand, according to the MCI, is of greater
practical value for treating patients in remote
and difficult or rural areas of the country.
The MCI, according to Mr. Singh has sought to
strike a balance between competing interest of
220
in-service candidates and direct candidates as
also interest of the States in ensuring quality
medical treatment to remote areas, while not
compromising on merit. This stand has been
supported by Mr. Nidhesh Gupta, learned Senior
Advocate representing private respondents from
open- category appearing in the appeals arising
out of the judgment of the Calcutta High Court.
The disadvantages spelt out by the in-service
doctors is of being out of touch with academic
developments because of their pressing duties
often in remote locations. These disadvantages
were considered by this Court in the case of
AIIMS (supra), and it was recorded in that
judgment, in reference to the case of K.
Duraiswamy (supra) in paragraph 31 of the report:-
“Some of them had done graduation
sometime in the past and were
either picked up in the government
service or had sought for joining
government service because, may
221
be, they could not get a seat in
postgraduation and thereby
continue their studies because of
shortage of seats in higher level
of studies. On account of their
having remained occupied with
their service obligations, they
became detached or distanced from
theoretical studies and therefore
could not have done so well as to
effectively compete with fresh
medical graduates at the PG
entrance examination. Permitting
in-service candidates to do
postgraduation by opening a
separate channel for admittance
would enable their continuance in
government service after
postgraduation which would enrich
health services of the nation.
Candidates in open category having
qualified in postgraduation may
not necessarily feel attracted to
public services. Providing two
sources of entry at the
postgraduation level in a certain
proportion between in-service
candidates and other candidates
thus achieves the laudable object
of making available better doctors
both in public sector and as
private practitioners. The object
sought to be achieved is to
benefit two segments of the same
society by enriching both at the
end and not so much as to provide
protection and encouragement to
one at the entry level.”
222
35. According to Mr. Singh, these drawbacks
being faced by in-service doctors can be
overcome by awarding incentive marks
contemplated in proviso to sub-clause (4) of
Clause 9. Even if we proceed on the basis that
Clause 9 is a self-contained code, as held in
the case of Sudhir N. (supra), such
interpretation having been approved in the case
of Dinesh Singh Chauhan (supra), in our view a
self-contained code can cover only those
subjects which are contained in such code. This
is not an exhaustive code covering every
feature of admission to postgraduate degree
courses in medical education. If the code does
not refer to certain matters, which do not have
impact on or dilute the main subject for which
the code is made, appropriate authorities are
not enjoined from making provisions for such
uncovered areas. This we hold because the field
223
of legislation involved in the subject-dispute
is a shared field between the Union and the
States. The legislative disability of the
States would occur only when the Union
legislation covers the same subject on which
State undertakes legislative exercise and the
State legislative instrument is found to be
repugnant to the latter. There also can be
vacant legislative zones within a code, and
such vacant zones can be filled up by the
appropriate legislature. We have already
referred to the provisions contained in the
code pertaining to the admission process.
Clause 9(4)(or Clause 9(IV) in its earlier
form) of the 2000 Regulations further
stipulates that candidates shall be admitted to
post-graduate courses from the two merit lists
only, as referred to in the said clause. On
behalf of the writ petitioners who had
224
instituted proceedings in the High Court at
Calcutta, it was submitted that if a statute
requires a thing to be done in a particular
manner, it must be done in that manner or not
at all as held in Nazir Ahmed vs. King Emperor
AIR 1936 PC 253. Certain other authorities
reiterating the same dictum have been cited.
