State of M.P. & ANR Vs. Kumari
Nivedita Jain & Ors [1981] INSC 169 (22 September 1981)
SEN, AMARENDRA NATH (J) SEN, AMARENDRA NATH
(J) CHANDRACHUD, Y.V. ((CJ) VARADARAJAN, A. (J)
CITATION: 1981 AIR 2045 1982 SCR (1) 759 1981
SCC (4) 296 1981 SCALE (3)1512
CITATOR INFO :
RF 1984 SC 873 (5) R 1988 SC1048 (14)
ACT:
Right of opportunity for admission to medical
colleges- Rules for Admission into the Medical, Dentistry and Ayurvedic
Colleges in Madhya Pradesh prescribing selection purely on merit from amongst
those who have qualified in the written examination-Reservation as seats for
scheduled Castes and Scheduled Tribes to the extent of 15% for each category
subject to a provision in Rule 9 to the effect that unfilled vacancies should
go to candidates available on the combined Merit List-State Government by an
executive order dated 9th September, 1980 completely relaxing the conditions
relating to the minimum qualification marks for selection to medical colleges
in favour of Scheduled Castes and Scheduled Tribes-Whether the executive order
offends Articles 14 and 15 of the Constitution and ordinance 54 of the
University of Jabalpur, Regulation 2 of the Medical Council of India read with
section 19 of the Indian Medical Council Act, 1956.
HEADNOTE:
In exercise of its executive power the State
Government of Madhya Pradesh made by its order dated 2nd April, 1980 the Rules
for admission into the Medical, Dentistal and Ayurvedic Colleges in Madhya
Pradesh. By and under Rule 7 the State Government has reserved 15% of seats for
each of the categories of Scheduled Castes and Scheduled Tribes candidates.
Rule 20 lays down that selection of candidates from amongst those who have
qualified in the examination shall be made strictly on merit as disclosed by
total number of marks obtained by candidates in the pre-medical examination.
Rule 20 further provides that minimum qualifying marks for admission to Medical
Colleges shall be 50% in the aggregate and 33% in each subject respectively;
but for Scheduled Castes and Scheduled Tribes
candidates the minimum qualifying marks shall be 40% in the aggregate and 30%
in each subject. Note (ii) below Rule 20 empowers the Government to grant in
case of candidate belonging to the categories of Scheduled Castes and Scheduled
Tribes special relaxation in the minimum qualifying marks to the extent
considered necessary in the event of the required number of candidates in these
two categories not being available. Rule 9 contains a provision to the effect
that in case seats reserved for categories of Scheduled Castes and Scheduled
Tribes remain vacant, these seats will be filled up by candidates available on
the combined merit list. The total number of seats in all the Medical Colleges
being 720 in number, 108 seats each for the Scheduled Castes and Scheduled
Tribes became reserved under Rule 7.
760 For admission to The Medical Colleges for
the academic year 1980-8., there were 9400 candidates in all of which 623
candidates were from Scheduled Castes and 145 candidates were from schedule
Tribe. On the result of the pre-medical examination only 18 seats in the
category of Schedule Casts and 2 seats in the Schedule Tribe could be filled up
because the other candidates of these categories did not secure the qualifying
marks prescribed by Rule 20. The selection Board in exercise of the power under
note (i) to Rule 20 made a relaxation of 5% in terms thereof and thereafter 7
more candidates in the category of Schedule Casts and one more in the category
of Schedule Tribes got admitted leaving a balance of 83 seats under Schedule
Casts quota, and 105 seats under the Schedule Tribes quota to be filled as
provided for under Rule 9. But the State Government, by its order dated 9th September
1980 removed the condition relating to minimum qualifying marks in favour of
the candidates from amongst Schedule Castes and Schedule Tribes.
The respondent belonging to the general
category who obtained the minimum qualifying marks but could not secure
admission as other candidates for the general seats had obtained marks higher
than she had obtained in the premedical examination for filling up the
vacancies available in the general category, would have been in a position to
secure admission to the Medical College but for the complete relaxation granted
by the impugned order without complying with the provisions of Rule 9. She,
therefore, filed a writ petition in the High Court on the grounds, inter alia,
(1) that the order of the Government contravenes Regulation II of the Medical
Council of India and would hit Section 19 of the Indian medical council Act
1956 exposing the Medical colleges to the risk of being derecognised:(2) that
the order of the Government will have the effect of allowing less qualified and
less deserving candidates to fill up the seats and would, therefore, destroy
equality and violate Articles 14 and 15 of the Constitution ; and (3) the order
was violative of Ordinance 94 of the University of Jabal pur. The High Court
accepted the contentions of the writ petitioner and allowed the petition. Hence
the appeal by the State, after obtaining special leave.
Allowing the appeals, the Court,
HELD: 1. The executive order dated 9th
September, 1980 passed by the State cf Madhya Pradesh completely relaxing the
conditions relating to the minimum qualifying marks for selection of students
to Medical Colleges of the State in respect of candidates belonging to Schedule
Castes and Scheduled Tribes is not violative of either Article 14, 15(1) or
15(2) or 15 (4). [785 G, 788 C]
2. The relaxation does not offend Article 14
of the Constitution. There is no relaxation of the condition regarding
eligibility for and admission into Medical Colleges. The relaxation is only in
the rule regarding selection of candidates belonging to Scheduled Castes and
Scheduled Tribes who were otherwise qualified and eligible to seek admission
into Medical Colleges only in relation to seats reserved for them. Further the
validity of the reservation of seats for candidates belonging to Schedule
Castes and Scheduled Tribes have not been challenged and very properly in view
of Article 15 (4) of the Constitution.
[786 E-G]
3. The relaxation cannot be said to be
unreasonable and does not violate Articles 15(1), (2) and (4) of the
Constitution. The State must do everything 761 possible for the upliftment of
the Schedule Castes and Scheduled Tribes and other backward communities and it
is entitled to make reservations for them in the matter of admission to medical
and other technical institutions. In the absence of any law to the contrary, it
must also been open to the Government to impose such conditions as would make
the reservation effective and would benefit the candidates belonging to these
categories for whose benefit and welfare the reservations have been made. In
any particular situation taking into consideration the realities and
circumstances prevailing in the State it will be open to the State to vary and
modify the condition; regarding, selection for admission if such modification
or variation becomes necessary for achieving the purpose for which reservation
has been made and if there be no law to the contrary. Note (ii) of rule 20 of
the Rules for admission framed by the State Government specifically empowers
the Government to grant such relaxation in the minimum qualifying marks to the
extent considered necessary. The order can be supported under Article 15(4) of
the Constitution. [785 H, 786 A-D] State of Kerala and Anr. v. N.M. Thomas,
[1976] 1 SCR 906; Jagdish Saran and Ors. v. Union of India and ors., [1980] 2
SCR 831, followed.
Amalendu Kumar v. State of Bihar, AIR 1980
Patna 1 overruled.
4. Under Article 162 of the Constitution the
executive power of a State, extends to the matter with regard to which the Legislature
of a State has power to make laws. As there is no legislation covering the
field of selection of candidates for admission to Medical Colleges, the State
Government would, undoubtedly, be competent to pass executive orders in this
regard. [785 D.E] State of Andhra Pradesh and Ors. v. Lavu Narendranath and
Ors. etc. etc., [1971] 3 SCR 699, reiterated.
