Dr. Ambesh Kumar Vs. Principal, LIRM
Medical College Meerut & Ors [1986] INSC 274 (19 December 1986)
RAY, B.C. (J) RAY, B.C. (J) SEN, A.P. (J)
CITATION: 1987 AIR 400 1987 SCR (1) 661 1986
SCC Supl. 543 JT 1986 1124 1986 SCALE (2)1211
CITATOR INFO:
F 1987 SC2034 (19) R 1992 SC 932 (9)
ACT:
Education, medical--Admission to
Post-graduate medical courses--Indian Medical Council prescribing certain
qualifications for admission--State Government prescribing an additional
condition, as regards the selection according to merit of a minimum of 55% and
52% marks in MBBS respectively for admission to Degree and Diploma
courses--Whether the said order is repugnant to or encroaches upon or in
conflict with the power of the Central legislature to make laws in respect of
matters specified in Entry 66 of List I of the Seventh Schedule to the
Constitution--Constitution of India, Article 162 and Entry 25 of List III and
Entry 66 of List I of the Seventh Schedule, scope.
HEADNOTE:
While the Central Government as well as the
Parliament has the power to make laws under Entry 66 of List I of the Seventh
Schedule for the purpose of "coordination and determination of standards
in institutions for higher education or research and scientific and technical
institutions", the State Government by virtue of the executive powers
vested under Article 162 of the Constitution has also the power to make laws
under Entry 25 of the Concurrent List III of the Seventh Schedule in respect of
"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".
In accordance with the provisions of section
33 of the Indian Medical Council Act, 1956, the Medical Council with the
previous sanction of the Central Government made the Regulations laying down
the standards of proficiency to be obtained and the practical training to be
undertaken in medical institutions for grant of recognised medical qualification.
The said Regulations lay down the criteria for selection of candidates for
post-graduate training and one such criteria is "students of post graduate
training should be selected strictly on merit judged on the basis of academic
record in the undergraduate course".
While inviting applications by its notice
dated 15.10.82 for admission to the various post graduate courses in degree and
diploma in the 662 different specialities the State Government issued an order
dated 15.12.82, para 6 of which was to the effect that "No candidate shall
he eligible for admission to post graduate degree or diploma course, who has
obtained less than 55% and 52% marks respectively for the two courses (Degree and
Diploma) in merit calculated in accordance with para 2 of the said
notice." Some of the candidates who were denied admission on the ground
that they have obtained less than the prescribed percentage of marks have
approached the Supreme Court under Article 32 of the Constitution and some
others have come by way of special leave having lost their writ petitions
before the Allahabad High Court.
The only question that arose was the
competency of the State Government to prescribe the minimum marks obtained in
MBBS for admission to post graduate courses and whether such an order is in
conflict with the power of the Central Legislature to make laws in respect of
matters specified in Entry 66 of List I of the Seventh Schedule.
Dismissing the appeals and the petitions, the
Court,
HELD: I.1. The State Government order dated
15.12.82 has not in any way contravened or encroached upon the power of the
Central Legislature to make laws or the Central Government to make orders in
regard to matters provided in Entry 66 of List 1 of Seventh Schedule to the
ConstitutionThere is no conflict between the Regulations and also the order in
question. The State Government by laying down the eligibility qualification
namely the obtaining of certain minimum marks in the MBBS examination 'by the
candidates has not in any way encroached upon the Regulations made under the Indian
Medical Council Act nor does it infringe the central power provided in the
Entry_ 66 of List I of the Seventh Schedule to the Constitution. The order
merely provides an additional eligibility, qualification-[672C-F]
1.2 The State Government can in exercise of
its executive power under Article 162 of the Constitution make an order
relating to matters referred to in Entry 25 of the Concurrent List in the
absence of any law made by the State LegislatureThe impugned order made by the
State Government pursuant to its executive powers laying dawn the eligibility
qualification for the candidates to he considered on merits for admission to
the post-graduate courses in Medical Colleges in the State, is valid and it
cannot he assailed on the ground that it is beyond the 663 competence of the
State Government to make such order provided it does not encroach upon or
infringe the power of the Central Government as well as the Parliament provided
in Entry 66 of List I. The impugned order dated 15.12.82 lays down the criteria
or eligibility qualification i.e. obtaining 55% of marks by candidates seeking
admission in the post graduate degree course and obtaining of 52% marks by
candidates seeking admission to post graduate diploma course for being
considered for selection. The order in question merely specifies a further
eligibility qualification for being considered for selection for admission to
the post graduate courses (degree and diploma) in the medical colleges in the
State in accordance with the criteria laid down by the Indian Medical Council.
