Dr.
Preeti Srivastava & ANR Vs. The State of Madhya Pradesh & Ors [1999] INSC 257 (10 August 1999)
S.B.Majmudar
S.B.Majmudar, J.
Leave
granted.
I have
carefully gone through the draft judgment prepared by our esteemed colleague
Justice Sujata V. Manohar. I respectfully agree with some of the conclusions
arrived at therein at pages 61 and 62, namely, conclusion nos. 1 and 4.
However, so far as conclusion nos. 2 and 3 are concerned, I respectfully record
my reservations and partially dissent as noted hereinafter. In my view, the
common entrance examination envisaged under the regulations framed by the
Medical Council of India for Postgraduate Medical Education does not curtail
the power of the State Authorities, legislative as well as executive, from
fixing suitable minimum qualifying marks differently for general category
candidates and for SCs/STs and OBC candidates as highlighted in my present
judgment.
So far
as conclusion no.3 is concerned, with respect, it is not possible for me to
agree with the reasoning and the final conclusion to which our esteemed
colleague Justice Sujata V. Manohar has reached, namely, that fixing minimum
qualifying marks for passing the entrance test for admission to postgraduate
courses is concerned with the standard of Postgraduate Medical Education.
I,
however, respectfully agree to that part of conclusion no.3 which states that
there cannot be a wide disparity between the minimum qualifying marks for
reserved category candidates and the minimum qualifying marks for general category
candidates at this level. I also respectfully agree that there cannot be
dilution of minimum qualifying marks for such reserved category candidates up
to almost a vanishing point. The dilution can be only up to a reasonable extent
with a rock bottom, below which such dilution would not be permissible as
demonstrated hereinafter in this judgment. In my view, maximum dilution can be
up to 50% of the minimum qualifying marks prescribed for general category
candidates. On that basis if 45% passing marks are prescribed for general
category, permissible dilution can then go up to 22 and 1/2 % (50% of 45%). Any
dilution below this rock bottom would not be permissible under Article 15(4) of
the Constitution of India.
For
reaching the aforesaid conclusions, I have independently considered the scheme
of the relevant provisions of the Constitution in the light of the various
judgments of this Court as detailed hereinafter :
Entry
66 of List I, Old Entry 11(2) of List II and Entry 25 of List III: Entry 66 of
List I of the Seventh Schedule reads as under : Co-ordination and determination
of standards in institutions for higher education or research and scientific
and technical institutions.
Old
Entry 11 of List II, as earlier existing in the Constitution of India, read as
under :
Education
including universities, subject to the provisions of entries 63, 64, 65 and 66
of List I and entry 25 of List III.
While
Entry 25 of List III as now existing in the Seventh Schedule of the
Constitution reads as under :
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.
A
conjoint reading of these entries makes it clear that as per Entry 11 of List II
which then existed on the statute book, all aspects of education, including
university education, were within the exclusive legislative competence of the
State Legislatures subject to Entries 63 to 66 of List I and the then existing
Entry 25 of List III. The then existing Entry 25 of the Concurrent List
conferred power on the Union Parliament and State Legislature to enact
legislation with respect to vocational and technical training of labour. Thus,
the said Entry 25 of List III had nothing to do with Medical Education. Any
provision regarding Medical Education, therefore, was thus covered by Entry 11
of List II subject of course to the exercise of legislative powers by the Union
Legislature as per entries 63 to 66 of List I. In the light of the aforesaid
relevant entries, as they stood then, a Constitution Bench of this court in The
Gujarat University, Ahmedabad vs. Krishna Ranganath Mudholkar & Ors., 1963
Suppl.(1) SCR 112, speaking through J.C.Shah, J., for the majority, had to
consider whether the State Legislature could impose an exclusive medium of
instruction Gujarati for the students who had to study and take examination
conducted by the Gujarat University. It was held that If a legislation imposing
a regional language or Hindi as the exclusive medium of instruction is likely
to result in lowering of standards, it must necessarily fall within Item 66 of
List I and be excluded to that extent from Item 11 of List II as it then stood
in the Constitution. Medium of instruction was held to have an important
bearing on the effectiveness of instruction and resultant standards achieved
thereby. In this connection, pertinent observations were made at pages 142 and
143 of the aforesaid Report: If adequate text-books are not available or
competent instructors in the medium, through which instruction is directed to
be imparted, are not available, or the students are not able to receive or
imbibe instructions through the medium in which it is imparted, standards must
of necessity fall, and legislation for co-ordination of standards in such
matters would include legislation relating to medium of instruction.
If
legislation relating to imposition of an exclusive medium of instruction in a
regional language or in Hindi, having regard to the absence of text-books and
journals, competent teachers and incapacity of the students to understand the
subjects, is likely to result in the lowering of standards, that legislation
would, in our judgment, necessarily fall within item 66 of List I and would be
deemed to be excluded to that extent from the amplitude of the power conferred
by item No.11 of List II.
However,
after the deletion of Entry 11 from List II and re-drafting of Entry 25 in the
Concurrent List as in the present form, it becomes clear that all aspects of
education, including admission of students to any educational course, would be
covered by the general entry regarding education including technical and
medical education etc. as found in the Concurrent List but that would be
subject to the provisions of Entries 63 to 66 of List I. Therefore, on a
conjoint reading of Entry 66 of List I and Entry 25 of List III, it has to be
held that so long as the Parliament does not occupy the field earmarked for it
under Entry 66 of List I or for that matter by invoking its concurrent powers
as per Entry 25 in the Concurrent List, the question of admission of students
to any medical course would not remain outside the domain of the State
Legislature. It is not in dispute that up till now the Parliament, by any
legislative exercise either by separate legislation or by amending the Indian
Medical Council Act, 1956 has not legislated about the controlling of
admissions of students to higher medical education courses in the country.
Therefore, the only question remains whether the Indian Medical Council Act
enacted as per Entry 66 of List I covers this aspect. If it covers the topic
then obviously by the express language of Entry 25 of List III, the said topic
would get excluded from the legislative field available to the State Legislature
even under Entry 25 of Concurrent List. For answering this question, we have
therefore, to see the width of Entry 66 of List I. It deals with Co-ordination
and determination of standards in institutions for higher education... A mere
reading of this Entry shows that the legislation which can be covered by this
entry has to deal basically with Co-ordination and determination of standards
in institutions for higher education. Meaning thereby, the standards of
education at the institutions of higher education where students are taking
education after admission are to be monitored by such a legislation or in other
words after their enrolment for studying at such institutions for higher
education such students have to undertake the prescribed course of education
evolved with a view to having uniform and well laid down standards of higher
medical education. It cannot be disputed that postgraduate teaching in medical
education is being imparted by institutions for higher medical education. But
the question is whether the topic of admission of eligible candidates/students
for taking education in such institutions has anything to do with co-ordination
and determination of standards in these institutions. Now standards in the
institutions have been prefixed by two words, namely, co-ordination and
determination of such standards as per Entry 66 of List I. So far as
co-ordination is concerned, it is a topic dealing with provision of uniform
standards of education in different institutions so that there may not be any hiatus
or dissimilarity regarding imparting of education by these institutions to the
students taking up identical courses of study for higher medical education in
these institutions.
That
necessarily has a nexus with the regulations of standards of education to be
imparted to already admitted students to the concerned courses of higher
education. But so far as the phrase determination of standards in institutions
for higher education is concerned, it necessarily has to take in its sweep the
requirements of having a proper curriculum of studies and the requisite
intensity of practical training to be imparted to students attaining such
courses. But in order to maintain the fixed standard of such higher medical
education in the institutions, basic qualification or eligibility for admission
of students for being imparted such education also would assume importance.
Thus, the phrase determination of standards in institutions for higher
education would also take in its sweep the basic qualifications or eligibility criteria
for admitting students to such courses of education. It can, therefore, be held
that the Indian Medical Council Act, 1956 enacted under Entry 66 of List I
could legitimately authorise Medical Council of India which is the apex
technical body in the field of medical education and which is enjoined to
provide appropriately qualified medical practitioners for serving the suffering
humanity to prescribe basic standards of eligibility and qualification for
medical graduates who aspire to join postgraduate courses for obtaining higher
medical degrees by studying in the institutions imparting such education.