5:1. Regulation II of the Indian Medical
Council is merely directory and in the nature of a recommendation and,
therefore has no such statutory force as to render the executive order dated
9th September, 1980 which contravenes the said Regulation illegal, invalid and
unconstitutional.
[785 B-Cl Entry 66 in List I (Union List) of
the Seventh Schedule to the Constitution relates to "co-ordination and
determination of standard in institutions for higher education or research and
scientific and technical institutions". This entry by itself does not have
any bearing on the question of selection of candidates to the Medical Colleges
from amongst candidates who are eligible for such admission. On the other hand,
entry 25 in List II (Concurrent List) of the same Schedule speaks of
"education, including technical education, medical education in
Universities, subject to entries 63, 64, 65 and 66 of List I.. vocational and
technical training of labour". This entry is wide enough to include within
its ambit the question of selection of candidates to Medical Colleges and there
is nothing in the entries 63, 64 and 65 of List I to suggest to the contrary.
[784 G.H, 785 A-C] 5:2. Regulation I of the Medical Council prescribes the
requisites which have to be satisfied to enable every student to become
eligible or qualified to seek admission and the process of selection comes
thereafter. As this Regulation is 762 within the competence of the Council the
Council, has framed this Regulation in a manner which leaves no doubt that this
Regulation is mandatory. [783 B-C] 5:3. Regulation II of the, Council is merely
in the nature of a recommendation. Regulation II begins with the words
"selection of students in medical college should be based solely on
merit". Language used in Regulation II is deliberate and is intended to
indicate the intention of the Council that it is only in the nature of a
recommendation.
By way of solution to the problem of dearth
of seats, the Council appears to have thought it fit to suggest the procedure
which will have the effect of selecting such candidates on the basis of merit
only. The procedure suggested is intended to do away with nepotism and favoritism
and any unfair practice in the matter of such admission, as the procedure
recommends merit to be the criterion. Regulation II recommending the process of
selection is outside the authority of the Council under section 33 of the Act
and the Council has advisedly and deliberately used such language in Regulation
II as makes the position clear and places the matter beyond any doubt.
Further, apart from reservations of seats for
Scheduled Castes and Scheduled Tribes and other reservations, reservation of seats
is commonly made for being filled up by nomination. In the instant case, it
appears that seats not exceeding three per cent are reserved for the nominees
of the Government of India apart from the other reservations.
These nominees of the Central Government do
not have to sit for any premedical examination to qualify themselves for
selection to the Medical Colleges, They must of course be eligible for
admission in the sense that they must have the necessary qualification for
admission in accordance with Regulation I. The candidates eligible under
Regulation I are selected by virtue of nomination and there is no question of
any pre-medical test for such candidates nominated by the Central Government.
If Regulation II could be considered to be mandatory, there could be no such
nomination of candidates by the Central Government. [783 G-H, 784A-C, E-G] 6:1.
An analysis of the various sections of the Indian Medical Council Act, 1956
indicates that the main purpose of the Act is to establish Medical Council of
India, to provide for its constitution. composition and functions and the main
function of the Council is to maintain the medical register of India and to
maintain a proper standard of medical education and medical ethics and
professional conduct for medical practitioners. The scheme of the Act appears
to be that the Medical Council of India is to be set up in the manner provided
in the Act and the Medical Council will maintain a proper medical register,
will prescribe minimum standards of medical education required for granting
recognised medical qualifications, will also prescribe standards of
post-graduate medical education and will further regulate the standard of
professional conduct and etiquette and code of ethics for medical
practitioners. The Act further envisages that if it appears to the Council that
the courses of study and examination to be undergone in, or the proficiency
required from candidates at any examination held by any University or Medical
Institution do not conform to the standard prescribed by the Council or that
the staff, equipment, accommodation training and other facilities for
instructions and training provided in such University or medical institution or
in any college or other institutions affiliated to that University do not
conform to the standards prescribed by the Council, the Council will make a
representation to that effect to the Central Government and 763 on
consideration of the representation made by the Council, the Central Government
may take action in terms of the provisions contained in section 19 of the Act.
[776 G-H, 777 A-C] The Act also empowers the
Council to take various measures to enable the Council to judge whether proper
medical standard is being maintained in any particular institution or not. [777
C-D] 6:2. The authority of the Council extends to the sphere of maintaining
proper medical standard in Medical Colleges or institutions necessary for
obtaining recognized medical qualifications. By virtue of this authority it may
be open to the Council to lay down the minimum educational qualifications
required of a student who may seek admission into a Medical College. In other
words, the eligibility of a candidate who may seek to get admitted into a
medical (' college for obtaining recognized medical qualifications may be
prescribed by the Council. All the candidates who are eligible for admission
into Medical Colleges or institutions for getting themselves qualified as
medical practitioners are entitled to seek admission into a Medical College or
institution. As to how the selection has to be made out of the eligible
candidates for admission into the Medical College is a matter which has
necessarily to depend on circumstances and conditions prevailing in particular
States. Though the question of eligibility for admission into the medical
curriculum may come within the power and jurisdiction of the Council, the
question of selection of candidates out of the candidates eligible to the
medical course does not appear to come within The purview of the Council. [777
E-H, 778 A] 6:3. The process of selection of candidates for admission to a
Medical College out of the candidates eligible for admission for filling up the
limited vacancies has no real bearing on the question of eligibility or
qualification for admission or on the standard of medical education. The
standard of medical education really comes into the picture in the course of
studies in the medical colleges or institutions after the selection and
admission of candidates into Medical Colleges and institutions.
Students who satisfy the requirements of
Regulation I become qualified or eligible to seek admission into the Medical
Course. Regulation I prescribes the requisites which have to be satisfied to
enable every student to become eligible or qualified to seek admission and the
process of selection comes thereafter. [778 C-E] Undoubtedly, under section 33
of the Act, The Council is empowered to make regulations with the previous
sanction of-the Central Government generally to carry out the purposes of the
Act and such regulations may also provide for any of the matters mentioned in
section 33 of the Act.
[778 E-F] G State of Kerala v. Kumari T. P.
Roshana and Ors [1979] 2 SCR 974: Arti Sapru v. State of Jammu and Kashmir and
Ors [1980] 3 SCR 34, explained and distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 554-555 of 1981.
764 From the judgment and order dated the 6th
November, 1980 of the High Court of Madhya Pradesh at Jabalpur in Misc.
Petition No. 510 and 613 1980.
N.M. Phadke, A M. Mathur, Advocate Genl.
M.P., S.K Gambhir and Vijay Hansarra for the Appellants.
S.N. Kackar, Vineet Kumar, Gulab Gupta, Naresh
K. Sharma, S.Q. Hasan, P.N. Puri, E.M.S. Anam and M.K Dua for the respondents.
B.R. Agarwala for the Medical Council.
S.K Mehta, P.N. Puri and M.K. Dua for the
interveners.
The Judgment of the Court was delivered by
AMARENDRA NATH SEN, J. The validity of the executive order dated 9th September,
1980 passed by the State Government completely relaxing the conditions relating
to the minimum qualifying marks for selection of students to Medical Colleges
of the State in respect of candidates belonging to Scheduled Castes and
Scheduled Tribes categories forms the subject matter of these appeals by
Special Leave.