This does not in any way encroach upon the Regulations that have been framed
under the provisions of section 33 of the Indian Medical Council Act. On the
other hand in order to promote and further the determination of standards in institutions
for higher education, the State Government who runs these colleges provide an
additional eligibility qualification, under its own right.
[669E-G; 670D-H]
1.3 In the instant case the number of seats
for admission to various post-graduate courses both degree and diploma in
Medical Colleges is limited and a large number of candidates undoubtedly apply
for admission to these courses of study. In such circumstances the impugned
order laying down the qualification for a candidate to he eligible for being
considered for selection for admission to the said courses on the basis of the
merit as specified by Regulations made under the Indian Medical Council Act,
cannot be said to he in conflict with the said Regulations or in any way
repugnant to the said Regulations. It does not in any way encroach upon the
standards prescribed by the said Regulations. On the other hand by laying down
a further qualification of eligibility it promotes and furthers the standard in
an institution. [671D-E] State of A.P. & Ors. v. Lavu Narendranath &
Ors. etc., [1971] 3 SCR 699; R. Chitralekha and Anr. v. State.of Mysore
Madras & Ors., [1968] 2 SCR 786, referred
to.
& CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 6016 of 1983 etc.
From the Judgment and Order dated 3.5.1983 of
the Allahabad High Court in Civil Misc. Writ Petition No. nil of 1983.
Yogeshwar Prasad, R.K. Garg, Mrs. Rani
Chhabra, V.J. 664 Francis, N.M. Popli and D.K. Garg for the Appellants.
Anil Dev Singh and Mrs. Shobha Dikshit for
the Respondents.
The Judgment of the Court was delivered by
B.C. RAY, J: All these matters involve a common question of law as to whether
the notice dated 15.12,. 1982 issued by the Government of Uttar Pradesh laying
down the qualification regarding eligibility of a candidate to be considered
for admission to the post-graduate degree in M.D., M.S. and diploma course in
M.D., M.S. etc. on the basis of merit in accordance with the Regulations made
under the Indian Medical Council Act is invalid as it trenches upon Entry 66 of
List I of the Seventh Schedule to the Constitution.
Civil Appeal No. 6119 of 1983 is against the
judgment and order dated 22.4. 1983 made in Civil Misc. Writ Petition No. 946 of
1983 by the High Court of Allahabad dismissing the writ petition holding that
it was within the competence of the State Government to issue the aforesaid
notice laying down the qualification of eligibility for being considered for
admission to the post-graduate course by issuing notice dated 15.12.1982 and
that the said notice is not repugnant to or encroach upon the field covered by
Entry 66 of the List I of the Seventh Schedule to the Constitution.
Special leave petition No. 7925 of 1983 out
of which Civil Appeal No. 6016 of 1983 arises is also directed against the
order dated 3.5.1983 summarily dismissing the writ petition No. Nil raising the
identical question i.e. challenging the aforesaid notice dated 15.12.1982
issued by the State of Uttar Pradesh.
The other writ petitions have been filed
before this Court challenging also the power of the State of U.P. to such
notice dated 15.12.1982 and raising the similar question of law.
The salient facts of all these cases in brief
are as follows: In accordance with the provisions of Section 33 of the Indian
Medical Council Act, 1956, the Medical Council with the previous sanction of
the Central Government made the Regulations laying down the standards for
proficiency to be obtained and the practical training to be undertaken in
medical institutions for grant of recognised medical qualification. The said
Regulations as approved by the 665 Central Government lay down the criteria for
selection of candidates for post-graduate training as follows:"(a)
Students of post-graduate training should be selected strictly on merit judged
on the basis of academic record in the undergraduate course. All selection for
post-graduate studies should be conducted by the Universities.