But
the next question survives as to whether after laying down the basic
qualifications or eligibility criteria for admission of graduate medical students
to the higher medical education courses which may uniformly apply all over
India as directed by the Medical Council of India, it can have further power
and authority to control the intake capacity of these eligible students in a
given course conducted by the institutions for higher postgraduate medical
education. In other words, whether it can control the admissions of eligible
candidates to such higher medical education courses or lay down any criteria
for short-listing of such eligible candidates when the available seats for
admission to such higher postgraduate medical education courses are limited and
the eligible claimants seeking admission to such courses are far greater in
number? So far as this question is concerned, it immediately projects the problem
of short- listing of available eligible candidates competing for admission to
the given medical education course and how such admissions could be controlled
by short-listing a number of eligible candidates out of the larger number of
claimants who are also eligible for admission. In other words, there can be too
many eligible candidates chasing too few available seats. So far as this
question is concerned, it clearly gets covered by Entry 25 of Concurrent List
III rather than Entry 66 of List I as the latter entry would enable, as seen
above, the Medical Council of India only to lay down the standards of
eligibility and basic qualification of graduate medical students for being
admitted to any higher postgraduate medical course. Having provided for the
queue of basically eligible qualified graduate medical students for admission
to postgraduate medical courses for a given academic year, the role of Medical
Council of India would end at that stage. Beyond this stage the field is
covered by Entry 25 of List III dealing with education which may also cover the
question of controlling admissions and short-listing of the eligible candidates
standing in the queue for being admitted to a given course of study in
institutions depending upon the limited number of seats available in a given
discipline of study, the number of eligible claimants for it and also would
cover the further question whether any seats should be reserved for SC,ST and
OBCs as permissible to the State authorities under Article 15(4) of the Constitution
of India. So far as these questions are concerned, it is no doubt true that
Entry 25 of Concurrent List read with Article 15(4) of the Constitution of
India may simultaneously authorise both the Parliament as well as the State
Legislatures to make necessary provisions in that behalf. The State can make
adequate provisions on the topic by resorting to its legislative power under
Entry 25 of List III as well as by exercising executive power under Article 162
of the Constitution of India read with entry 25 of List III. Similarly, the
Union Government, through Parliament, may make adequate provisions regarding
the same in exercise of its legislative powers under Entry 25 of List III. But
so long as the Union Parliament does not exercise its legislative powers under
Entry 25 of List III covering the topic of short-listing of eligible candidates
for admission to courses of postgraduate medical education, the field remains
wide open for the State authorities to pass suitable legislations or executive
orders in this connection as seen above. As we have noted earlier, the Union
Parliament has not invoked its power under Entry 25 of List III for legislating
on this topic. Therefore, the field is wide open for the State Governments to
make adequate provisions regarding controlling admissions to postgraduate
colleges within their territories imparting medical education for ultimately
getting postgraduate degrees. However, I may mention at this stage that
reliance placed by Shri Chaudhary, learned senior counsel for the State of Madhya Pradesh on a Constitution bench judgment of
this Court in Tej Kiran Jain & Ors. vs. N.Sanjiva Reddy & Ors., 1970(2)
SCC 272, interpreting the word in in the phrase in Parliament to mean during
the sitting of Parliament and in the course of the business of Parliament
cannot be of any avail to him while interpreting the phrase determination of
standards in institutions for higher education as found in Entry 66 of List I.
His submission, relying on the aforesaid decision that directions regarding
standards in institutions mean only those directions of the Medical Council of
India which regulate the actual courses of study after the students are
admitted into the institutions and cannot cover the situation prior to their
admission, meaning thereby, pre-admission stage for students seeking entry to
the institution of higher education cannot be countenanced.
The
reason is obvious. Once it is held that the Medical Council of India exercising
its statutory functions and powers under the Indian Medical Council Act, 1956
which squarely falls within Entry 66 of List I can lay down the eligibility and
basic qualifications of students entitled to be admitted to such postgraduate
courses of study, their eligibility qualification would naturally project a
consideration which is prior to their actual entry in the institutions as
students for being imparted higher education. That would obviously be a
pre-admission stage.
Therefore,
the phrase determination of standards in institutions does not necessarily mean
controlling standards of education only after the stage of entry of students in
these institutions and necessarily not prior to the entry point. However, as
seen earlier, the real question is whether determination of standards in
institutions would go beyond the stage of controlling the eligibility and basic
qualification of students for taking up such courses and would also cover the
further question of short-listing of such eligible students by those running
the institutions in the States. For every academic year, there will be limited
number of seats in postgraduate medical courses vis-a-vis a larger number of
eligible candidates as per guidelines laid down by the Medical Council of
India.
Short-listing
of such candidates, therefore, has to be resorted to. This exercise will depend
upon various imponderables like
i)
limited number of seats for admission in a given course vis-a-vis larger number
of eligible candidates seeking admissions and the question of fixation of their
inter se merits so as to lay down rational criteria for selecting better
candidates as compared to candidates with lesser degree of competence for entry
in such courses;
ii)
Whether at a given point of time there are adequate chances and scope for SC,ST
and OBC candidates who can equally be eligible for pursuing of such courses but
who on account of their social or economic backwardness may lag behind in
competition with other general category candidates who are equally eligible for
staking their claims for such limited number of seats for higher educational
studies, iii) availability of limited infrastructural facilities for training
in institutions for higher medical education in the State or in the colleges
concerned. All these exigencies of the situations may require State authorities,
either legislatively or by exercise of executive powers, to adopt rational
standards or methods for short-listing eligible candidates for being admitted
to such medical courses from year to year also keeping in view the requirement
of Article 15(4) of the Constitution of India. While dealing with Entry 25 of
List III it has also to be kept in view that the word education is of wide
import. It would necessarily have in its fold
(i)
the taught,
(ii)
the teacher,
(iii)
the text and
also
(iv)
training as
practical training is required to be imparted to students pursuing the course
of postgraduate medical education. Who is to be the taught is determined by
Medical Council of India by prescribing the basic qualifications for admission
of the students.
Adequate
number of teachers keeping in view teacher taught ratio is also relevant.
Prescribing appropriate courses for study i.e. curricula is also covered by the
term education. Training to be imparted to the students has a direct nexus with
infrastructural facilities like number of beds of patients to be attended to by
postgraduate medical students, providing appropriate infrastructure for
surgical training etc. also would form part of education. Role of Medical
Council of India is exclusive in the field of laying down of basic
qualifications of the taught and also the requirement of qualified teachers,
their numbers and qualifications, prescribing text and requisite training to be
imparted to students undertaking postgraduate medical courses. All these
provisions quite clearly fall within the domain of Medical Council of Indias
jurisdiction. However, the only field left open by the Parliament while
enacting the Indian Medical Council Act, 1956 under Entry 66 of List III of
Schedule VII is the solitary exercise of short- listing of eligible taught for
being admitted to such courses. That field can validly be operated upon by the
State authorities so long as Parliament, in its wisdom, does not step in to
block even that solitary field otherwise remaining open for State authorities
to function in that limited sphere. Infrastructure facilities, therefore, for
giving such practical training to the taught also would be an important part of
medical education. It is of course true that not only the eligibility of
students for admission to medical courses but also the quality of students
seeking to get medical education especially postgraduate medical education with
a view to turning out efficient medical practitioners for serving the suffering
humanity would all be covered by the term education. So far as the quality of
admitting students to the courses of higher medical education i.e. postgraduate
medical courses is concerned, the admission of students may get sub-divided
into two parts; i) basic eligibility or qualification for being permitted to
enter the arena of contest for occupying the limited number of seats available
for pursuing such education; and ii) the quality of such eligible candidates
for being admitted to such courses. As we have seen earlier, the first part of
exercise for admission can be covered by the sweep of the parliamentary
legislation i.e.
the
Indian Medical Council Act, 1956 enabling the delegate of the Parliament
namely, Medical Council of India to lay down proper criteria for that purpose
as per regulations framed by it under Section 33 of the Indian Medical Council
Act. This aspect is clearly covered by Entry 66 of List I but so far as the
second part of admissions of eligible students is concerned, it clearly remains
in the domain of Entry 25 of List III and it has nothing to do with Entry 66 of
List I and as this field is wide open till the Parliament covers it by any
legislation under Entry 25 of List III, the State can certainly issue executive
orders and instructions or even pass appropriate legislations for controlling
and short-listing the admissions of eligible candidates to such higher
postgraduate medical courses in their institutions or other institutions
imparting such medical education in the States concerned. A three Judge bench
of this Court in Ajay Kumar Singh & Ors. vs. State of Bihar & Ors.,
1994(4) SCC 401, has taken the same view on these entries which commands
acceptance. Jeevan Reddy, J., speaking for the three Judge bench placing
reliance on an earlier three Judge bench judgment of this Court in State of
M.P. vs. Nivedita Jain, 1981(4) SCC 296, and agreeing with the view expressed
therein observed in para 22 of the Report as under : The power to regulate
admission to the courses of study in medicine is traceable to Entry 25 in List
III. (Entry 11 in List II, it may be remembered, was deleted by the 42nd
Amendment to the Constitution and Entry 25 of List III substituted). The
States, which establish and maintain these institutions have the power to
regulate all aspects and affairs of the institutions except to the extent
provided for by Entries 63 to 66 of List I. Shri Salve contended that the
determination and coordination of standards of higher education in Entry 66 of
List I takes in all incidental or ancillary matters, that Regulation of admission
to courses of higher education is a matter incidental to the determination of
standards and if so, the said subject- matter falls outside the field reserved
to the States. He submits that by virtue of Entry 66 List I, which overrides
Entry 25 of List III, the States are denuded of all and every power to
determine and coordinate the standards of higher education, which must
necessarily take in regulating the admission to these courses. Even if the Act
made by parliament does not regulate the admission to these courses, the States
have no power to provide for the same for the reason that the said
subject-matter falls outside their purview. Accordingly, it must be held, says
Shri Salve, that the provision made by the State Government reserving certain percentage
of seats under Article 15(4) is wholly incompetent and outside the purview of
the field reserved to the States under the Constitution. We cannot agree. While
Regulation of admission to these medical courses may be incidental to the power
under Entry 66 List I, it is integral to the power contained in Entry 25 List
III. The State which has established and is maintaining these institutions out
of public funds must be held to possess the power to regulate the admission
policy consistent with Article 14. Such power is an integral component of the
power to maintain and administer these institutions. Be that as it may, since
we have held, agreeing with the holding in Nivedita Jain that Entry 66 in List
I does not take in the selection of candidates or regulation of admission to
institutions of higher education, the argument of Shri Salve becomes out of
place. The States must be held perfectly competent to provide for such
reservations.