The facts material for the purposes of these
appeals may be stated:
Kumari Nivedita Jain, one of the Respondents
in the present appeals, was a candidate for admission to a Medical College in
the State of Madhya Pradesh. In the State of Madhya Pradesh there are six
Medical Colleges affiliated to different Universities in the State. The total
number of seats in all these Colleges is 720. By an order dated 2nd April, 1980
the State Government made rules for admission to Medical Colleges, the College
of Dentistry Indore and Government Ayurvedic Colleges of the State and the said
Rules are called "Rules for Admission into the Medical, Dentistry and Ayurvedic
Colleges in Madhya Pradesh" (hereinafter referred to as the Rules). These
Rules were made in exercise of the executive power of the State and these Rules
are not statutory. By and under Rule 7 of the Rules, the State Government has
reserved 15% seats for each of the categories of the Scheduled Castes and
Scheduled Tribes candidates. That means, out of 720 seats, 108 seats are
reserved for the Scheduled Castes candidates; and the same number, that is, 108
seats are also reserved for the candidates belonging to 765 the category of
Scheduled Tribes. By and under the same Rules, 15% seats are reserved for women
candidates and seats not exceeding 3% are reserved for the children of military
personnel. Under Rule 8, some further reservations have been made and under
this Rule, seats not exceeding 3% are reserved for the nominees of the
Government of India and 3 seats are reserved for the candidates nominated by
the Government of Jammu and Kashmir Rule 1 (iii) provides that a Pre-Medical
Examination shall be held every year for selection of candidates for admission
to the Medical Colleges and all admissions shall be made only from the merit
list prepared on the basis of the result of this examination except in case of
seats placed at the disposal of the Government of India and other States. Rule
15 mentions the subjects of the Pre-Medical Examination and C rule 20 lays down
that selection of candidates from amongst those who have qualified in the
examination shall be made strictly on merit as disclosed by total number of
marks obtained by candidates in the Pre-Medical Examination. Rule 20 further
provides that minimum qualifying marks for admission to Medical Colleges shall
be 50% in the aggregate and 33% in each subject separately: but for Scheduled
Castes and Scheduled Tribes candidates, the minimum qualifying marks shall be
40% in the aggregate and 30% in each subject.
Rule 20 in its note (ii) empowers the
Government to grant in case of candidates belonging to the categories of
Scheduled Castes and Scheduled Tribes special relaxation in the minimum
qualifying marks to the extent considered necessary in the event of the
required number of candidates in these two categories not being available. For
the total number of 720 seats in the Medical Colleges of the State, there were
9400 candidates in all. Of the 9400 candidates, there were 623 candidates
belonging to the category of Scheduled Castes for whom 108 seats were reserved;
and for the 108 seats reserved for candidates of the Scheduled Tribes Category,
there were 145 candidates belonging to that category. On the result of the
Pre-Medical Examination only 18 seats in the category of the Scheduled Castes
and 2 seats in the category of Scheduled Tribes could be filled up, because the
other candidates of these categories did not secure qualifying marks prescribed
by rule 20. As 90 seats had remained vacant in the category reserved for
Scheduled Castes after selection of the 18 candidates and 106 seats remained
unfilled in the category of seats reserved for Scheduled Tribes after selection
of the two candidates on the result of the examination, the Board in exercise
of the power under Note (i) to Rule 20 made a relaxation of 5% in terms thereof
and thereafter 7 more candidates in the category 766 gory of Scheduled Castes
and one more in the category of Scheduled Tribes got admitted. Thus oat of 108
seats reserved for each category of the Scheduled Castes and Scheduled Tribes,
only 25 seats could be filled in the category of Scheduled Castes and three in
the category of Scheduled Tribes. As only a very few candidates of these two
categories could get admitted into Medical Colleges and a large number of seats
reserved for them could not be filled up by the candidates of these two
categories on the basis of the result of the examination even after relaxation
had been made in terms of the provisions contained in Note (i) to Rule 20, the
State Government passed an order on the 9th September, 1980 completely relaxing
the conditions relating to the minimum qualifying marks for these two
categories.
the order dated 9th September, 1980, the
validity of which has been questioned in the Writ Petitions filed by Nivedita
Jain in the High Court, is to the following effect:- "The Government has
taken a decision that the candidates belonging to the Scheduled Castes and
Scheduled Tribes be admitted to the Medical Colleges in the seats reserved for
them in accordance with the merit to be deter mined on the basis of the marks
obtained by them in the Pre-Medical Examination and that for this purpose, the
condition relating to the obtaining of minimum qualifying marks be
removed".
Kumari Nivedita Jain, as we have earlier
noticed, was a candidate for admission into a Medical College in the general
seats, that is, the seats which have not been otherwise reserved. Though she
had obtained necessary qualifying marks, she could not secure her admission, as
other candidates for the general seats had obtained marks higher than she had
obtained in the Pre-Medical Examination, for filling up the vacancies available
in the general category. It may be noted that rule 9 contains a provision to
the effect that in case seats of reserved categories of Scheduled Castes and
Scheduled Tribes remain vacant, these seats will be filled up by the candidates
available on the combined merit list. If the seats in the reserved categories
had been thrown open to candidates in the general category on account of the
failure on the part of the candidates belonging to the categories of Scheduled
Castes and Scheduled Tribes to obtain minimum qualifying marks, Nivedita Jain
would have been in a position to secure her admission to the medical college.
As the State Government by its order dated 9th September, 1980 decided to relax
completely the conditions relating 767 to minimum qualifying marks for these
two categories of Scheduled Castes and Scheduled Tribes candidates instead of
filling up these seats by candidates available on the combined merit list, she
was deprived of the opportunity of getting her ad mission into the medical
college. She, therefore, filed this writ petition in the High Court of Madhya
Pradesh challenging the validity of the said order of the State Government
dated 9th September, 1980. It will be noticed that this order of the State
Government is also an executive order.
The principal grounds on which the validity
of the order has been challenged by Nivedita Jain, the respondent herein and
the petitioner in the writ petition before the High Court, are-(1) that the
order of the Government contravenes Regulation II of the Medical Council of
India and would hit S. 19 of the Indian Medical Council Act, 1956, exposing the
medical colleges to the risk of being derecognised; and (2) that the order of
the Government will have the effect of allowing less qualified and less
deserving candidates to fill up the seats and would, therefore, destroy
equality and violate Arts. 14 and 15 of the Constitution.
It appears from the judgment of the High
Court that another ground, namely, that the order dated 9th September, 1980 was
violative of ordinance 94 of the University of Jabalpur, was also urged before
the High Court, though this ground does not appear to have been taken in the
petition.