(b) The candidates should have obtained full
registration i.e. they must have completed satisfactorily one year of
compulsory rotating internship after passing the final MBBS examination and
must have full registration with State Medical Council.
(c) They must subsequently have done one
year's housemanship prior to admission to the post-graduate degree or diploma
course.
House-manship should preferably be for one
year in the same subject or at least six months in the same department and the
remaining six months in an allied department provided that in departments like
Radiology/ Anaesthes, biology/physical medicine and Rehabilition where suitable
candidates who have done housemanship in Medicine and/or in the surgery may be
considered as sufficient.
Must have alternatively worked as a Full time
postgraduate student in a manner equivalent to housemanship requirements, in
the department concerned before taking up the post-graduate courses." The
post-graduate Committee was of the opinion that in order to determine the merit
of a candidate for admission to post-graduate medical courses, (i) his
performance at the MBBS examination; (ii) his performance during the course of
internship and housemanship for which a daily assessment chart be maintained
and (iii) the report of the teachers which is to be submitted periodically may
be considered.
Alternatively the authorities concerned may
conduct competitive entrance examination to determine the merit of a candidate
for admission to post-graduate medical courses.
666 The period of training for M.D., M.S.
shall be three years after full registration including one year of house job or
equivalent thereof." The State Government issued a notice on 15.10. 1982
inviting applications for admission to the various postgraduate courses in
degree and diploma in the different specialities of the medical colleges. In
para 4 of the said notice it has been specifically stated that the minimum
eligibility qualification of the applicants would be according to the
recommendations of Medical Council of India.
There are other terms and conditions
regarding filling up of the seats of the various disciplines which being not
relevant for consideration in these matters, are not mentioned herein. The
terms and conditions of the said notice clearly stated that the admission will
be made as per existing rules and regulations of the Government and the college
and recommendations of the Medical Council of India. Thereafter a Government
Order dated 15.12.1982 was issued by the Government wherein it has been
provided in para 6 to the following effect:-"No candidate shall be
eligible for admission to postgraduate Degree or Diploma Course, who has
obtained less than 55% and 52% marks respectively, for the two courses (Degree
& Diploma) in merit calculated in accordance with para 2 of the said
notice:" Para 2 of this notice lays down the manner of determining the
merit of a candidate for the purpose of considering his admission to the
post-graduate course in State Medical Colleges.
In accordance with the said Government Order
dated 15.12.1982, a candidate in order to be eligible for consideration for
admission to the post-graduate course on merit must have secured 55% marks for
admission to post-graduate degree course and 52% marks for admission to the
post-graduate diploma course. Thus a candidate having not secured the requisite
marks in MBBS examination will be ineligible for consideration on the basis of
merit for admission to the various post-graduate courses in medical college.
The unsuccessful candidates who are not eligible for consideration according to
this Government Order have questioned the power' of the State Government in
making the aforesaid order on the ground that the Medical Council by its
Regulations has already laid down the requisite criteria or standards for
admission to the post-graduate courses in the Medical Colleges in accordance
with the merits of the candidates con667 cerned and as such the State
Government is not competent to lay down further eligibility qualification for
the candidates for being considered for admission in the post-graduate
courses--both in the degree and diploma courses. It has also been contended
that the State Government is not competent to lay down or prescribe the said
qualification which, it is alleged, encroaches upon the power of the Central
Government as provided in Entry 66 of List 1 of the Seventh Schedule. It has
also been pleaded in the petition that Entry 25 of List III of Seventh Schedule
to the Constitution is subject to the provisions of Entry 66 of List I and as
such the said Government Order being repugnant to the Regulations made by the
Indian Medical Council and approved by the Central Government pursuant to
Section 33 of the Indian Medical Council Act, is invalid.
The writ petition was heard and was dismissed
on 22nd April, 1983 by the High Court of Allahabad holding that the State
Government is competent to make the Order under Entry 25 of List III of the
Seventh Schedule to the Constitution in exercise of its executive power under
Article 162 of the Constitution of India.