It is
also pertinent to note that decision of this Court in Kumari Nivedita Jain
(supra) is approved by a Constitution bench of nine Judges of this court in
Indra Sawhney vs. Union of India, 1992 Supp. 3 SCC 217 at page 751, to which I
will make a detailed reference later on.
II.
Role of the Medical Council of India: As noted earlier, the Indian Medical
Council Act, 1956 was enacted by the Union Parliament in exercise of its powers
under Entry 66 of List I of the Seventh Schedule of the Constitution.
The
statement of objects and reasons of the said Act read as under : The objects of
this Bill are to amend the Indian Medical Council Act, 1933 (Act XXVII of 1933)
- (a) to give representation to licentiate members of the medical profession, a
large number of whom are still practising in the country; (b) to provide for
the registration of the names of citizens of India who have obtained foreign
medical qualifications which are not at present recognised under the existing
Act; (c) to provide for the temporary recognition of medical qualifications
granted by medical institutions in countries outside India with which no scheme
of reciprocity exists in cases where the medical practitioners concerned are
attached for the time being to any medical institution in India for the purpose
of teaching or research or for any charitable object; (d) to provide for the
formation of a Committee of Postgraduate Medical Education for the purpose of
assisting the Medical Council of India to prescribe standards of postgraduate
medical education for the guidance of Universities and to advise Universities in
the matter of securing uniform standards for postgraduate medical education
throughout India; (e) to provide for the maintenance of an all-India register
by the Medical Council of India, which will contain the names of all the
medical practitioners possessing recognised medical qualifications. Amongst
others, the object and reason no.(d) clearly indicated that the Act was to
provide for the formation of a Committee of Postgraduate Medical Education for
the purpose of assisting the Medical Council of India to prescribe standards of
postgraduate medical education for the guidance of Universities. This
necessarily meant conferring power on Medical Council of India to be the
approving body for the universities for enabling them to prescribe standards of
postgraduate medical education. Naturally that referred to the courses of study
to be prescribed and the types of practical training to be imparted to the
admitted students for such courses. We may now refer to the relevant statutory
provisions of the Act. Section 10-A empowers the Central Government to give
clearance for establishing medical colleges at given centres and the statutory
requirements for establishing such colleges. It is the Medical Council of India
which has to recommend in connection with such proposed scheme for establishing
medical colleges. Sub-section (7) of Section 10-A lays down the relevant
considerations to be kept in view by the Medical Council of India while making
such recommendations in connection with any scheme proposing to establish a
medical college. They obviously refer to the types of education to be imparted
to admitted students and the basic requirement of infrastructure for imparting
such education which only would enable the proposed college to be established.
None of these requirements has anything to do with the controlling of
admissions out of qualified and eligible students who can take such education.
Section 11 deals with medical qualifications granted by any University or
medical institution which can be recognised as medical qualifications for the
purpose of the Act. Meaning thereby, only such qualified persons can be
registered as medical practitioners under the Act. None of the other provisions
of the Act deal with the topic of short-listing of eligible and otherwise qualified
candidates for being admitted to medical courses either at MBBS level or even
at post- graduate level. As we are concerned with minimum standards for medical
education at postgraduate level, Section 20 of the Act becomes relevant. It
reads as under : 20.
Postgraduate
Medical Education Committee for assisting Council in matters relating to
postgraduate medical education –
(1)
The Council may prescribe standards of postgraduate medical education for the
guidance of Universities, and may advise Universities in the matter of securing
uniform standards for postgraduate medical education throughout India, and for
this purpose the Central Government may constitute from among the members of
the Council a Postgraduate Medical Education Committee (hereinafter referred to
as the Postgraduate Committee).
(2)
The Postgraduate Committee shall consist of nine members all of whom shall be,
persons possessing postgraduate medical qualifications and experience of
teaching or examining postgraduate students of medicine. (3) Six of the members
of the Postgraduate Committee shall be nominated by the Central Government and
the remaining three members shall be elected by the Council from amongst its
members. (4) For the purpose of considering Postgraduate studies in a subject,
the Postgraduate Committee may co-opt, as and when necessary, one or more
members qualified to assist it in that subject. (5) The views and
recommendations of the Postgraduate Committee on all matters shall be placed
before the Council; and if the Council does not agree with the views expressed
or the recommendations made by the Postgraduate Committee on any matter, the
Council shall forward them together with its observations to the Central
Government for decision.
Sub-section
(1) of Section 20 while dealing with prescription of standards of postgraduate
medical education by the Council for the guidance of Universities does not by
itself touch upon the topic of controlling of admission of eligible medical
graduates or short-listing them according to the exigencies of the situations
at a given point of time by those running medical institutions imparting
postgraduate medical courses in the colleges. Standards of postgraduate medical
education as mentioned in sub-section (1) of Section 20 therefore, would
include guidance regarding the minimum qualifications or eligibility criteria
for such students for admission and after they are admitted having undergone
the process of short-listing at the hands of the State authorities or
authorities running the institutions, how they are to be trained and educated
in such courses, how practical training has to be given to them and what would
be the course of study, the syllabi and the types of examination which they
have to undertake before they can be said to have successfully completed
postgraduate medical education in the concerned States. But having seen all
these it has to be kept in view that all that Sub-section (1) of Section 20
enables the Medical Council of India is to merely give guidance to the
Universities. What is stated to be guidance can never refer to the quality of a
candidate who is otherwise eligible for admission. None of the remaining
provisions up to Section 32 deal with the question of controlling of admission
by process of short-listing from amongst eligible and duly qualified candidates
seeking admission to postgraduate medical courses. We then go to Section 33
which confers power on the Medical Council of India to make regulations. It
provides that the Council may, with the previous sanction of the Central
Government, make regulations generally to carry out the purposes of this Act.
Therefore, this general power to make regulations has to be with reference to
any of the statutory purposes indicated in any other provisions of the Act. As
none of the provisions in the Act enables the Medical Council of India to
regulate the admission of eligible candidates to the available seats for
pursuing higher medical studies in institutions, the general power to make
regulations cannot cover such a topic. So far as the express topics enumerated
in Section 33 on which regulations can be framed are concerned, the relevant
topics for our purpose are found in clauses (fc) and (j). So far as clause (fc)
is concerned, it deals with the criteria for identifying a student who has been
granted a medical qualification referred to in the Explanation to sub-section
(3) of Section 10B. When we turn to Section 10B, we find that it deals with
those students who are admitted on the basis of the increase in its admission
capacity without previous permission of the Central Government. Any medical
qualification obtained by such student will not enable him or her to be treated
as duly medically qualified. The medical qualification is obviously obtained by
the student who has successfully completed his course of study and obtained the
requisite degree. It is the obtaining of such requisite medical degree and
qualification that entitles him to get enrolled as per Section 15 on any State
Medical Register so that he can act as a Registered Medical Practitioner. That
obviously has nothing to do with the admission of students desirous of
obtaining medical degrees after undergoing requisite educational training at
the institutions.
Therefore,
no regulation framed under Section 33(fc) can cover the topic of short-listing
of eligible candidates for admission. Then remains in the filed clause (j)
which provides as under : [(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; A mere look at the said provision
shows that regulations under this provision can be framed by the Medical
Council of India for laying down the courses and period of study and of
practical training to be undertaken, the subjects of examination and the
standard of proficiency therein to be obtained by the admitted students for
obtaining recognised medical qualifications. They all deal with post- admission
requirements of eligible students in the medical courses concerned. That has
nothing to do with pre-entry stage of such students eligible for admission.
Consequently, any regulation framed by the Medical Council of India under Section
33 which seeks to give any guidelines in connection with the method of
admission of such eligible students to medical courses would obviously remain
in the realm of a mere advise or guidance and can obviously therefore, not have
any binding force qua admitting authorities. It, therefore, must be held that
once the Medical Council of India has laid down basic requirements of
qualifications or eligibility criteria for a student who has passed his MBBS
examination for being admitted to postgraduate courses for higher medical
education in institutions and once these basic minimum requirements are
complied with by eligible students seeking such admissions the role of Medical
Council of India comes to an end. As seen earlier, the question of
short-listing falls squarely in the domain of State authorities as per entry 25
of List III till Parliament steps in to cover this field. We may now briefly
deal with decisions of this Court rendered from time to time in connection with
this question. A three Judge bench of this Court in D.N. Chanchala vs. State of
Mysore & Ors.etc., 1971 Supp. SCR 608, speaking through Shelat, J.,
emphasised the necessity for a screening test and short-listing of eligible
candidates for being admitted to medical courses in view of the fact that
claimants are many and seats are less.
Dealing
with three universities set up in the territories of the then State of Mysore
catering to medical education, the following relevant observations were made at
page 619 of the Report : The three universities were set up in three different
places presumably for the purpose of catering to the educational and academic
needs of those areas.
Obviously
one university for the whole of the State could neither have been adequate nor
feasible to satisfy those needs. Since it would not be possible to admit all
candidates in the medical colleges run by the Government, some basis for
screening the candidates had to be set up.