The High Court accepted the contention of the
writ petitioner that the order in question violated Regulations of the Council
holding that "the executive power of the State under Art. 162 cannot be so
exercised as to over-ride the statutory provisions, more so when the said
provision is in a field occupied by the Union List. The executive power can be
used to supplement a law but not to supplant it" The High Court further
held that "the total relaxation of minimum marks for the candidates
belonging to these categories cannot be supported under Art. ] S(4) being
violative of the Regulations which have the force of law." Dealing with
the contentions of violation of ordinance 54 of the University of Jabalpur, the
High Court observed:
"As the ordinance has to be read
alongwith the regulations and can be given effect to only in so far it is
consistent with the regulations, it cannot constitute a new 768 ground for
invalidating the impugned order, We would, however, like to emphasis again that
when a common entrance test for selection of candidates is held by the
Government for all the medical colleges, it is very necessary that the
Universities must prescribe identical conditions for admission consistent with
the Regulations made by the Medical Council to avoid any confusion in the
matter of admission." In the result, the High Court allowed the writ
petition and struck down the order of the State Government dated 9th September,
1980.
In this appeal by special leave, the State of
Madhya Pradesh and the Controller of Examinations of pre-medical test have
challenged the correctness of the decision of the High Court.
Before we proceed to consider the various
arguments advanced on behalf of the parties, we may here note that in the writ
petition filed by Nivedita Jain, she also challenged the validity of the
reservation made by the State Government of 3% of the seats for the children
and grand children of freedom-fighters by another order passed by the State
Government on the 19th September, 1980. The validity of this order was, however,
upheld by the High Court. The matter rests there and in this appeal we are not
concerned with this aspect of the matter.
Mr. Phadke, learned counsel appearing on
behalf of the appellants, has submitted that the High Court struck down the
order in question mainly on the ground that the order is violative of the
Regulation II of the Council. He has argued that the validity of the
reservations for the members of the Scheduled Castes and Scheduled Tribes has
not been questioned. It is his argument that the seats are reserved for those
communities in the interest of weaker sections of the society and the State
under Art. 15(4) of the Constitution is competent to do everything possible for
the upliftment of the Scheduled Castes and Scheduled Tribes and other backward
communities and the State is entitled to make necessary reservations of seats
in the matter of their admission to medical colleges. He submits that it must
be open to the State to lay down such conditions as will make such reservations
effective and will enable the candidates belonging to the categories of
Scheduled Castes and Scheduled Tribes to get the benefits of such reservations,
769 in discharge of the duties and obligation of the State, to the members of
those communities and other backward communities. It is his submission that in
the instant case when the State found that the qualifying conditions laid down
for the admission of the candidates belonging to those communities had in
reality resulted in denial of the opportunities sought to be given to them, the
Government considered it expedient to relax the conditions to enable the
candidates of those communities to get the admission to medical colleges for
prosecuting their studies to become qualified medical practitioners. Mr. Phadke
has contended that the provisions contained in Regulation II for violation of
which the order in question has been struck down, are directory in nature and
they are not mandatory in character, and, as such, they do not have any binding
effect; and it is open to the State to make Rules which may not be in accord
with the provisions contained in the said regulation for admission to the
medical colleges. Mr. Phadke has taken us to the various provisions of the
Indian Medical Council Act (hereinafter referred to as the Act) and also to the
Regulations framed by the Council. Mr. Phadke submits that the scheme of the
Act clearly suggests that the Council is essentially concerned with the
standard of medical education in the country and that stage only arrives after
the students have been admitted into Medical Colleges. Mr. Phadke has drawn our
attention particularly to Sections 19 and 19A of the Act and he has commented
that under S. 33 of the Act, the Council with the previous sanction of the
Central Government can frame Regulations for carrying out the purpose of the
Act. He has submitted that the selection of candidates for admission to Medical
Colleges cannot be said to constitute any purpose for which the Act has been
enacted, as selection of students has no bearing on the standard of medical
education and the Council is not competent to frame Regulations for admission
to Medical Colleges. Mr. Phadke in this connection has referred to the decision
of this Court in the case of Arti Sapru v. State of Jammu and Kashmir and
Ors.(1) and has relied on the following observations of the Court at p. 44:
"Objection to the objective test and the
viva voce examination is based on the ground that they fall outside . the
scheme envisaged by the Regulations made by the Indian Medical Council for
admission to the M.B.B.S, Course. The respondents, however, question the
validity H 770 of the Regulations. We are then referred by the petitioner to
clauses (i) and (I) of S. 33, Indian Medical Council Act, 1956, in support of
the contention that the power of the Council to make regulations extends to
making regulations prescribing the examinations and tests for admission. It
seems to us prima facie that those provisions do not authorise the Council to
do so. But we refrain from expressing any final opinion in the matter as the
Council is not a party before us.
Mr. Phadke has argued that item 66 in List I
of the Seventh Schedule to the Constitution does not stand in the way of the
State Government to frame rules for admission to Medical Colleges in view of
item 25 included in List III of the said Schedule. It is the argument of Mr.
Phadke that item 66 in List I which provides for "co-ordination and
determination of standards in institutions for higher education or research and
scientific and technical institutions", is not intended to deal with the
question of selection of candidates and item 25 in List III which provides for
"education including technical education, medical education in
universities subject to provisions of entries 63, 64, 65 and 66 of List I;
vocational and technical training of labour", is broad enough to include
all matters relating to education subject to the provisions of entries 63, 64,
65 and 66 of List I and empowers the State to frame rules relating to selection
of candidates for admission. Mr. Phadke has submitted that the Council must
have been aware of the limitations of its power in the matter of selection of
candidates for admission; and, the Council has, therefore, made only a
recommendation in this regard and has not made any mandatory provision about
it. In this connection Mr. Phadke has referred to the language used in Regulation
II and has contrasted the same with the language used in Regulation I of the
Regulations. Mr. Phadke submits that as Regulation II is only in the nature of
a recommendation and directory, any rules framed by the State Government
regarding selection of candidates in contravention of the said recommendation
cannot be held to be invalid and illegal and cannot be struck down on that
ground. Mr. Phadke has also argued that there is no question of violation of
Art. 15(1) and (2) of the Constitution. It is his argument that in view of the
provisions in Art. 15(4) of Constitution, the State Government is competent to
make special provisions for the advancement of socially and educationally
backward classes or for the Scheduled Castes and Scheduled Tribes. Mr. Phadke
in this connection has 771 referred to the case of Jagdish Saran and Ors. v.
Union of India and Ors.(1). Mr. Phadke has commented that the view expressed by
the High Court that the order which violates the statutory regulation of the
Council must be held to be violative of Art. 15(1) and (2) and not protected by
Art.
15(4) must necessarily be held to be
erroneous, as Regulation II is not mandatory and has no binding effect.
Regarding violation of ordinance 54 of
Jabalpur University, Mr. Phadke submits that no such ground has been taken in
the - l petition and further the affidavit filed on behalf of the university
shows that the ordinance has not become effective.
Mr. Kacker, Learned Counsel appearing on
behalf of the Respondent Nivedita Jain, the petitioner in the writ petition,
his argued that Regulation II of the Medical Council is mandatory with
statutory force. He has submitted that the Indian Medical Council bas been
established by the Parliament, inter alia, for the maintenance of Medical Register
for India and the matters relating therewith. He further submits that under s.
33 of the Act the Council with the previous sanction of the Central Government
has been authorised to make regulations generally to carry out the purposes of
the Act, and without prejudice to the generality of this power, the regulation
made by the council may provide for matters specifically mentioned in the said
section including any matter for which under the Act provision may be made by
regulations, as provided in sub- section (u) of Section 33. It is the argument
of Mr. Kacker that Regulation II of the Council which relates to selection of
candidates has been made for carrying out the purposes of the Act and selection
of the right type of students for maintaining proper standard of medical
education comes clearly within the purview and jurisdiction of the Council.