This principle, however, has become so wellestablished in our jurisprudence that we do not
consider it necessary to specifically refer to
those authorities in this judgment. But having
regard to Clause 9(4) of the 2000 Regulations,
we do not think provision for reservation of
in-service doctors by the State from the Statewise merit list published in pursuance of that
provision would result in deviation from a
mandatory statutory scheme. The aforesaid subclause is required to be construed in the light
of the State’s power to make provisions over
225
the admission norms, provided the candidates
fulfil the basic admission criteria contained
in the 2000 Regulations. Having regard to the
legal and factual context of this case and
considering the fact that the issue of
legislative competence arises in respect of an
entry belonging to shared, and not exclusive
field of legislations, in our opinion the said
sub-clause cannot be interpreted to mean that
the State is denuded of the power to make a
separate channel of admission to the said
courses for in-service doctors from the State
merit list. This is an issue of legislative
competence and the Nazir Ahmed dictum does not
come into conflict with the interpretation we
are giving to this clause. Application of that
principle solely on the basis of a Union
legislation, without examining the scope of the
State’s legislative power in the given context,
226
would be contrary to the constitutional scheme
in having concurrent field of legislation. The
said sub-clause does not prescribe specific bar
on the State authorities in providing for such
reservation or such separate entry-channel. The
principle of implied exclusion also would not
apply here in our opinion. The principle of
implied exclusion is derived from the latin
dictum “expressio unius est exclusio
alterius”. There are authorities, which caution
the Courts against indiscriminate application
of this doctrine, describing it to be a
“dangerous master” (Mary Angel and Ors. vs.
State of Tamil Nadu (1999) 5 SCC 209, State of
Karnataka vs. Union of India & Anr. (1977) 4
SCC 608, and Assistant Collector of Central
Excise vs. National Tobacco of India Ltd.
(1972) 2 SCC 560).
227
36. When a subject falls in a shared field
of legislation, there may be cases where the
dominant legislative body may not have had made
provisions in a legislative instrument for
which it had power to do so. But in such a
situation the dominant legislative body cannot
prevent the secondary legislative body from
making provisions in that regard. We would make
it clear here that we are using the terms
“dominant legislative body” to describe the
Union legislature and “secondary legislative
body” to refer to the State legislature in the
context of the concurrent list only. We are
doing so because in case of repugnancy between
two legislative instruments originating from
the Union and the State legislatures in
relation to any entry therein, the former is to
prevail as per the constitutional scheme.
Turning back to the aspect of occupied field,
228
if certain areas of legislative entry is left
void by the Union Legislature, these void areas
would come within the legislative power of the
secondary legislative body as the
constitutional entry gives both the legislative
bodies co-existing, power to legislate on such
subjects. Clause 9 of the 2000 Regulations is
no doubt a self-contained code. But as we have
already observed, it is not an exhaustive code
covering all aspects of admission in
postgraduate medical degree courses. The scope
of this code and extent of its operation has
been explained by this Court in the case of
Yatinkumar Jasubhai Patel & Ors. (supra).
Negation of power of the State cannot be a
matter of inference, or such negation cannot be
in anticipation that the Union Legislature may
make provisions in future in the vacant
legislative space. The authorities in support
229
of this proposition are West U.P. Sugar Mills
Association & Ors vs. State of Uttar Pradesh &
Ors. (2020 SCC Online SC 380), U.P. Cooperative
Cane Unions Federations vs. West U.P. Sugar
Mills Association & Ors. [(2004) 5 SCC 430],
S.R. Bommai & Ors. vs. Union of India & Ors.
[(1994) 3 SCC 1] and Tika Ramji & Ors.etc vs.
State of U.P.& Ors (AIR 1956 SC 676). Only in
cases where the State legislature makes a law
repugnant to any provision of law made by the
Parliament, the Parliamentary law would
prevail. We do not find the 2000 Regulations so
overwhelming in its scope and extent that we
can proceed on the presumption that the entire
field of admission to postgraduate medical
course stands covered by it. In the facts of
the given case, we do not think we can proceed
on the basis of there being implied repugnancy.
Such repugnancy has to be direct and positive.
230
37. Is there any vacant space for State to
prescribe a separate entry-channel for inservice doctors, having regard to the
admission process laid down in the 2000
Regulations? In the case of Modern Dental
College (supra), it has been observed,
referring to the earlier Entry 11 of List II,
that the States had exclusive power to
legislate with respect to all aspects of
education barring determination of standards
and coordination by the Parliament. In the
case of Preeti Srivastava (supra), legislative
competence of the State making admission rules
not inconsistent with the standards set down
by the Union Legislature has been
acknowledged. It has been observed in the
judgment of Modern Dental College (supra) that
except the determination of minimum standards
and coordination, State’s power in regulating
231
medical education was preserved. When the said
entry (i.e. Entry 11 of List II) was brought
to the Concurrent List by 42nd Amendment to the
Constitution of India, the form of State’s
power remained the same, provided of course
there was no repugnancy of a State statutory
instrument with any Union legislative
provisions covering the same subject.