There
can be no manner of doubt, and it is now fairly well settled, that the
Government, as also other private agencies, who found such centres for medical
training, have the right to frame rules for admission so long as those rules
are not inconsistent with the university statutes and regulations and do not
suffer from infirmities, constitutional or otherwise. Similar observations were
made at page 628 of the Report :
On
account of paucity of institutions imparting training in technical studies and
the increasing number of candidates seeking admission therein, there is
obviously the need for classification to enable fair and equitable distribution
of available seats. The very decisions relied on by counsel for the petitioner
implicitly recognise the need for classification and the power of those who run
such institutions to lay down classification.
A three
Judge bench of this Court in State of Madhya Pradesh & Anr. vs. Kumari
Nivedita Jain & Ors., (supra) had to consider the legality of order passed
by the State of Madhya Pradesh completely relaxing the conditions relating to
the minimum qualifying marks for SC,ST candidates for admission to medical
courses of study on non- availability of qualified candidates from these
categories. Such an exercise was held permissible under Articles 14 and 15 of
the Constitution of India. A.N. Sen, J., speaking for the Court in this
connection referred to Entry 25 of the Concurrent List and also the
constitutional scheme of Entry 66 of List I and held that: By virtue of the
authority conferred by the Medical Council Act, the Medical Council may
prescribe the eligibility of a candidate who may seek to get admitted into a
Medical College for obtaining recognised medical qualifications. But as to how
the selection has to be made out of the eligible candidates for admission into
the Medical College necessarily depends on circumstances and conditions
prevailing in particular States and does not come within the purview of the
Council. Regulation I which lays down the conditions or qualifications for
admission into medical course comes within the competence of the Council under
Section 33 of the Act and is mandatory, whereas Regulation II which deals with
the process or procedure for selection from amongst eligible candidates for
admission is outside the authority of the Council under Section 33 of the Act,
and is merely in the nature of a recommendation and is directory in nature.
(paras 19 and 21) Entry 25 in List II 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.
(para 22) 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 under Article
162. (para 24) Thus Regulation II 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. The Order can therefore be supported under Article 15(4).
(paras 22 and 25) The State is entitled to make reservations for the Scheduled
Castes and Scheduled Tribes in the matter of admission to medical 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 empowers
the Government to grant such relaxation in the minimum qualifying marks to the
extent considered necessary. Such relaxation neither can be said to be
unreasonable, nor constitutes violation of Article 15(1) and (2) or Article 14
of the Constitution.
The
impugned order does not affect any 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. (paras 26 and 27) (Emphasis supplied) The
aforesaid observations of the court are well sustained on the scheme of the
relevant entries in VIIth Schedule to which we have made a reference earlier.
As noticed herein before, this judgment of three member bench is approved by
the Constitution bench in its judgment in Indra Sawhneys case (supra). It is of
course true that these observations are made with reference to admission to
MBBS course and not to postgraduate medical courses. But on the constitutional
scheme of the relevant entries, the very same result can follow while
regulating admissions to postgraduate medical courses also. Before parting with
discussion on the topic regarding role of Medical Council of India, we may also
usefully refer to the observations of Jeevan Reddy, J., in the case of Ajay Kumar
Singh & Ors.
vs.
State of Bihar & Ors., (supra). Jeevan Reddy, J., speaking for the three
Judge Bench in para 18 of the Report on the review and relevant provisions of
the Indian Medical Council Act has made the following pertinent observations in
the said para of the Report at page 415 : A review of the provisions of the Act
clearly shows that among other things, the Act is concerned with the
determination and coordination of standards of education and training in
medical institutions. Sections 16, 17, 18 and 19 all speak of the courses of
study and examinations to be undergone to obtain the recognised medical
qualification. They do not speak of admission to such courses. Section 19-A
expressly empowers the council to prescribe the minimum standards of medical
education required for granting undergraduate medical qualification. So does
Section 20 empower the council to prescribe standards of postgraduate medical
education but for the guidance of universities only. It further says that the
council may also advise universities in the matter of securing uniform
standards for postgraduate medical education throughout India. (The distinction
between the language of Section 19-A and Section 20 is also a relevant factor,
as would be explained later.) Clause (j) of Section 33 particularises the
subjects with respect to which Regulations can be made by the council. It
speaks of the courses and period of study and the practical training to be
undergone by the students, the subjects of examination which they must pass and
the standards of proficiency they must attain to obtain the recognised medical
qualifications but it does not speak of admission to such courses of study.
Indeed,
none of the sections aforementioned empower the council to regulate or
prescribe qualifications or conditions for admission to such courses of study.
No other provision in the Act does. It is thus clear that the Act does not
purport to deal with, regulate or provide for admission to graduate or
postgraduate medical courses.
Indeed,
insofar as postgraduate courses are concerned, the power of the Indian Medical
Council to prescribe the minimum standards of medical education is only
advisory in nature and not of a binding character. In such a situation, it
would be rather curious to say that the Regulations made under the Act are
binding upon them. The Regulations made under the Act cannot also provide for
or regulate admission to postgraduate courses in any event.
In our
view, these observations are clearly borne out from the statutory scheme of the
Indian Medical Council Act, as seen earlier.
III.
Role of States for short-listing of admissions to postgraduate courses:
As
seen earlier, so far as the field consisting of the short- listing of admission
out of eligible and duly qualified medical graduates for being admitted to
postgraduate medical courses in institutions is concerned, as the Union
Parliament has not said anything about the same, the field is wide open for the
State authorities to regulate such admissions by short-listing the available candidates
keeping in view the concept of reservation of seats as permitted by Article
15(4) of the Constitution. In the case of R. Chitralekha & Anr. vs. State
of Mysore & Ors., 1964 (6) SCR 368, a Constitution bench of this Court
while dealing with Entry 66 of List I and Article 15(4) of the Constitution of
India had to consider the question whether the State Government could prescribe
the criteria for selection of students having minimum qualifications laid down
by the university for admission to medical courses and whether it would affect
the central legislation enacted under Entry 66 of List I of the Constitution?
Answering this question in favour of the State authorities, it was observed at
page 379 of the Report by Subba Rao, J., speaking on behalf of the Constitution
bench as under :
If the
impact of the State law providing for such standards on entry 66 of List I is
so heavy or devastating as to wipe out or appreciably abridge the central
field, it may be struck down. But that is a question of fact to be ascertained
in each case. It is not possible to hold that if a State legislature made a law
prescribing a higher percentage of marks for extra-curricular activities in the
matter of admission to colleges, it would be directly encroaching on the field
covered by entry 66 of List I of the Seventh Schedule to the Constitution. If
so, it is not disputed that the State Government would be within its rights to
prescribe qualifications for admission to colleges so long as its action does
not contravene any other law. It is then said that the Mysore University Act
conferred power to prescribe rules for admission to Colleges on the University
and the Government cannot exercise that power.
It is
true that under s.23 of the Mysore University Act, 1956, the Academic Council
shall have the power to prescribe the conditions for admission of students to
the University and, in exercise of its power, it has prescribed the percentage
of marks which a student shall obtain for getting admission in medical or
engineering colleges. The orders of the Government do not contravene the
minimum qualifications prescribed by the University; what the Government did
was to appoint a selection committee and prescribe rules for selection of
students who have the minimum qualifications prescribed by the University. The
Government runs most of the medical and engineering colleges. Excluding the
State aided colleges for a moment, the position is as follows :
The
Colleges run by the Government, having regard to financial commitments and
other relevant considerations, can only admit a specific number of students to
the said Colleges. They cannot obviously admit all the applicants who have
secured the marks prescribed by the University. It has necessarily to screen
the applicants on some reasonable basis. The aforesaid orders of the Government
only prescribed criteria for making admissions to Colleges from among students
who secured the minimum qualifying marks prescribed by the University. Once it
is conceded, and it is not disputed before us, that the State Government can
run medical and engineering colleges, it cannot be denied the power to admit
such qualified students as pass the reasonable tests laid down by it. This is a
power which every private owner of a College will have, and the Government
which runs its own Colleges cannot be denied that power.
At
page 381 of the same Report, the following observations are made by the
Constitution Bench, speaking through Subba Rao, J. :
We,
therefore, hold that the Government has power to prescribe a machinery and also
the criteria for admission of qualified students to medical and engineering
colleges run by the Government and, with the consent of the management of the
Government aided colleges, to the said colleges also.
Another
decision of the Constitution bench of this Court was rendered in the case of
Chitra Ghosh & Anr. vs. Union of India & Ors., 1970 (1) SCR 413.
Grover, J., speaking for the Constitution bench observed at page 418 as under :
It is the Central Government which bears the financial burden of running the
medical college. It is for it to lay down the criteria for eligibility. From
the very nature of things it is not possible to throw the admission open to
students from all over the country. The Government cannot be denied the right
to decide from what sources the admission will be made. That essentially is a
question of policy and depends inter-alia on an overall assessment and survey
of the requirements of residents of particular territories and other categories
of persons for whom it is essential to provide facilities for medical
education. If the sources are properly classified whether on territorial,
geographical or other reasonable basis it is not for the courts to interfere
with the manner and method of making the classification.
At page
419 of the Report it has been further stated as under : The next question that
has to be determined is whether the differentia on which classification has
been made has rational relation with the object to be achieved.
The
main purpose of admission to a medical college is to impart education in the
theory and practice of medicine. As noticed before the sources from which
students have to be drawn are primarily determined by the authorities who
maintain and run the institution, e.g., the Central Government in the present
case. In Minor P.Rajendran v. State of Madras it has been stated that the
object of selection for admission is to secure the best possible material. This
can surely be achieved by making proper rules in the matter of selection but
there can be no doubt that such selection has to be confined to the sources
that are intended to supply the material. If the sources have been classified
in the manner done in the present case it is difficult to see how that
classification has no rational nexus with the object of imparting medical
education and also of selection for the purpose.