Mr. Kacker has placed us various sections of
the Act in support of his submission that regulating selection of students for
admission to medical colleges justly comes within the jurisdiction and function
of the Council. In this connection, Mr. Kacker has also referred to the
decision of this Court in the case of State of Kerala v. Kumari T.P. Roshana
and Anr. (1) and he has relied on the following observations at p. 984:-
"The Indian Medical Council Act, 1956 has constituted the Medical Council
of India as an expert body to control 772 the minimum standards of medical
education and to regulate their observance. Obviously, this high-powered
Council has power to prescribe the minimum standards of medical education. It
has implicit power to supervise the qualifications or eligibility standards for
admission into medical institutions. Thus there is an overall invigilation by
the Medical Council to prevent sub-standard entrance qualifications for medical
courses".
Mr. Kacker submits that in the instant case
there is no dispute that the order of the Government dated 9th September 1980
in question clearly contravenes Regulation II of the Council. Mr. Kacker has
also drawn our attention to entry 66 of the Union List which has been set out
earlier Mr. Kacker has contended that the State Government by an executive
order cannot over-ride Regulation II of the Council which has statutory force
of a Parliamentary Legislation, particularly, when the said provisions are in a
field occupied by the Union List. Mr. Kacker has next contended that complete
relaxation of the conditions in relation to qualifying marks for admission into
Medical Colleges in case of Scheduled Castes and Scheduled Tribes candidates
purported to have been made by the State Government by the impugned order dated
9th September, 1980 must also be held to be unconstitutional as the said order
is clearly violative of Art. 15 (1) and (2) of the Constitution and cannot be
said to be protected by Art. 15 (4). In support of this submission Mr. Kacker
has relied on the decision of the Full Bench of the Patna High Court in the
case of Amalendu Kumar v. State of Bihar. (1) In this case the Patna High Court
held that where the State Government reduces the percentage of marks, marks
prescribed for the Scheduled Castes and Scheduled Tribes for passing
competitive examination held for the purpose of admission to medical college,
by executive fiat, first from 45% to 40% and subsequenty to 35% on the ground
that seats reserved for the Scheduled Castes and Tribes would remain unfilled,
both reductions were invalid as violative of guarantee given under Art. 15 (1).
Mr. Kacker has finally submitted that the
order in question is also liable to be struck down as the order is violative of
ordinance 54 of University of Jabalpur.
773 In concluding Mr. Kacker has appealed to
this Court that irrespective of the result of this appeal, the respondent
Nivedita Jain who has already been admitted into a College on the basis of
interim order passed by this Court in this appeal for prosecuting her studies
in the Medical College, should be allowed to continue her studies and the fate
of this appeal should not interfere with her studies and with her career.
As we have earlier noticed, the order in
question has been struck down by the High Court essentially on the ground that
the order which is an executive order violates Regulation II of the Council
which has the force of a Statute. It is not in dispute and it cannot be
disputed that the order m question is in conflict with the provisions contained
in Regulation II of the Council. The main question that falls for determination
is whether the order in question which contravenes Regulation II is liable to
be struck down on the ground that the State Government by an executive order is
purporting to override Regulation II of the Council. For a proper determination
of the question it is necessary to understand the true nature of the said
Regulation II and to consider whether the said Regulation is of mandatory
character with statutory force. The contention of the appellants, as we have
earlier noticed, is that Regulation II is only in the nature of a
recommendation and is directory and has no statutory force; and the contention
of the Respondent Nivedita Jain, on the other hand, has been that the said
Regulation is mandatory in character with statutory force. For a proper
appreciation of these rival contentions, it becomes necessary to analyze and
understand the scheme of the Act and the Regulations framed thereunder.
The Act was enacted "to provide for
reconstitution of the Medical Council of India and the maintenance of Medical
Register for India and for matters connected therewith". S.
2 deals with definitions and defines
"Regulation" in sub- sec. (i) to mean "a Regulation under s.
33". Ss. 3 to 10 of the Act are not of any material consequence and these
sections deal with composition of the Council and its functions. S. 11, 12, 13
and 14 which deal with the question of recognition of medical qualifications by
the Council are also not very relevant for our present purpose. S. 15 which
deals with question of a person possessing qualifications for enrollment on any
State Medical Register, is also not very material. S. 16 provides that every
University or Medical Institution in India which grants a recognised medical
qualification shall furnish such information as the Council may from time to
774 time require, as to the courses of study and examination to be undergone in
order to obtain such qualification, as to the ages at which courses of study
and examination are required to be undergone and such qualification is
conferred and generally as to the requisites for obtaining such qualifications
granted by the University or Medical Institution. S. 17 confers a right of
inspection of Medical Institution, College, Hospital or other institutions
where medical education is given and also to attend any examination held by any
University or Medical Institution for the purpose of recommending to the
Central Government recognition of medical qualifications granted by that
University or medical institution. S. 18 confers a further right of appointing visitors
for inspection of any medical institution, College, Hospital or other
institutions where medical education is given and for attending any examination
held by any University or Medical Institution for the purpose of granting
recognised medical qualifications. S. 19 empowers the committee to make a
representation to the Central Government for withdrawal of the recognition, if
it appears to the Council on a report by the Committee or the Visitor that the
Courses of study and examination to be undergone in, or the proficiency
required from candidates at any examination held by any University or medical
institution do not conform to the standards prescribed by the Council or that
the staff, equipment, accommodation, training and other facilities for instructions
and training provided in such University or Medical Institution or in any
College or other institution affiliated to that University do not conform to
the standards prescribed by the Council.
The said Section 19 further provides that in
the event of any representation being made to the Central Government by the
Council, the Central Government will forward the same to the Government of the
State in which the University or medical institution is situated and the State
Government shall forward it along with such remarks as it may make to the
University or Medical Institution, with an intimation of the period within
which, the University or medical institution may submit its explanation to the
State Government; and on receipt of the explanation, if any within the
stipulated period the State Government on the expiry of the period shall make
its recommendations to the Central Government and the Central Government after
making such further enquiries, if any, as it may think fit, proceed to act in
the manner laid down in sub-sec. (4) of S. 19 of the Act. S. 19A of the Act
which is important for our purposes in this appeal reads as follows :
775 "(1) The Council may prescribe the
minimum standards A of medical education required for granting recognised medical
qualifications (other than post-graduate medical qualifications) by
Universities or medical institutions in India.
(2) Copies of the draft regulations and of
all subsequent amendments thereof shall be furnished by the Council to all
State Governments and the Council shall, before submitting the regulations or
any amendment thereof, as the case may be, to the Central Government for
sanction, take into consideration the comments of any State Government received
within three months from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time
report to the Council on the efficacy of the regulations and may recommend to
the Council such amendments thereof as n it may think fit".