38. We are of the opinion that the admission
process stipulating a distinct source of entry
for in-service candidates by itself would not
constitute breach of the provisions of Clause
9 of the 2000 Regulations, provided that the
minimum standards mandated by the said
Regulations for being eligible to pursue
postgraduate medical degree course are adhered
to. A separate source of entry for in-service
doctors through the State merit list in our
view would come within the legislative power
232
and competence of the State. We also take
note of the fact that reservation for inservice doctors has been a long standing
practise and the rationale behind such
reservation appears to be reasonable to us.
But we refrain from dilating on the necessity
of maintaining such practise as in this
judgment, we are primarily concerned with the
question of competence of State authorities in
making Rules providing for such reservation.
39. Clause 9(4) of the 2000 Regulations
stipulates entry into the postgraduate courses
from the two merit lists, one all India and
the other that of the State. The same was the
scheme of Clause 9(IV) in its erstwhile form.
The dispute in these proceedings, however, is
mainly on admission norms to postgraduate
degree courses. If the State authorities
provide reservation for in-service doctors
233
from within the State’s own merit list, our
view is that such an exercise would be
relatable to the admission process and the
same would not be in breach of any prohibition
flowing from the 2000 Regulations. This would
entail some form of variation of the merit
list of the State, but we do not find any
prohibition under the 2000 Regulations against
a State undertaking that exercise. Such step
undertaken by the State would be relatable to
the State’s legislative power derived from
Entry 25 of the Concurrent List and not
covered by the 2000 Regulations. We do not
find any repugnancy with the 2000 Regulations
if the State authorities create such a
distinct channel of entry.
40. In the case of Gopal D. Tirthani (supra),
there was reservation for in-service
candidates. This was found to be a separate
234
and exclusive channel of entry or source of
admission. As we have already observed, having
a separate entry-channel for in-service
candidates to postgraduate medical courses
has been a long standing practise. The Bench
of three Hon’ble Judges of this Court in the
case of Dinesh Singh Chauhan (supra) sought to
distinguish this factor on the ground that the
provisions of Clause 9, which was applicable
at that time the case of Gopal D. Tirthani
(supra) was decided, was different from its
form as it subsisted when the former case was
decided. But the relevant clause, as
reproduced in the judgment of Gopal D.
Tirthani (supra) did not contain any provision
for separate entry route for in-service
candidates. Paragraph 6 of the said judgment
[reported in 2003 (7) SCC 83] reproduces
235
Clause 9(1) as it prevailed then. We are
quoting below the said paragraph:-
“6. Regulation 9 of the
Regulations framed by the Medical
Council of India reads as
follows:-
“9. Selection of
postgraduate students-(1)
Students for postgraduate
medical courses shall be
selected strictly on the basis
of their academic merit.
For determining the academic
merit, the
university/institution may
adopt any one of the following
procedures both for degree and
diploma courses:
(i) on the basis of merit as
determined by a competitive test
conducted by the State Government
or by the competitive authority
appointed by the State Government
or by the university/group of
universities in the same State;
(ii) on the basis of merit as
determined by centralized test
held at the national level; or
(iii) on the basis of the
individual cumulative performance
at the first, second and third
MBBS examinations, if such
examinations have been passed
from the same university; or
(iv) combination of (i) and
(iii)
236
Provided that whatever
entrance test for postgraduate
admissions is held by a State
Government or a university or any
other authorized examining body,
the minimum percentage of marks
for eligibility for admission to
postgraduate medical course shall
be fifty per cent for all the
candidates:
Provided further that in nongovernmental institutions fifty
per cent of the total seats shall
be filled by the competent
authority and the remaining fifty
per cent by the management of the
institution on the basis of
merit.”
