- Constitution Bench : 5 bench
- Coram : Arun Mishra , Indira Banerjee, Vineet Saran, M.R. Shah, Anirudha Bose JJ.
State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC 749 [ 3 judge] decided that any reservation for inservice government doctors in PG degree courses is not available in the Regulations 9(IV) and 9(VII) of the Medical Council of India and hence the State Government order providing the reservation for PG degree courses for in-service government doctors is held to be illegal. T.N. Medical Officers Association v. Union of India (2018) 17 SCC 478 again deliberated on the same issue. But as both the benches are of coordinate strength, it was referred to a higher bench i.e. the present bench.
In a different instant, [ SLP (civil) no. 31395 of 2017 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.
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 the Court.
It is the case on behalf of those in-service Medical Officers working in the Government Colleges in the State of Gujarat that by the aforesaid vested rights in favour of those in-service 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.
Judgment of Arun Mishra:-
First we understand how Justice Arun Mishra writes judgements. He will identify issues but will not deal the issues one by one. He writes in a discursive manner and hence very difficult to make a summary. I will put on only important points.
- Issues before the court: –
- What is the scope and ambit of Entry 66 of List I?
- 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?
- 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 in-service candidates in the postgraduate degree/diploma courses?
- 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 in-service candidates seeking admission to postgraduate medical courses?
- Whether Regulation 9 of MCI Regulations, 2000 is understood to not allow for the States to provide for a separate source of entry for in-service 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?
- 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 in-service candidates seeking admission to postgraduate degree courses?
- 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 will be discussed first.
- In the case of Modern Dental College & Research Centre a Constitution Bench of this Court again had an occasion to deal with and consider Entry 66 List I and Entry 25 List III. The decisions of Supreme Court in the cases of Gujarat University ; R. Chitralekha , Preeti Srivastava ; and Bharati Vidyapeeth v. State of Maharashtra had held that 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 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.
- Thus, as held by the Constitution Bench of this Court in the case of Modern Dental College in which the 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 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.
- In the case of Yatinkumar Jasubhai Patel, 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 the Court in this case also. It was submitted on behalf of the writ petitioners that even the 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 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”.
- 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.
- 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 the Union and the State.
- 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 in-service 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.
- The court arrived at the following conclusions (after making some round about discussions)
- that Entry 66 List I is a specific entry having a very limited scope
- it deals with “coordination and determination of standards” in higher education
- the words “coordination and determination of standards would mean laying down the said standards
- 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 in-service candidates by the concerned States, in exercise of powers under Entry 25 List III
- 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
- 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
Judgement of Anirudha Bose
- 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 ( in-service doctors) within that State.
- 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).
- “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.
- Under the Medical Council of India 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 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 subject of controversy lies in sub clause 4 and 8. The two sub clauses are given below:
- Sub Clause : 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.”
- Sub Clause- 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.
- 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 of the 545 post-graduate diploma seats, 542 seats have been converted into seats for post-graduate degree courses. This has been done by an amendment made by MCI which says: “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.
- 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.
- 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 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 the 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.
- It may also be mentioned that as per provisio of sub clause 4 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, 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.
- Meanwhile in Dinesh Singh Chauhan case, the Court held that the state government has no power to amend the MCI regulations. Reservation is given for PG diploma courses and if the seats are converted to degree course, the reservation will not be applicable.
- 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 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 contradiction of Clause 9 which would cause grave prejudice to them. 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. [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.]
- The court discussed R. Chitralekha case. 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 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. 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 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 that : “State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law”.
- In the case of Modern Dental College a Constitution Bench held that exercise of any power under List III Entry 25 has to be subject to a Central law referable to Entry 25.
- The Constitution Bench in the case of Modern Dental College did not opine that there was plenary legislative power of the Union covering the entire field of admission in higher educational institutions. In the case of Dinesh Singh Chauhan 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 Preeti Srivastava, the court held that 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.
- 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 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 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 case of Modern Dental College 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 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 (s, the rules for admission into medical postgraduate courses framed by the State government were assailed.
- The present set of proceedings, have to be ascertained 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 College 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. 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.
- The Constitution Bench judgment in the case of Modern Dental College has construed the words “coordination and determination of standards” to mean laying down the standards of education. Analysis of Clause 9 of the 2000 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, 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.
- It is not important if MCI is a self contained code or not. Even if it is , 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.
- 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. [ 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]
- When a subject falls in a shared field of legislation, there may be cases where the dominant legislative body ( union legislature) 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 ( state legislature) from making provisions in that regard. 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.
- It has been observed in the judgment of Modern Dental College that except the determination of minimum standards and coordination, State’s power in regulating 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.
- 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 and competence of the State.