S. 20 deals with post-graduate medical
studies and S. 20A deals with professional conduct. Ss. 21 to 28 make provision
for the maintenance of Indian Medical Register, supply of copies of the State
Medical Registers to the Council by the State Medical Council, registration in
the Indian Medical Council Register, removal of any name from the Indian
Medical Register, provisional registration, registration of additional
qualifications, privileges of persons who are enrolled on the Indian Medical
Register and the requirement of notification of change of address by every
person registered in Indian Medical Register. S. 29 casts an obligation on the
Council to furnish reports, copies of minutes, abstracts of its accounts and
other information that the Central Government will require, to the Central
Government. S. 30 empowers the Central Government to institute a commission of
enquiry whenever it is made to appear to the Central Government that the
Council is not complying with any provisions of the Act. S. 31 is intended to
offer protection in respect of acts done in good faith under the Act, These
sections do not have any material bearing on the question involved in the
present proceeding.
S. 32 authorizes the Central Government to
make rules to carry out the purposes of this Act, and sub-section (2) of S. 32
makes it obligatory that such rules shall be laid before the Parliament. S. 33
of the Act provides:
776 "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) ... ... ... ...
... ... ... ...
... ... ... ...
(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;
(I) the conduct of professional examinations,
qualifications of examiners, and the conditions of admission to such
examinations;
(m) the standard of professional conduct and
etiquette and code of ethics to be observed by medical practitioners; and (n)
any matter for which under this Act provision may be made by regulations.
S. 34 of the Act which happens to be the last
section repeals the earlier Indian Medical Council Act of 1933, providing for
the usual saving clause.
An analysis of the various sections of the
Act indicate that the main purpose of the Act is to establish Medical Council
of India, to provide for its constitution, composition and its functions; and
the main function of the Council is to maintain the medical register of India
and to maintain a proper standard of medical education and medical ethics and
professional conduct for medical practitioners.
The scheme of the Act appears to be that the
Medical Council of India is to be set up in the manner provided 777 in the Act
and the Medical Council will maintain a proper medical register, will prescribe
minimum standards of medical education required for granting recognised medical
qualifications, will also prescribe standards of post- graduate medical
education and will further regulate the standards of professional conduct and
etiquette and code of ethics for medical practitioners. The Act further
envisages that if it appears to the Council that the courses of study and
examination to be undergone in, or the proficiency required from candidates at
any examination held by any University or Medical Institution do not conform to
the standard prescribed the Council or that the staff, equipment,
accommodation, training and other facilities for instructions and training
provided in such University or medical institution or in any college or other
institution affiliates to the University do not conform to the standards
prescribed by the Council, the Council will make a representation to that
effect to the Central Government and on consideration of the reorientation made
by the Council, the Central Government may take action in terms of the
provisions contained in S. 19 of the Act. The Act also empowers the Council to
take various measures to enable the Council to judge whether proper medical
standard is being maintained in any particular institution or not.
Now coming to the consideration of the
question involved in this appeal, it appears from the provisions of the Act
that the . authority of the Council extends to the sphere of maintaining proper
medical standards in medical colleges or institutions necessary for obtaining
recognised medical qualifications. By virtue of this authority it may be open
to the Council to lay down the minimum educational qualifications required of a
student who may seek admission into a medical college. In other words, the
eligibility of a candidate who may seek to get admitted into a medical college
for obtaining recognised medical qualifications may be prescribed by the Council.
All the candidates who are eligible for admission into Medical Colleges or
Institution for getting themselves qualified as medical practitioners are
entitled to seek admission into a Medical College or Institution. As to how the
selection has to be made out of the eligible candidates for admission into the
Medical College is a matter which has necessarily to depend on circumstances
and conditions prevailing in particular States. Though the question of
eligibility for admission into the medical curriculum may come within the power
and jurisdiction of the Council, the question of selection of candidates out of
the candidates eligible to undergo 778 the medical course does not appear to
come within the purview of the Council. The observations of the Supreme Court
in the case of State of Kerala v. Kumari T.P. Roshana and Ors. (supra) quoted
earlier relate to the question of qualification or eligibility of students for
admission into a medical college and the said observations are not intended to
apply to a case of selection of students for admission into a Medical College
out of the eligible candidates. As the number of candidates seeking admission
to Medical Colleges largely exceed the number of vacancies available to such
candidates for admission, some kind of procedure has to be evolved for such
selection. The process of selection of candidates for admission to a medical
college out of the candidates eligible for admission for filling up the limited
vacancies has no real bearing on the question of eligibility or qualification
for admission or on the standard of medical education. The standard of medical
education really comes into the picture in the course of studies in the medical
colleges or institutions after the selection and admission of candidates into medical
colleges and institutions.
Students who satisfy the requirements of
Regulation I become qualified or eligible to seek admission into the Medical
Course. Regulation I prescribes requisites which have to be satisfied to enable
every student to become eligible or qualified to seek admission and the process
of selection comes thereafter.
Undoubtedly, under S. 33 of the Act, the
Council is em powered to make regulations with the previous sanction of the
Central Government generally to carry out the purposes of the Act and such
regulations may also provide for any of the matters mentioned in S. 33 of the
Act. We have earlier indicated what are the purposes of this Act. Sub-ss. (j),
(k), (l) and (m) of the Act which we have earlier set out clearly indicate that
they have no application to the process of selection of a student out of the
eligible candidates for admission into the medical course. Sub-s. (j ), (k),
and (I) relate to post admission stages and the period of study after admission
in medical colleges. Sub-s (m) of S. 33 relates to a post-degree stage Sub-s.
(n) of S.
33 which has also been quoted earlier is also
of no assistance as the Act is not concerned with the question of selection of
students out of the eligible candidates for admission into medical colleges. It
appears to us that the observations of this Court in the case of Arti Sapru v.
State of Jammu and Kashmir and Ors. (supra)
which we have earlier quoted and which were relied on by Mr. Phadke, were made
on such consideration, though the question was not very properly finally
decided in the absence of the Council.
779 We shall now consider the two relevant
Regulations of the A Council and they are Regulations I and II. The said
Regulations read:- I. Admission to the Medical Course No candidate shall be
allowed to be admitted to the Medical Curriculum proper until:
(i) he has completed the age of 17 years at
the time of admission or will complete the age on or before 31st December of
the year of his admission to the Ist M.B.B.S. Courses.
Provided that the candidates who are admitted
directly to the 5-1/2 years integrated M.B.B.S. course should have completed
the age of 16 years at the time of admission or will complete this age on 31st
December of the year of admission to the pre-medical course.
(ii) he has passed:
(a) the Intermediate examination in Science
of an Indian University/Board or other recognised examining body with Physics,
Chemistry and Biology, which shall include a practical test in these subjects;
OR (b) the pre-professional/pre-medical
examination with physics, chemistry and biology, after passing either the
higher secondary school examination, or the pre-university or an equivalent
examination. The pre-professional pre- medical examination shall include a
practical test in these subjects:
OR (c) the first year of the three years
degree course of a recognised university, with physics, chemistry and biology,
including a practical test in 780 these subjects provided the examination is
"University Examination.'.
OR (d) "B. Sc. examination of an Indian
University. Provided that he has passed the B. Sc examination with not less
than two of the following subjects-Physics, Chemistry, Biology (Botany,
Zoology; and further that he has passed the earlier qualifying examination with
the following subjects, Physics, Chemistry, Biology and English.