It was further held that the said Government
Order does not, in any way, encroach upon or conflict with the power of the
Central Government to make orders under Entry 66 of List I of Seventh Schedule
to the Constitution, as the screening envisaged on the basis of the minimum
percentage of marks acts in further implementation of the Regulations made
under the Indian Medical Council Act. It was also held that the notification in
question is prospective in its terms as it applies to all candidates who sought
admission on or after 15.12. 1982.
It is against this judgment and order the
Civil Appeal No. 6119 of 1983 has arisen by special leave. Similarly Civil
Appeal No. 6016 of 1983 has also arisen by special leave against the judgment
and order of High Court of Allahabad dated 3.5.1983 made in writ petition No.
nil of 1983.
Both these Civil Appeals as well as the writ
petitions concern the admission of students in the post-graduate courses in the
Medical Colleges for the session commencing on 1st April, 1983 and ending on
31st of March, 1984, in case of diploma course or ending on 31st March, 1985 in
case of Degree course. Undoubtedly, this session has long expired and as such
the applicants in the writ petitions or the appellants in the said appeals
will' not be benefitted even if the decision is 668 rendered in their favour.
However, we deem it fit and proper to dwell upon the only contention raised
before this Court regarding the validity of the Government order dated 15.12.
1982 whereby the Government of Uttar Pradesh
have specifically laid down in para 6 of the Order the eligibility
qualification i.e. obtaining of 55% marks or 52% marks for being eligible for
consideration for admission in the postgraduate degree or diploma courses
respectively in accordance with the Regulations made by the Indian Medical
Council for consideration strictly or merit for admission to the said
post-graduate courses both degree and diploma. It has been urged with some
vehemence that it is within the province of Medical Council to make
recommendations under Section 33 of the Indian Medical Council Act prescribing
the standards or criteria for selection of candidates for postgraduate training
and the Central Government accepted them by framing Regulations. The State
Government by its order dated 15.12.1982 prescribed a further criteria or
standard of eligibility for the candidates to be considered for admission to
post-graduate degree or diploma course and this is in conflict with the
Regulations and as such it is invalid as it encroaches upon the power of the
Central Government provided in Entry 66 of List I of the Seventh Schedule of
the Constitution.
In order to consider and determine this
question it is relevant to look into the Regulations made by the Indian Medical
Council under Section 33 of the said Act. The Regulations have been enumerated
at pages-4-5. These Regulations thus provide that the students of postgraduate
training are to be selected strictly on merit judged on the basis of academic
record in the under--graduate course and that all selections for post-graduate
studies are to be conducted by the Universities besides looking to the other
criteria regarding rotating internship, housemanship etc. The Government of
Uttar Pradesh issued a notice on 15.10.1982 inviting applications in prescribed
form for admission to the postgraduate degree and diploma courses for the
different Medical Colleges of the province. In para 4 of the said notice it has
been specifically provided that the minimum eligibility qualification of the
applicants would be according to the recommendations of the Medical Council of
India. On 15.12.1982, the Government issued another order laying down the
policy and procedure to be followed with regard to the admission of candidates
to the post-graduate courses (both degree and diploma) in State Medical
Colleges. In this order in para 6 it has been specifically provided that
"no candidate shall be eligible for admission for post-graduate degree or
diploma course who has obtained less than 55% and 52% marks respectively 669
for the two courses (degree and diploma) on merit to be calculated in accordance
with para 2 of the said order." It is this eligibility criteria laid down
in the said Government order which is the subject matter of challenge in these
appeals and writ petitions before this Court.
The said order modifies to a certain extent the
earlier notification issued on 15.10.1982 inviting applications for admission
to the post-graduate courses as per notification dated 3.12. 1980. In the
notification dated 3.12.1980, the criteria for admission to the post-graduate
courses was on the basis of merit only. In para 2 of the said order the manner
how the merit is to be determined has been laid down.