In the
case of State of Andhra Pradesh & Anr. vs.
Lavu
Narendranath & Ors.etc., 1971(1) SCC 607, a four Judge bench of this Court
had to consider whether the entrance test prescribed by the Government for
short-listing eligible candidates for being admitted to medical courses in
colleges was legally permissible or not. Upholding the power of the State
Government on the anvil of the Constitution, Mitter, J., speaking on behalf of
the four Judge bench held that :
Merely
because the University had made regulations regarding the admission of students
to its degree courses, it did not mean that any one who had passed the
qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be
entitled to admission to such courses of study. If the number of candidates
applying for such admission far exceeds the number of seats available the
University can have to make its choice out of the applicants to find out who
should be admitted and if instead of judging the candidates by the number of
marks obtained by them in the qualifying examination the University thinks fit
to prescribe another test for admission no objection can be taken thereto. What
the University can do in the matter of admissions to the degree courses can
certainly be done by the Government in the matter of admission to the M.B.B.S.
course. 9. In our view the test prescribed by the Government in no way
militates against the power of Parliament under Entry 66 of List I of the
Seventh Schedule to the Constitution. The said entry provides :
Co-ordination
and determination of standards in institutions for higher education or research
and scientific and technical institutions.
The
above entry gives Parliament power 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 has no relation to a test prescribed by a 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 even if it be for higher
education in any particular subject.
Similar
observations were found in para 15 of the Report, wherein it was observed that
: .The University Act, as pointed out, merely prescribed a minimum
qualification for entry into the higher courses of study.
There
was no regulation to the effect that admission to higher course of study was
guaranteed by the securing of eligibility. The Executive have a power to make
any regulation which would have the effect of a law so long as it does not
contravene any legislation already covering the field and the Government order
in this case in no way affected the rights of candidates with regard to
eligibility for admission : the test prescribed was a further hurdle by way of
competition when mere eligibility could not be made the determining factor.
The
aforesaid observations of the four Judge bench, in our view, correctly bring
out the permissible scheme of short-listing of eligible candidates in the light
of the relevant provisions with which we are concerned. In the case of Dr.
Ambesh Kumar vs. Principal, L.L.R.M.Medical College, Meerut & Ors., 1986
(Supp) SCC 543, a two Judge bench of this court had to consider the question whether
out of the eligible candidates qualified for being considered for admission to
medical education imparted in medical colleges of the State, looking to the
limited number of seats available, the State could resort to the process of
weeding out by laying down further criteria for short-listing such candidates.
Upholding such an exercise undertaken by the State in the light of the relevant
provisions of the Constitution, B.C.Ray, J., speaking for the court, made the
following observations at pages 544 and 545 of the Report as under : The State
Government can in exercise of its executive power under Article 162 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 was 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. The order in question merely specified a further eligibility
qualification for being considered for selection for admission to the
postgraduate courses (degree and diploma) in the Medical Colleges in the State
in accordance with the criteria laid down by Indian Medical Council. The number
of seats for admission to various postgraduate courses both degree and diploma
in Medical Colleges is limited and a large number of candidates apply for
admission to these courses of study. In such circumstances the impugned order
cannot be said to be in conflict with or repugnant to or encroach upon the
Regulations framed under the provisions of Section 33 of the Indian Medical
Council Act. On the other hand by laying down a further qualification of
eligibility it promotes and furthers the determination of standards in
institutions for higher education.
In
this connection, we may also refer to a later Constitution bench Judgment of
this Court in Indra Sawhney & Ors. vs. Union of India & Ors., (supra).
As noted earlier, judgment of this Court in Kumari Nivedita Jains case (supra)
was approved therein. Jeevan Reddy, J., speaking on behalf of the Constitution
bench, at page 751 of the Report in para 837 has referred to, with approval,
the observations of this Court in State of Madhya Pradesh vs.
Kumari
Nivedita Jain, (Supra) to the effect that admission to medical courses was
regulated by an entrance test for general candidates, the minimum qualifying marks
were 50% in the aggregate and 33% in each subject. For SC/ST candidates,
however, it was 40% and 30% respectively. The said deviation was upheld in
Kumari Nivedita Jains case (supra) and the same was also approved by the
Constitution Bench in the aforesaid decision. In this connection, we may also
usefully refer to the relevant observations in the case of State of Madhya
Pradesh & Anr. vs. Kumari Nivedita Jain & Ors. (supra) which got
imprimatur of the Constitution bench of this court in Indra Sawhneys case
(supra). At page 751 of the Report in Indra Sawhneys case (supra), the
following pertinent observations are found in the majority judgment wherein
Jeevan Reddy, J., in paragraph 837 of the Report observed as under :
Having
said this, we must append a note of clarification. In some cases arising under
Article 15, this Court has upheld the removal of minimum qualifying marks, in
the case of Scheduled Caste/Scheduled Tribe candidates, in the matter of
admission to medical courses. For example, in State of M.P. v. Nivedita Jain
admission to medical course was regulated by an entrance test (called
Pre-Medical Test).
For
general candidates, the minimum qualifying marks were 50% in the aggregate and
33% in each subject. For Scheduled Caste/Scheduled Tribe candidates, however,
it was 40% and 30% respectively. On finding that Scheduled Caste/Scheduled
Tribe candidates equal to the number of the seats reserved for them did not
qualify on the above standard, the Government did away with the said minimum
standard altogether. The Governments action was challenged in this Court but
was upheld. Since it was a case under Article 15, Article 335 had no relevance
and was not applied. But in the case of Article 16, Article 335 would be
relevant and any order on the lines of the order of the Government of Madhya
Pradesh (in Nivedita Jain) would not be permissible, being inconsistent with
the efficiency of administration.
To
wit, in the matter of appointment of Medical Officers, the Government or the
Public Service Commission cannot say that there shall be no minimum qualifying
marks for Scheduled Caste/Scheduled Tribe candidates, while prescribing a
minimum for others. It may be permissible for the Government to prescribe a
reasonably lower standard for Scheduled Castes/Scheduled Tribes/Backward
Classes - consistent with the requirements of efficiency of administration - it
would not be permissible not to prescribe any such minimum standard at all.
While prescribing the lower minimum standard for reserved category, the nature
of duties attached to the post and the interest of the general public should
also be kept in mind.
In
para 20 of the Report in the case of State of Madhya Pradesh & Anr. vs.
Kumari Nivedita Jain & Ors. (supra) the following pertinent observations
are found :
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. We have earlier indicated what are
the purposes of this Act.
Sub-sections
(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- sections
(j), (k) and (l) relate to post-admission stages and the period of study after
admission in Medical Colleges. Sub-section (m) of Section 33 relates to a
post-degree stage. Sub-section (n) of Section 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 & Kashmir 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.
The
aforesaid observations are also well borne out from the scheme of the Indian
Medical Council Act to which we have made a detailed reference earlier. But
even apart from that, once these observations have been approved by a
Constitution Bench of nine learned Judges of this Court, there is no scope for
any further debate on this aspect in the present proceedings.
We may
now refer to a two Judge Bench decision of this Court in Dr. Sadhna Devi &
Ors. vs. State o f U.P. & Ors., 1997(3) SCC 90. The court was concerned
with the short-listing of eligible candidates who have got basic qualification
for admission to postgraduate medical courses.
Reservation
of seats for SC and ST candidates in postgraduate courses was not challenged
but providing zero percent marks for them for passing the entrance examination
for admission to postgraduate course was questioned before the Bench. It was
held that once minimum qualifying marks for passing the entrance examination
for admission to postgraduate courses was a pre- requisite, in the absence of
prescription of any minimum qualifying marks for reserved category of
candidates, admitting such students who did not get any marks at the entrance
test amounted to sacrificing merit and could not be countenanced. In para 21 of
the Report, the following observations are made: In our view, the Government
having laid down a system for holding admission tests, is not entitled to do
away with the requirement of obtaining the minimum qualifying marks for the
special category candidates. It is open to the Government to admit candidates
belonging to the special categories even in a case where they obtain lesser
marks than the general candidates provided they have got the minimum qualifying
marks to fill up the reserved quota of seats for them.
A
cursory reading of these observations seems to indicate that once the minimum
qualifying marks are prescribed for otherwise eligible candidates for
short-listing them for admission to postgraduate courses, minimum qualifying
marks prescribed for general category candidates and reserved category
candidates must be uniform.
But
then follows para 22 which relies on the decision of this court in State of
Madhya Pradesh vs. Kumari Nivedita Jain (supra) wherein prescription of lesser
minimum qualifying marks in the entrance test for SC,ST and Other Backward
Class candidates as compared to the minimum qualifying marks for general
category candidates was approved. Even in earlier para 18 it is observed that
if in the entrance test special category candidates obtain lesser marks than
general category candidates even then they will be eligible for admission
within their reserved quota.
These
observations indicate that for reserved category of candidates there can be
separate minimum qualifying marks.