Note : A student who has passed the B. Sc.. examination
with one or more of the subjects mentioned earlier would be admitted to the
Medical Course if he had passed the remaining subjects of the Medical group
(Physics, Chemistry and Biology) in the pre-professional intermediate
examination.
(e) The Higher Secondary Examination or the
Indian School Certificate Examination which is equivalent to 10+2 Higher
Secondary Examination after a period of 12 years study, the last two years of
study comprising of Physics. Chemistry, Biology and mathematics or any other
elective subject with English at a level not less than the Core Course for
English as prescribed by the National Council for Education Research and
Training, after the introduction of 10+2+3 years educational structure as
recommended by the National Committee on Education.
Note : Where the course content is not as
prescribed for 10+2 education structure of the National Committee, the candidates
will have to undergo a period of one year pre-professional training before
admission to the medical college 781 (f) any other examination which, in scope
and standard is found to be equivalent to the intermediate science examination
of an Indian University-Board, taking physics, chemistry and biology, including
a practical test in each - of these subjects and English.
Note: (a) The pre-medical course may be
conducted either at Medical College or a Science College.
(b) After the 10+2 course is introduced, the
integrated course should be abolished.
II. Selection of Students.
The selection of students to a medical
college should be based solely on merit of the candidate and for determination
of merit, the following criteria be adopted uniformly throughout the country:-
(a) In States, having only one Medical College and one
University/Board/Examining body conducting the qualifying examination, the
marks obtained at such qualifying examination be taken into consideration.
(b) In States having more than one
University/Board/ Examining Body conducting the qualifying examination (or
where there are more than one medical college under the administrative control
of one authority), a competitive entrance examination should be held so as to
achieve a uniform evaluation due to the variation of the standard of qualifying
examinations conducted by different agencies.
(c) Where there are more than one
university/board con- ducting the qualifying examination then a joint selection
board be constituted for all the colleges.
782 (d) A competitive entrance examination is
absolutely necessary in the case of institutions of All India character.
(e) To be eligible for competitive entrance
examination, candidate must have passed any of the qualifying examinations as enumerated
under the head-note "Admission to Medical Course." Provided that a
candidate who has appeared in a qualifying examination the result of which has
not been a declared, may be provisionally allowed to take up the competitive
examination and in case of his selection for admission to a medical college, he
shall not be admitted thereto unless in the meanwhile he has passed the
qualifying examination.
Provided also that a candidate for admission
to the medical course must have obtained not less than 50% of the total marks
in English and Science subjects taken together (i) at the qualifying
examination (or at a higher examination) in the case of medical college where
the admissions are made on the basis of marks obtained at these examinations or
(ii) 50% of the total marks in English and Science subjects taken together at
the competitive entrance examination where such examinations are held for
selection.
Provided further that in respect of
candidates belonging to Scheduled Castes/Scheduled Tribes the minimum marks
required for admission shall be 40% in lieu of 50% for general candidates.
Where the seats reserved for Scheduled Castes
and Scheduled Tribes students in any State cannot be filled for (1 want of
requisite number of candidates fulfilling the mini mum requirements prescribed
from that State then such vacant seats may be filled up on all India basis with
Scheduled Castes and Scheduled Tribes candidates getting not less than the
minimum prescribed pass percentage or reverted to general category.
783 The authorities (State Government and
Universities) A should arrange special coaching classes for Scheduled
Castes/Seheduled Tribes candidates before the qualifying/ competitive
examination to enable them to come up to the appropriate standard for admission
to the Medical Courses.
Regulation I prescribes the eligibility of a
candidate for admission to medical courses. For maintaining proper standards in
medical colleges and institutions it comes within the competence of the Council
to prescribe the necessary qualification of the candidates who make seek
admission into the Medical Colleges. As this Regulation is within the
competence of the Council, the Council has framed this Regulation in a manner
which leaves no doubt that this Regulation is mandatory. The language of this
Regulation, which starts with the words "no candidate shall be allowed to
be admitted to the medical curriculum until.. ", makes this position
absolutely clear. On the other hand the language in Regulation II which relates
to selection of candidates clearly goes to indicate that the Council itself
appears to have been aware of the limitation on its powers to frame any such
regulation regarding the procedure or process of selection of candidates for
admission to the Medical Course out of the candidates qualified or eligible to
seek such admission. As, however, the question of selection of candidates for
admission into medical colleges out of the eligible candidates is a h problem
more or less common to all the States, the Council might have considered it
desirable to recommend certain guidelines which may be followed in the matter
of selection of students out of the eligible candidates for admission into
medical colleges. It is well known that all over India candidates who aspire to
get admission into medical colleges and who are otherwise eligible or qualified
for admission to medical courses on the basis of the provisions contained in
Regulation I of the Council, cannot all be admitted into the medical college or
institution for dearth of seats. By way of solution of this problem, the
Council appears to have thought it fit to suggest the procedure which will have
the effect of selecting such candidates on the basis of merit only. The
procedure suggested is intended to do away with nepotism and favouritism and
any unfair practice in the matter of such admission, as the procedure
recommends merit to be the criterion. The Council itself appears to have
apprehended that what is contained in Regulation II is merely in the nature of
a recommendation and this is evident from the language used in Regulation II
particularly when the same is contrasted with the language used by the Council
in Regulation I. Regulation II begins with the words "seiection of
students in a medical college should be based solely on merit". We are of
the opinion that the use of the words "should be" in Regulation II is
deliberate and is intended to indicate the intention of the Council that it is
only in the nature of a recommendation. Regulation I which lays down the
conditions or qualifications for admission into Medical Course comes within the
competence of the Council under S.
33 of the Act and is mandatory and the
Council has used language to manifest the mandatory character clearly, whereas
Regulation II which deals with the process or procedure for selection from
amongst eligible candidates for admission is merely in the nature of a
recommendation and directly in nature, as laying down the process or procedure
for selection for admission of candidates out of the candidates eligible or
qualified for such admission under Regulation I. Regulation II recommending the
process of selection is outside the authority of the Council under S.
33 of the Act and the Council has advisedly
and deliberately used such language in Regulation II as makes the position
clear and places the matter beyond any doubt. 'There is another aspect of the
matter which also goes to suggest that Regulation II is merely directory and
does not have any mandatory force. Apart from reservations of seats for
Scheduled Castes Scheduled Tribes categories and other reservations,
reservation of seats is commonly made for being filled up by nomination. In the
instant case before us, it appears that the seats not exceeding three per cent
are reserved for the nominees of the Government of India apart from the other
reservations. These nominees of the Central Government do not have to sit for
any pre-medical examination to qualify themselves for selection to the medical
colleges. They must of course be eligible for admission in the sense that h ey
must have the necessary qualification for admission in accordance with
Regulation I.
The candidates eligible under Regulation I
are selected by virtue of nomination and there is no question of any pre-
medical test for such candidates nominated by the Central Government. If
Regulation II could be considered to be mandatory, there could be no such
nomination of candidates by the Central Government.