41. The selection criteria as contained in
Clause 9 of the 2000 Regulations, which was
considered by this Court in the case of Gopal
D. Tirthani (supra) and the content of Clause
9, which is the subject of dispute in the
present set of proceedings are no doubt not
identical. But the said clause which was
examined in the case of Gopal D. Tirthani
(supra) had a merit based approach.
Reservation of in-service candidates was made
237
through Executive Orders of the State
Government. We are not to undertake a word to
word comparison of Clause 9 as it prevailed at
different points of time. What matters here
is that in its original or earlier version, no
provision for reservation or separate entrychannel for in-service doctors has been shown
to us by any of the learned counsel
appearing for the parties. The State
Government Orders laid down such distinct
source of entry. Interpretation of the same
clause in its present form should also be
based on the same underlying reasoning.
42. Because of these reasons, we hold that
there is no bar in Clause 9 of the
Postgraduate Medical Education Regulations,
2000 as it prevailed on 15th February 2012 and
subsequently amended on 5th April, 2018 on
238
individual States in providing for reservation
of in-service doctors for admission into
postgraduate medical degree courses. But to
take benefit of such separate entry channel,
the aspiring in-service doctors must clear the
NEET Examination with the minimum prescribed
marks as stipulated in the 2000 Regulations.
We respectfully differ from the views
expressed by the Bench of three Hon’ble Judges
of this Court in the case of the State of
Uttar Pradesh & Ors. vs. Dinesh Singh Chauhan
[(2016) 9 SCC 749] to the extent it has been
held in the said decision that reservation for
the said category of in-service doctors by the
State would be contrary to the provisions of
2000 Regulations. In our opinion, that is not
the correct view under the Constitution. The
reference is answered accordingly.
239
43. We also expect that the statutory
instruments of the respective State
Governments providing for such separate
channel of entry should make a minimum service
in rural or remote or difficult areas for a
specified period mandatory before a candidate
could seek admission through such separate
channel and also subsequent to obtaining the
degree. On completion of the course, to
ensure the successful candidates serve in such
areas, the State shall formulate a policy of
making the in-service doctors who obtain entry
in postgraduate medical degree courses through
independent in-service channel execute bonds
for such sum the respective States may
consider fit and proper.
44. So far as the appeals against the judgment
of the Calcutta High Court are concerned, we
are of the opinion that the judgment and order
240
of the High Court at Calcutta in MAT No.1222
of 2019 (Dr. Md. Babul Akhtar and Ors. vs. Dr.
Md. Nazir Hossain & Ors.) along with the
allied appeals were not founded on proper
interpretation of law for the reasons we have
already discussed. We accordingly set aside
the judgment under appeal, delivered on 1st
October, 2019. All the appeals are
accordingly allowed. The memorandum dated 18th
April, 2013 is restored and the writ petition
filed in the High Court at Calcutta (W.P.
No.8990(W) of 2019) shall stand dismissed. The
writ petitions filed before this Court being W.P.
(Civil) No. 196 of 2018, W.P. (C) No.252 of 2018,
W.P.(C) No. 295 of 2018 and W.P.(C) No. 293 of
2018 shall stand allowed in the above terms.
45. We, however, direct that the doctors who
are already undergoing the postgraduate degree
courses on the basis of being successful in
241
the original writ petition filed in the High
Court at Calcutta shall not be disturbed from
pursuing the said course. The same direction
shall also cover successful medical students
who have already undertaken admission in
postgraduate medical degree courses following
the applicable admission process and are
pursuing their postgraduate studies in the
States of Gujarat, Haryana, Kerala,
Maharashtra and Tamil Nadu.
46. All connected applications shall stand
disposed of. Interim orders, if any shall stand
dissolved.
47. There shall be no order as to costs.
……………………………………J.
[ARUN MISHRA
……………………………………J.
[INDIRA BANERJEE]
242
……………………………………J.
[VINEET SARAN]
……………………………………J.
[M.R. SHAH]
……………………………………J.
[ANIRUDDHA BOSE]
NEW DELHI;
AUGUST 31, 2020.