Thus,
on a conjoint reading of observations in paras 18, 21 and 22 of the Report it
has to be held that the ratio of the decision in Sadhna Devis case (supra) is
that even for reserved category candidates there should be some minimum
qualifying marks if not the same as prescribed as bench marks for general
category candidates. Thus, there cannot be any zero qualifying marks for
reserved category candidates in the entrance test for admission to postgraduate
courses. Hence, this judgment cannot be taken to have laid down that there
cannot be lesser qualifying marks for reserved category candidates as compared
to the general category candidates who are otherwise eligible and qualified for
being considered for admission to postgraduate medical courses. That takes us
to the consideration of a three Judge Bench decision of this Court in
Postgraduate Institute of Medical Education & Research, Chandigarh &
Ors., vs. K.L. Narasimhan & Anr., 1997 (6) SCC 283.
Ramaswamy,
J., speaking for the Bench had mainly to consider two questions; 1) whether
there can be reservation under Articles 15(4) and 16(4) of the Constitution in
connection with only one post in a discipline; and 2) whether reservation of
seats in postgraduate courses was permissible as per Articles 14, 15 and 16 of
the Constitution. Both the aforesaid questions were answered in the affirmative
in favour of the schemes of reservations. So far as the question of reservation
of seats when there is only one post in the discipline is concerned, decision
rendered thereon by the three Judge Bench is expressly overruled by a
Constitution Bench judgment of this Court in Postgraduate Institute of Medical
Education & Research, Chandigarh vs. Faculty Association & Ors.,
1998(4) SCC 1. However, so far as the second question is concerned, in the
aforesaid judgment it was held that there can be reservation of seats in
postgraduate courses as per the mandate of Articles 15(4) and 16(4). In the
present proceedings, there is no dispute on this score. Hence the said judgment
on the second point is not required to be reconsidered. However, certain
observations are found in para 21 of the report wherein Ramaswamy, J., has
observed that diluting of minimum qualifying marks in an entrance test for
entry into postgraduate courses for reserved category of candidates cannot be
said to be unauthorised or illegal. It has been observed that: Equally, a
student, admitted on reservation, is required to pass the same standard
prescribed for speciality or a superspeciality in a subject or medical science
or technology. In that behalf, no relaxation is given nor sought by the
candidates belonging to reserved categories. What is sought is a facility or
opportunity for admission to the courses, Ph.D., speciality or superspeciality
or high technology by relaxation of a lesser percentage of marks for initial
admission than the general candidates. For instance, if the general candidate
is required to get 80% as qualifying marks for admission into speciality or
superspeciality, the relaxation for admission to the reserved candidates is of
10 marks less, i.e., qualifying marks in his case would be 70%. A doctor or a
technologist has to pass the postgraduation or the graduation with the same
standard as had by general candidate and has also to possess the same degree of
standard. However, with the facility of possessing even lesser marks the
reserved candidate gets admission.
Now,
so far as these observations are concerned, as the court was not called upon to
consider the question whether prescription of lesser qualifying marks for SC,ST
and other reserved category candidates for admission to postgraduate or super
speciality courses in medicine was permissible, they are clearly obiter. So far
as admission to super speciality courses are concerned, in the present
reference we are not concerned with the said question, hence, we need not say
anything about the same. However, so far as admission to postgraduate courses
is concerned the question of providing of lesser qualifying marks for reserved
category candidates for admission to these courses directly arises for our
consideration. Hence, the obiter observations in the aforesaid case on this
aspect do require consideration for their acceptance or otherwise. As per the
scheme of Entry 66 of List I and Entry 25 of List III of the Seventh Schedule
of the Constitution of India, as discussed earlier goes, it is not possible to
countenance the submission of Shri Salve, learned senior counsel for the
Medical Council of India and other counsel canvassing the same view that the
question of short-listing of eligible candidates who were otherwise duly
qualified for being admitted to postgraduate courses in Medicine is not within
the domain of State authorities especially in view of the fact that the
Parliament, in exercise of its legislative powers under Entry 25 of List III,
has still not spoken on the point nor does the Indian Medical Council Act, 1956
enacted under Entry 66 of List I covers this question.
Hence,
while providing for entrance test as an additional requirement for eligible
candidates for being short-listed in connection with admission to smaller
number of seats available in postgraduate courses, it cannot be said that the
State authorities in exercise of their constitutional right under Article 15(4)
cannot give additional facilities to reserved category of candidates vis-a-vis
their requirement of getting minimum qualifying marks at such entrance tests so
that seats reserved for them may not remain unfilled and the reserved category
of candidates do get adequate opportunity to fill them up and get postgraduate
education on the seats reserved for them which in their turn would not detract
from the availability of remaining seats for general category candidates. Thus,
the observations in para 21 of the aforesaid judgment that there can be lesser
qualifying marks for admission to postgraduate courses for reserved category of
candidates cannot be found fault with. It is made clear that similar
observations for admission to super speciality courses and the relaxation of
minimum qualifying marks for candidates appearing at the entrance test for such
courses are not being approved by us as we are not required to consider that
aspect of the matter, as noted earlier. As it will be presently shown, once
reservation of seats in postgraduate courses under Article 15(4) is accepted
then even lesser bench marks being prescribed for reserved category of
candidates in the common entrance examination which they undertake along with
general category of candidates would in substance make no difference so far as
the un-reserved seats available to general category of candidates are
concerned. In a later three Judge Bench Judgment of this Court in Medical
Council of India vs. State of Karnataka & Ors., 1998(6) SCC 131, it was held
that in the light of Sections 10-A, 10-B, 10-C, 19-A and 33(fa), (fb), (fc),
(j), (k) and (l) of the Indian Medical Council Act, 1956 fixation of admission
capacity in medical colleges/institutions is the exclusive function of Medical
Council of India and increase in number of admissions can only be directed by
the Central Govt. on the recommendation of the Medical Council of India. This
function of the Medical Council of India was upheld in the light of Entries 66
List I and 25 of List III thereof. Now it becomes at once obvious that
providing for number of seats to be filled up by eligible candidates in any
medical course imparted by medical colleges or medical institutions will have a
direct nexus with coordination and determination of standards in medical education,
as larger the seats in medical colleges wherein students can be admitted to
MBBS or even higher courses in medicine, larger infrastructure would be
required by way of beds and eligible and efficient teachers and all other
infrastructure for imparting proper training to the admitted students. Once
this exercise is clearly within the domain of the Medical Council of India in
the light of the aforesaid statutory provisions it becomes obvious that Entry
66 of List I of the Seventh Schedule would hold the field and consequently
States will not be empowered under entry 25 of List III to legislate on this
topic as such an exercise would be subject to legislation under Entry 66 of
List I which would wholly occupy the field. However, a moot question remains whether
given the permissible intake capacity for admitting students in any medical
college as laid down by the Medical Council of India can the available intake
capacity of students be regulated at the admission stage when the number of
eligible candidates aspiring to be admitted is larger than the available intake
capacity? This question will remain outside the domain of the Medical Council
of India under the aforesaid Act. As we have discussed earlier, there being no
parliamentary legislation on this aspect even under entry 25 of List III of the
Seventh Schedule, the short-listing of eligible candidates for being admitted
to the available permitted intake capacity in medical colleges will obviously
remain in the domain of State legislature and State executive on the combined
reading of entry 25 of List III as well as Article 162 of the Constitution of
India. In view of the aforesaid discussion, it therefore, becomes clear that
once seats in postgraduate medical courses are reserved for SC, ST and OBC candidates
as per Article 15(4) of the Constitution the question as to how admission to
limited number of general seats and reserved seats are to be regulated will
remain in the domain of the State authorities running these institutions. They
can, therefore, legitimately resort to the procedure of short-listing of
otherwise eligible candidates. While undertaking this exercise of
short-listing, the state authorities have to see how best in a given academic
year the reserved seats and general category seats can be filled in by
available and eligible candidates. The question is while undertaking the task
of short-listing of available eligible candidates vis-a-vis limited number of
seats that may be available for being filled in in a given academic year,
uniform qualifying bench marks for passing the entrance test should be
prescribed for both the general category candidates as well as reserved
category candidates or there can be lesser bench marks for the latter category
of students. If due to non-availability of reserved category candidates who
could obtain minimum qualifying marks prescribed for all the examinees whether
there can be any legitimate dilution of minimum qualifying marks for these
reserved category of question. candidates and if so, to what extent is the moot
In the case of M.R. Balaji & Ors. vs. State of Mysore,@@
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 1963 Supp.(1) SCR
439, a Constitution bench of this court was concerned with the extent of
reservation which could be legally permissible under Article 15(4) of the
Constitution of India. Gajendragadkar, J., speaking for the Constitution bench
held that reservation of 68% seats in educational institutions was inconsistent
with the concept of special provision authorised by Article 15(4). It was then
observed as under : Reservation should and must be adopted to advance the
prospects of weaker sections of society, but while doing so, care should be
taken not to exclude admission to higher educational centres of deserving and
qualified candidates of other communities. Reservations under Arts.15 (4) and
16(4) must be within reasonable limits.
The
interests of weaker sections of society, which are a first charge on the States
and the Centre, have to be adjusted with the interests of the community as a
whole.
Speaking
generally and in a broad way, a special provision should be less than 50%. The
actual percentage must depend upon the relevant prevailing circumstances in
each case.
The
object of Art.15(4) is to advance the interests of the society as a whole by
looking after the interests of the weaker elements in society. If a provision
under Art.15(4) ignores the interests of society, that is clearly outside the
scope of Art.15(4). It is extremely unreasonable to assume that in enacting Art.15(4),
Parliament intended to provide that where the advancement of the backward
classes or the Scheduled Castes and Tribes were concerned, the fundamental
rights of the citizens constituting the rest of the society were to be
completely and absolutely ignored.