Entry 66 in List I (Union List) of the 7th
Schedule to the Constitution relates to "co-ordination and determination
of standard in institutions for higher education or research and scientific and
technical institutions". This entry by itself does not have any bearing on
the question of selection of candidates to the Medical 785 Colleges from
amongst candidates who are eligible for such A admission. On the other hand,
entry 25 in List II (Concurrent List) of the same Schedule speaks
of-"education, including technical education, medical education in
Universities, subject to entries 63, 64, 65 and 66 of List l .. vocational and
technical training of labour". This entry is wide enough to include within
its ambit the question of selection of candidates to medical colleges and there
is nothing in the entries 63, 64 and 65 of List I to suggest to the contrary.
We are, therefore, of the opinion that Regulation 11 of the Council which is
merely directory and in the nature of a recommendation has no such statutory
force as to render the order in question which contravenes the said regulation
illegal, invalid and unconstitutional. C In the case of Slate Andhra Pradesh
and Ors. v. Lavu Narendranath and Ors., etc.(l) this Court held at page 709-
"the executive have. a power to make any regulation which should have the
effect of a law so long as it does not contravene any legislation already
covering the field .. ".
Under Art. 162 of the Constitution the
executive power of a State, therefore, extends to the matter with regard to
which the legislature of a State has power to make laws. As there is no
legislation covering the field of selection of candidates for admission to
medical colleges, the State Government would, undoubtedly be competent to pass
executive orders in this regard.
We shall now proceed to consider whether the
order in question is violative of Art. 15 (l) and (2) of the Constitution. The
High Court has held that as the order is violative of the Regulation of the
Council, the order cannot be supported under Art. 15 (4) of the Constitution.
We have earlier held that the contravention of Regulation II which is merely
directory and in the nature of a recommendation does not invalidate the order.
As the order in question is not liable to be struck down on the ground of
contravention of Regulation II of the Council, the order can clearly be
supported under Art. l5 (4) of the Constitution.
It cannot be disputed that the State must do
everything possible for the upliftment of the Scheduled Castes and Scheduled
Tribes and other backward communities and the State is entitled to make reservations
for them in the matter of admission to medical 786 and other technical
institutions. In the absence of any law to the contrary, it must also be open
to the Government to impose such conditions as would make the reservation
effective and would benefit the candidates belonging to these categories for
whose benefit and welfare the reservations have been made. In any particular
situation, taking into consideration the realities and circumstances prevailing
in the State it will be open to the State to vary and modify the conditions
regarding selection for admission, if such modification or variation becomes
necessary for achieving the purpose for which reservation has been made and if
there be no law to the contrary. Note (ii) of rule 20 of the Rules for
admission framed by the State Government specifically empower the Government to
grant such relaxation in the minimum qualifying marks to the extent considered
necessary. In the State of Kerala and Anr. v.N.M. Thomas (1) this Court by a
majority had held that relaxation of the Rules which required a lower division
clerk to pass a departmental test within a period of two years in the interest
of the employees belonging to Scheduled Castes and Scheduled Tribes was not
unconstitutional or illegal. The relaxation made by the State Government in the
rule regarding selection of candidates belonging to Scheduled Castes and
Scheduled Tribes for admission into medical colleges cannot be said to be
unreasonable and the said relaxation constitutes no violation of Art. 15 (l)
and (2) of the Constitution. The said relaxation also does not offend Art. 14
of the Constitution. It has to be noticed that there is no relaxation of the
condition regarding eligibility for admission into medical colleges. The
relaxation is only in the rule regarding selection of candidates belonging to
Scheduled Castes and Scheduled Tribes categories who were otherwise qualified
and eligible to seek admission into medical colleges only in relation to seats
reserved for them. The respondent Nivedita Jain and other deserving candidates
may feel that because of the reservations they are being deprived of the
opportunity of getting their admission into medical colleges. It is.
however, to be noted that the validity of the
reservations of seats for candidates belonging to Scheduled Castes and
Scheduled Tribes categories has not been challenged in the writ petition and
very properly as in view of Art. IS (4) of the Constitution. In the case of
Jagdish Saran and Ors. v.
Union of India and Ors.,(l) relied on by Mr.
Phadke, this Court has held that the Indian Constitution is wedded to equal
protection and non-discrimination and Arts.14, 15 and 16 are inviolable 787 and
Art. 29 (2) strikes a similar note though it does not refer to A regional
restrictions or reservations; Art. IS further saves State's power to make
special provisions for women and children or for advancement of socially and
educationally backward classes and reservations under Art.
IS (4) exist and are applied. This Court
further held at p.
855 as under :- "Coming to brasstacks,
deviation from equal marks will meet with approval only if the essential
conditions set out above are fulfilled. The class which enjoys reservation must
be educationally handicapped.
The reservation must be geared to getting
ever the handicap. The rationale of reservation must be in the case of medical
students, removal of regional or class inadequacy or like disadvantage."
The view expressed by the Patna High Court in the case of Amalendu Kumar v.
State of Bihar (supra) that Art. 15 (l) of the Constitution cannot be
meaningful and will become illusory until minimum standards of proficiency are
laid down and followed in the matter of admission to Medical Colleges and if
undeserving candidates are admitted into medical colleges, the standard of
medical education will go down, undeserving candidates admitted to medical
colleges would not be able to pass out and qualify as doctors and there may be
many drop-outs and doctors not properly qualified will prove a danger to society,
appears to be untenable. It fails to notice that there is no relaxation in the
standard of medical education or curriculum of studies in medical colleges for
those candidates after their admission to the college and the standard of
examination and the curriculum remains the same for all. There may be drop-
outs and many of these candidates may not qualify. There may also be such
failures and drop-outs in the case of other candidates than those belonging to
these categories. It is eminently desirable that some kind of minimum standard
for selection for admission to medical colleges apart from eligibility should
be there. It has been represented to us by the Counsel for the State that the
State has, in fact, prescribed such a minimum standard for selection of even
the candidates belonging to Scheduled Castes and Scheduled Tribes into medical
colleges.
The only other ground that was urged in
support of the case of the writ petitioners that the order in question is
illegal and invalid, is that the order violates ordiance 54 of the University
of 788 Jabalpur. No such ground has been taken in the writ petition. Though the
High Court has considered this argument, the High Court does not appear to have
come to any definite finding on this question. This question, in the instant
case, cannot be said to be a question of pure law.
In the affidavit which has been filed on
behalf of the University, it has been stated that the ordinance 54 has not been
adhered to. In the absence of any plea being taken in the writ petition, we are
of the opinion that the respondent is not entitled to urge this point and rely
on any alleged contravention of ordinance 54 of Jabalpur University.
In the result the order in question is not,
therefore, liable to be struck down as being violative of Regulation Ir or of
Art. 15 of the Constitution. The appeal. therefore, succeeds. The Judgment and
order passed by the High Court are hereby set aside and the writ petition is
dismissed.
There will, however, be no order as to costs.
Though this appeal succeeds, yet in our
opinion, justice requires that the respondent Nivedita Jain who has already
been admitted to the Medical College on the basis of interim order passed by
the Court and has been prosecuting her studies should be allowed to continue
her studies and to continue to be student of the Medical College where she is
already studying. She is otherwise a qualified candidate and eligible for
admission into the medical course which she is now undergoing and the cause of
justice does not require that her studies should be interrupted and her career
should not be put in jeopardy. We, therefore, direct the authorities concerned
to treat the student Nivedita Jain as a regular student of the college where
she has been admitted and to allow her to continue her studies.
S.R. Appealls alllowed.
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