In that order there was no such criteria laid
down as mentioned in the Government order dated 15.12. 1982. Two questions
arise for our consideration which are firstly whether the State Government is
competent to make the aforesaid order in question in exercise 'of its executive
powers under Article 162 of the Constitution. This Article specifically
provides that the executive powers of the State shall extend to matters with
respect to which the legislature of the State has power to make laws. Entry 25
of the Concurrent List i.e. List III of the Seventh Schedule to the Constitution
provides as follows:-"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 State
Government can in exercise of its executive power make an order relating to
matters referred to in Entry 25 of the Concurrent List in the absence of any
law made by the State Legislature. The impugned order made by the State
Government pursuant to its executive powers laying down the eligibility
qualification for the candidates to be considered on merits for admission to
the post-graduate courses in Medical Colleges in the State, is valid and it
cannot be assailed on the ground that it is beyond the competence of the State
Government to make such order provided it does not encroach upon or infringe
the power of the Central Government as well as the Parliament provided in Entry
66 of List I. Entry 66 of List I is in the following terms:-"Co-ordination
and determination of standards in institutions for higher education or research
and scientific and technical institutions." 670 The only question to be
considered is whether the impugned order is repugnant to or encroaches upon or
is in conflict with the power of the Central Legislature to make laws in
respect of matters specified in Entry 66 of List I of the Seventh Schedule to
the Constitution. The Indian Medical Council pursuant to Section 33 of the Indian
Medical Council Act had made certain recommendations which have been embodied
in the Regulations made by the Central Government laying down the criteria or
standards for admitting the candidates to various post-graduate disciplines in
the Medical Colleges of the State. These Regulations, as has been quoted
hereinbefore, clearly prescribe that the candidates should be selected strictly
on merit judged on the basis of academic record in the undergraduate courses
i.e.
MBBS Course and this selection should be
conducted by the University. There are also other eligibility qualifications
provided in the said Regulations namely the candidates must have obtained full
registration i.e. they must have completed satisfactorily one year of
compulsory rotating internship after passing the final MBBS examination and
also they must have done one year's housemanship prior to admission to the
post-graduate degree or diploma course.
The impugned Government order dated 15.12.
1982 lays down the criteria or eligibility qualification i.e. obtaining of 55%
marks by candidates seeking admission in the post-graduate degree course and
obtaining of 52% marks by candidates seeking admission to postgraduate diploma
course for being considered for selection. Entry 25 conforms on the State
Government as well as the State Legislature the power to make orders in respect
of matters mentioned in Entry 25 of List III of the Seventh Schedule to the
Constitution i.e.
with regard to medical education the only
limitation being that such order of the State legislature will be subject to
the provisions of Entry 66 of List I i.e. Co-ordination and determination of
standards in institutions for higher education or research and scientific and
technical institutions.
The order in question merely specifies a
further eligibility qualification for being considered for selection for admission
to the post-graduate courses (degree and diploma) in the Medical Colleges in
the State in accordance with the criteria laid down by Indian Medical Council.
This does not in any way encroach upon the Regulations that have been framed
under the provisions of Section 33 of the Indian Medical Council Act. On the
other hand in order to promote and further the determination of standards in
institutions for higher education, the State Government who runs these colleges
provide an additional eligibility qualification. A similar question crept up in
the case of State of A.P. & Ors., v. Lavu Narendranath &.Ors. etc.,
[1971] 3 SCR 699. In 671 that case the Government of Andhra Pradesh prescribed
for the first time in July, 1970 an entrance test for admission to the Medical
Colleges and also prescribed the standard for eligibility for the test. The
validity of this order prescribing the entrance test was challenged by some
unsuccessful candidates on the ground that it encroaches upon the central
subject listed in Entry 66 of List I of Seventh Schedule to the Constitution.
It was held by the Court that this test prescribed by the Government in no way
militated with the powers of the Parliament under Entry 66 of List I of the
Seventh Schedule to the Constitution. It was also held that the Entry conferred
power on the Parliament to make laws for laying down how standards in an
institution for higher education are to be determined and how they can be
co-ordinated. It had no relation to a test prescribed by Government or by a
university for selection of a number of students from out of a large number
applying for admission to a particular course of study.