Considerations
of national interest and the interests of the community and the society as a
whole have already to be kept in mind.
Thus,
even accepting that when seats are reserved for SC and ST and Other Backward
Classes for admission to be given to such reserved category of eligible
candidates in postgraduate medical courses, the concession or facility given to
them cannot exceed 50% of the facility otherwise available to members of the
general public. Keeping the aforesaid ratio of the Constitution Bench in view,
therefore, even proceeding on the assumption that 50% of the available seats in
postgraduate medical courses in a given year may be reserved for SC,ST and
OBCs, further concession that may be given to them by State authorities by
diluting the minimum qualifying marks at the entrance test so that seats
reserved for them may not remain unfilled by the reserved categories of persons
for whom they are meant, the dilution of such marks cannot exceed 50% of the
general standards of qualifying bench marks laid down for the general
categories of candidates. Otherwise even the said dilution would become
unreasonable and would be hit by Articles 14 and 15(1) of the Constitution of
India. In the case of Minor P. Rajendran vs. State of Madras & Ors., 1968
(2) SCR 786, another Constitution bench of this court had to consider whether
district-wise distribution of reserved seats in medical courses for granting
admission to reserved category of candidates was violative of Article 15 (1)
read with Article 14 of the Constitution of India.
Answering
the question in the affirmative it was observed by Wanchoo, J., speaking for
the Constitution bench at pages 792 and 793 of the Report as under : The object
of selection can only be to secure the best possible material for admission to
colleges subject to the provision for socially and educationally backward
classes. Further whether selection is from the socially and educationally
backward classes or from the general pool, the object of selection must be to
secure the best possible talent from the two sources. If that is the object, it
must necessarily follow that that object would be defeated if seats are
allocated district by district. It cannot be and has not been denied that the
object of selection is to secure the best possible talent from the two sources
so that the country may have the best possible doctors.
Relying
on these observations of the Constitution bench Shri P.P. Rao and Shri
Chaudhary, learned senior counsel appearing for the State of Madhya Pradesh,
submitted that when there is a pool of eligible candidates who have all passed
MBBS examination and are duly qualified and eligible to pursue postgraduate
medical courses of study, and if in a given institution there are seats
reserved for them then the selection out of the reserved category candidates
for filling up of these reserved posts can be done in a selective manner and
that would permit reasonable dilution of the uniform qualifying marks at the
entrance test as required to be obtained by the examinees concerned.
This
submission is amply borne out from the aforesaid observations of the
Constitution bench decision of this court. However, a further question survives
as to whether in diluting the minimum qualifying marks for reserved category of
candidates who are otherwise eligible for being admitted to postgraduate
courses on the seats reserved for them, whether Article 335 can get attracted.
It is of course true that candidates appointed or admitted to postgraduate
medical course have to work as registrars, some posts of the registrars are
fully paid posts while others may be stipendary residents posts. However, it is
not possible to accept the contention of learned counsel for the Special Leave
Petitioners that admission to postgraduate courses would amount to recruitment
to any posts. Concept of recruitment to posts is entirely different from the
concept of admission to the course of study which in its turn may require the
students concerned to take practical training by functioning as registrars
attached to wards where patients are treated. Even though such students work as
registrars during the course of study as postgraduate students, they
essentially remain students and their working as registrars would be a part of
practical training. They would all the same remain trainee registrars and not
as directly recruited registrars through any recruitment process held by the
Public Service Commission for filling up full-fledged medical officers posts.
They work as registrars as a part of postgraduate educational training only
because they are admitted to the course of study as postgraduate students in
concerned disciplines. It is easy to visualise that calling for applications
from open market by advertisement for appointment of full-fledged medical
officers to be recruited through the process of selection to be undertaken by
Public Service Commission or other departmental selection committees will stand
entirely on a different footing as compared to the process of admitting
eligible students to postgraduate medical courses of studies. Thus, keeping in
view the nature of working as trainee registrars by admitted students to
postgraduate medical courses it cannot be said that such admitted students are
recruited to any posts of registrars.
Consequently,
Article 335 of the Constitution of India which has relevance while considering
reservation of posts under Article 16(4) cannot have any direct impact on
reservation of seats in educational institutions as permitted under Article
15(4). Learned counsel for the petitioners had invited our attention to a
decision of two Judge bench of this Court in S. Vinod Kumar & Anr. vs.
Union of India & Ors., 1996(6) SCC 580, wherein it was held that while
providing for reservations to posts in the hierarchy by invoking powers under
Article 16(4), making a provision for lower qualifying marks or lesser level of
evaluation for members of reserved category was impermissible on account of
Article 335 of the Constitution of India. The aforesaid decision obviously
cannot be pressed in service while considering the question of giving
facilities to reserved category of candidates for being admitted to the seats
reserved for them in educational institutions wherein they can undertake
courses of studies for ultimately obtaining postgraduate degrees in medicine.
In the case of Ajay Kumar Singh & Ors. vs. State of Bihar &
Ors.(supra), this aspect of the matter has been correctly highlighted by Jeevan
Reddy, J., speaking for the court in para 14 of the Report.
It has
been held therein that : We see absolutely no substance in the third submission
of Shri Singh. The argument taxes ones credulity. We are totally unable to
appreciate how can it be said that admission to postgraduate medical course is
a promotional post just because such candidate must necessarily pass MBBS
examination before becoming eligible for admission to postgraduate medical
course or for the reason that some stipend - it is immaterial whether Rs.1000
or Rs.3000 p.m. - is paid to postgraduate students. Admission to such course cannot
be equated to appointment to a post and certainly not to an appointment by
promotion. The argument is accordingly rejected.
(Emphasis
supplied) It is obvious that only because a person who has passed MBBS
examination and is made eligible for admission to postgraduate course is paid
stipend during the course of his studies at postgraduate level, he cannot be
said to have been appointed to the post of a registrar. It may be that he has
to work as a trainee registrar during the course of his study to obtain
practical training but that is a part of the curriculum of studies and not
because he is appointed to the post of the registrar after undergoing selection
process whereunder a person from open market is recruited as a medical officer
and whose recruitment as medical officer would be subject to rules and
regulations and would not terminate only because his training period is over.
In fact such a full-fledged medical officer has no training period.
He has
if at all probation period. In case of a trainee registrar who has to work as
such during the course of his studies as a postgraduate student on the other
hand, his work as registrar would be co-terminus with his passing the
postgraduate examination as M.D. or M.S./M.D.S. as the case may be. He is also
not liable to be transferred as a full-fledged registrar, duly appointed as
such, is liable to be transferred due to exigencies of service. Thus, the
working of such students during the course of study as residents whether on
full payment or on stipendary payment would make no difference and they cannot
be said to be holding any civil post in any hospital as full- fledged medical
officers. Consequently, Article 335 of the Constitution of India cannot by
itself be applied for regulating the admission of eligible reserved category
students to postgraduate medical courses in the seats reserved for them under
Article 15(4) of the Constitution of India. The next question that falls for
consideration that even assuming that Article 335 cannot be pressed in service
while considering the question of admission of eligible and qualified
candidates for enabling them to pursue courses of postgraduate medical studies
the guidelines laid down by the Medical Council of India pursuant to the
regulations made under Section 33 of the Indian Medical Council Act, even
though persuasive in nature and not mandatory, can be totally by-passed or
ignored by the State authorities concerned with short-listing of candidates for
admission to limited seats available in medical institutions imparting
postgraduate medical education? The answer obviously would be in the negative.
