Doctors – under going PG & taken addmission as PG students should not disturbed

the doctors who

are already undergoing the postgraduate degree

courses on the basis of being successful in

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

  1. 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.
  2. 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;
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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
  8. 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.”
  9. 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.
  10. 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
  11. 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).
  12. 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.”
  13. 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.
  14. 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
  15. 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:
  16. What is the scope and ambit of Entry 66 of List I?
    77
  17. 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?
  18. 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?
  19. 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?
  20. 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?
  21. 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?
  22. 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.
  23. 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.
  24. 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.
  25. 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] .
  26. 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.”
  27. 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
  28. 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.
  29. 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
  30. 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.
  31. 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.
  32. 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
    87
    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
    88
    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.
  33. 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:
    90
    “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
    91
    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.
    92
    (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;
    95
    (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
  34. 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.
  35. 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.
  36. Now so far as the law for in­service candidates and the
    object and purpose to provide reservation and/or to make special
    101
    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
    102
    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.
    104
    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.
    105
  37. 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.
  38. 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
    106
    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
    107
    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.
  39. 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.
  40. 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
    110
    (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
  41. 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.
  42. 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.”
  43. 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.
  44. 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] .
  45. 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.
  46. 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:
  47. 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.
  48. 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.
  49. 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.
  50. 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
  51. 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.
  52. 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.
  53. 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
    129
    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
    130
    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.
  54. 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.
    131
  55. 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.
  56. 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.
  57. 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:
  58. 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
  59. 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.
  60. 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.
  61. 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.
  62. 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,
  63. 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 theNational 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 theNational
    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.]”
  64. 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.”
  65. 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,
  66. 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.
  67. 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.
  68. 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
  69. 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.
  70. 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
  71. 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

  72. 161
  73. The main proceeding giving rise to this
    reference is Writ Petition (Civil) No.196 of
  74. 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.”
  75. 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.
  76. 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.
  77. 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.”
  78. 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
  79. 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
  80. 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.
  81. 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.”
  82. 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
  83. 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.
  84. 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).
  85. In the above circumstances, we are
    of the view that these writ petitions
    require consideration by a larger
    Bench.
  86. 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.
  87. Accordingly, place the matters
    before the Hon’ble the Chief Justice of
    India for consideration by a larger
    Bench, emergently.”
  88. 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.”
  89. 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
  90. Coordination and determination of
    standards in institutions for higher
    education or research and scientific and
    technical institutions.
    List II
  91. 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
  92. 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.”
  93. 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
  94. 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.
  95. 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.
  96. 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.”
  97. 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.”
  98. 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.”
  99. On the aspect of laying down norms for
    admission, it was held in the case of Dr.
    Preeti Srivastava (supra):
  100. 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.”
  101. 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…..”
  102. 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.
  103. 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.
  104. 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.
  105. 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.
  106. 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.
  107. 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.”
  108. 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
  109. 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?
  110. 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.
  111. 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.
  112. 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.
  113. 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.”
  114. 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
  115. 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
  116. 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
  117. 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.
  118. 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.
  119. 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.
  120. 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.”
  121. 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.
  122. 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
  123. 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.
  124. 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.
  125. 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.
  126. All connected applications shall stand
    disposed of. Interim orders, if any shall stand
    dissolved.
  127. 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.