In the instant case the number of seats for
admission to various post-graduate courses both degree and diploma in Medical
Colleges is limited and a large number of candidates undoubtedly apply for
admission to these courses of study.
In such circumstances the impugned order
laying down the qualification for a candidate to be eligible for being
considered for selection for admission to the said courses on the basis of the
merit as specified by Regulations made under the Indian Medical Council Act,
cannot be said to be in conflict with the said Regulations or in any way repugnant
to the said Regulations. It does not in any way encroach upon the standards
prescribed by the said Regulations. On the other hand by laying down a further
qualification of eligibility it promotes and furthers the standard in an institution.
The Government who runs these colleges has
the right to prescribe a test of eligibility as has been held by this Court in
the case referred to above.
Similar question came up for consideration
before this Court in the case of R. Chitralekha and Anr. v. State of Mysore
& Ors., [1964] 6 SCR 368. In that case the Government of Mysore appointed
one Selection Committee for settling the admissions to the Engineering Colleges
and another such committee for settling admissions to Medical Colleges. By a
letter the Government of Mysore intimated the Director of Technical Education
that 25% of the maximum marks for the examination in the optional subjects
shall be fixed as interview marks for making selection of candidates for
admission to the Engineering Colleges. The Selection Committee fixed the
minimum 672 marks for interview at 75. On the basis of the marks obtained by
the candidate in examination as well as in interview, selections were made.
This was challenged as infringing upon the power of the parliament to make laws
under Entry 66 of List I of the Seventh Schedule to the Constitution. It had
been held that if the State Legislature prescribed a higher percentage of marks
for extra-curricular activities in the matter of admission to colleges, it
could not be held that such an order directly encroached upon the' field
covered by Entry 66 of List I of Seventh Schedule to the Constitution. The
State Government was held to be within its rights for prescribing
qualifications for admission to colleges so long as its action did not
contravene any other law.
Similar observation has been made also by
this Court in the case of Minor P. Rajendran v. State of Madras & Ors.,
[1968] 2 SCR 786.
On a consideration of the aforesaid decisions
we are unable to hold that the impugned order dated 15.12.1982 has in any way
contravened or encroached upon the power of the Central Legislature to make
laws or the Central Government to make orders in regard to matters provided in
Entry 66 of List I of Seventh Schedule to the Constitution. There is no
conflict between the Regulations and also the order in question. The State
Government by laying down the eligibility qualification namely the obtaining of
certain minimum marks in the MBBS examination by the candidates has not in any
way encroached upon the Regulations made under the Indian Medical Council Act
nor does it infringe the central power provided in the Entry 66 of List I of
the Seventh Schedule to the Constitution. The order merely provides an
additional eligibility, qualification. We are in full agreement with the
reasoning and conclusion of the High Court in this respect. This contention
therefore, in our considered opinion, is without any merit. It is pertinent to
mention in this connection that the number of seats allotted to each of the
prescribed courses is on the basis of two seats per professor and there is a
crying necessity in the State for more experts in various disciplines in Medicine
and Surgery etc. It is incumbent on the State Government-to see that all these
seats earmarked for each of these disciplines or courses are filled up. It
appears from Annexure D to the petition in C.A. No. 6119 of 1983 that quite a
considerable number of seats in various disciplines were kept vacant as the
applicants did not fulfil the eligibility qualification framed by the State
Government by its aforesaid order and as a result several professors and
Assistant professors who are meant for imparting teaching in these disciplines
were kept idle though a considerable fund had to be expended for meeting their
emolumentsIt is for the 673 State to consider and to see that the seats are
filled up in all the disciplines and they are not left vacant in spite of a
large number of applicants applying for admission in the various disciplines
and the State Government has to evolve such criteria of eligibility that all
the seats in different M.D., M.S. degree and diploma courses are filled up.
For the reasons aforesaid, the judgments and
orders made by the High Court of Allahabad on April 22, 1983 and May 3, 1983
are confirmed and both the Civil Appeals as well as all these writ petitions
are dismissed. There will however, be no order as to costs.
S.R. Appeals & Petitions dismissed.
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