The guidelines laid down by the Medical Council of India though persuasive have
to be kept in view while deciding as to whether the concession or facility to
be given to such reserved category of candidates should remain within the
permissible limits so as not to amount to arbitrary and unreasonable grant of
concessions wiping out the concept of merit in its entirety. Consequently, it
cannot be said that even though short-listing of eligible candidates is
permissible to the State authorities, while doing so, the State authorities can
completely give a go-by to the concept of merit and can go to the extent of
totally dispensing with qualifying marks for SC,ST and OBC candidates and can
short-list them for being considered for admission to reserved categories of
seats for them in postgraduate studies by reducing the qualifying marks to even
zero. That was rightly frowned upon by this court in Sadhana Devis case (supra)
as that would not amount to short-listing but on the contrary would amount to
completely long listing of such reserved category candidates for the vacancies
which are reserved for them and on which they would not be entitled to be
admitted if they did not qualify according to even reduced bench marks or
qualifying marks fixed for them. As seen earlier, keeping in view the ratio of
the Constitution bench of this court in M.R. Balajis case (supra) it must be
held that along with the permissible reservation of 50% of seats for reserved
category of candidates in institutions imparting postgraduate studies,
simultaneously if further concessions by way of facilities are to be given for
such reserved category of candidates so as to enable them to effectively occupy
the seats reserved for them, such concessions by way of dilution of qualifying
marks to be obtained at the entrance test for the purpose of short-listing, can
also not go beyond the permissible limits of 50% of the qualifying marks
uniformly fixed for other candidates belonging to general category and who
appear at the same competitive test along with the reserved category of
candidates. It is found from the records of these cases that qualifying marks
at the entrance test for general category of candidates are fixed at 50%. In
fact such is the general standard of qualifying marks suggested by the Medical
Council of India even at the stage of entrance examination to MBBS course which
is at the gross-root level of medical education after a student has completed his
secondary education. Thus it would be proper to proceed on the basis that
minimum qualifying marks for clearing the entrance test by way of short-listing
for getting admitted to postgraduate medical courses uniformly for all
candidates who appear at such examination should be 50% but so far as reserved
category of candidates are concerned who are otherwise eligible for competing
for seats in the postgraduate medical courses, 50% reduction at the highest of
the general bench marks by way of permissible concession would enable the State
authorities to reduce the qualifying marks for passing such entrance
examination up to 50% of 50% i.e. 25%. In other words, if qualifying marks for
passing the entrance examination for being admitted to postgraduate medical courses
is 50% for a general category candidate, then such qualifying marks by way of
concession can be reduced for reserved category candidates to 25% which would
be the maximum permissible limit of reduction or deviation from the general
bench marks. Meaning thereby, that a reserved category candidate even if gets
25% of the marks at such a common entrance test he can be considered for being
admitted to the reserved vacancy for which he is otherwise eligible. But below
25% of bench marks for reserved category of candidates, no further dilution can
be permitted. In other words, concession or facility for reserved category of
candidates can remain permissible under Article 15(4) up to only 50% of bench
marks prescribed for general category candidates. The State cannot reduce the
qualifying marks for a reserved category of candidate below 25% nor can it go
up to zero as tried to be suggested by Shri P.P.Rao, learned senior counsel for
the State of Madhya Pradesh as that would not amount to the process of short-listing
but would in fact amount to long listing or comprehensive listing of such
reserved category of candidates as seen earlier. Any such attempt to further
dilute the qualifying marks or bench marks for reserved category of candidates
below 25% of the general passing marks would be violative of the provisions of
Article 15(4) as laid down by the Constitution Bench in M.R.Balajis case
(supra) and would also remain unreasonable and would be hit by Article 14 of
the Constitution of India. Within this sliding scale of percentages between 25%
and 50% passing marks appropriate bench marks for passing the entrance test
examination can be suitably fixed for SC/ST and OBC candidates as exigencies of
the situation may require. But in no case the qualifying marks for any of these
reserved categories of students can go below 25% of the general passing marks.
Any reserved category candidate who gets less than 25% of marks at the entrance
examination or less than prescribed reduced percentage of marks for the
concerned category between 50% and 25% of passing marks cannot be called for
counselling and has to be ruled out of consideration and in that process if any
seats reserved for reserved categories concerned remains unfilled by candidates
belonging to that category it must go to the general category and can be filled
in by the general category candidate who has already obtained 50% or more marks
at the entrance examination but who could not be accommodated because of lesser
percentage of marks obtained by him qua other general category candidates in
the limited number of seats available to them in a given institution in
postgraduate studies. As we will presently show even if minimum passing marks
in the entrance test for admission to postgraduate courses is either reduced to
25% uniformly for all the candidates or is reduced and diluted only for
reserved category of candidates, the net result would remain substantially the
same. This aspect can be highlighted by taking an illustration. Suppose there
are six seats in a given postgraduate medical course. Then applying the ratio
of 50% permissible reservation of seats for reserved category of candidates
like SC/ST and OBCs three seats get reserved, one each for SC,ST and OBC while
three seats will remain available to general category of candidates passing the
common entrance test. On the basis of this illustration let us take a
hypothetical case of 13 eligible candidates who have passed basic MBBS
examination and are duly qualified to compete for the six seats in a given course
of postgraduate study. These 13 candidates undertake the same entrance test and
all of them as a result of the said test obtained marks as under : A 75 out of
100, B 70, C(SC) 65, D 60, E(SC) 55, F51, G50, H(OBC) 48, I 42, J(ST) 40, K35,
L30, M25, N (SC) 21. In the aforesaid illustration C, E and N are SC
candidates, H is OBC and J is a ST candidate. Now if 50% passing marks are
uniformly applied to all of them as tried to be suggested by learned counsel
for the petitioners, the following picture will emerge : Situation No.1: Seat
numbers 1,2, and 3 are general seats, 4 reserved for SC, 5 reserved for ST and
6 reserved for OBC. If 50% passing marks are uniformly applied to seat
nos.1,2,3,4,5 & 6 : Seat no.1 will go to A, 2 to B, 3 to C (SC), 4 to E (SC),
seat nos.5&6 will not get filled in by the reserved category candidates as
there are no ST or OBC candidates who have obtained 50% and more marks. These
two seats which remain unfilled will go to D and F general category candidates
who have obtained more than 50% marks, but who could not be accommodated in the
seats available to general category of candidates as the last candidate in the
general category who got admission though SC, was having 65% marks.
Thus
the situation would be the two seats i.e. seat nos. 5 and 6 which are reserved
for ST and OBC and were otherwise not available to general category of
candidates would not go to eligible and qualified ST and OBC candidates namely,
H and J even though they had obtained MBBS degrees and had the basic qualification
and eligibility for being admitted to the seats reserved for them. That may
affect the real purpose underlying reservation under Article 15(4).
Situation
No.2: We may now take the alternative situation for consideration : If the
minimum qualifying marks are reduced to 25% for all categories of candidates to
the rock-bottom permissible limit including SC/ST and other reserved category
candidates, then the following picture would emerge : Seat no.1 will go to A,
seat no.2 will go to B, seat no.3 will go to C(SC), seat no.4 which is reserved
for SC candidate will go to E, seat no.5 which is reserved for ST will go to J,
seat no.6 which is reserved for OBC will go to H. All six seats will be filled
up by A,B, C,E,J & H. Thus even if the minimum passing marks are uniformly
reduced to 25% which is the permissible rock- bottom as seen earlier the
general category candidates will get the same seats which would have been
available to them even if the minimum qualifying marks for admission would have
been uniformly kept at 50% for all candidates at the entrance test. But what
will happen is, that by reduction of these qualifying marks to 25% all the
reserved category seats 4 to 6 will get filled in by otherwise eligible and
qualified reserved category candidates E,J and H and there will remain no
occasion for making any of such seats available to left out general category
candidates like D and F for whom they were not meant even otherwise and
reservation of seats under Article 15(4) would get fully fructified.
Situation
no.3: Now let us assume that for general category candidates minimum passing
marks at the entrance test are kept at 50% but for reserved category candidates
the passing marks are reduced to the permissible rock-bottom limit of 25%. If
that happens, the result would remain the same, namely, as found in situation
no.2, i.e. A will be admitted to seat no.1, B will be admitted to seat no.2, C
(SC) will be admitted to seat no.3, E will be admitted to seat no.4 reserved
for SC, J will be admitted to seat no.5 reserved for ST and H will be admitted
to seat no.6 reserved for OBC. Then the net result would be that because of the
limited deviation of minimum qualifying marks only for reserved category
candidates, E, J & H who would have otherwise been admitted to reserved
category seats even if there was universal and uniform reduction of qualifying
marks at 25%, will get the same benefit without affecting the admission of
general category candidates. Situation No.4: As minimum qualifying marks for
reserved category of candidates are kept at 25% and are not reduced below the
same, candidate N who is a SC candidate and who has obtained only 21% passing
marks at the entrance test will be totally ruled out of consideration, but even
if the qualifying marks are reduced to below the permissible limit of 25%, N
will not get any seat as the seat reserved for such candidates is only one
being no. 4 in the said course of study and is already occupied by E who is a
more meritorious SC candidate qua N. Situation No.5: Now let us consider a
situation wherein E a SC candidate, who is entitled to reserved category seat
no.4 and has excluded D who is a general category candidate who has obtained
more marks than him because of such permissible reservation of a seat for him,
for any reason does not join the course of study and his seat becomes vacant,
then in such a situation, the following picture may emerge in different
categories of cases where minimum passing marks are fixed differently : i) In
case E is not available and 50% minimum passing marks are fixed for all
categories of candidates then seat no.1 will go to A, seat no.2 will go to B.,
seat no.3 will go to C, seat no.4 would not go to N who is the next eligible SC
candidate who has qualified for being admitted but has got less than passing
marks at the entrance test. That seat will remain unoccupied and will go to the
general category candidate D.
Seat
no.5 which is reserved for ST person also cannot go to J as he has got less
than the passing marks. Seat no.5 will therefore, go to F. Seat no.6 reserved
for OBC also will not go to H as he has got only 48% marks, less than the
minimum passing marks. His seat will go to general category candidates who are
in the waiting list and will be offered to G who has just got the passing
marks. Thus in the absence of availability of E the six seats will go as under
: A,B,C,D,F & G. Thus all the reserved category seats will remain unfilled
by reserved category candidates and will be added to general category seats.
Result will be reservation under Article 15(4) will totally fail. ii) Now let
us take another category of situation where minimum passing marks are fixed at
25% for all candidates. In that case even if E is not available then the first
three general category seats will go to A,B,C and the 4th seat reserved for SC
candidate will remain unfilled as the next available eligible SC candidate is N
who has got less than 25% minimum marks. So his seat will go to the general
category candidate who is in the waiting list namely, D. While seat no.4
reserved for ST candidate will go to J and seat no.6 reserved for OBC candidate
will go to H. Therefore, the net result will be as under : 1 to 6 seats will go
to A,B,C,D,J & H. iii) The same result would follow for general category
candidates even if the minimum passing marks are fixed at 50% and for the
reserved category candidates the minimum qualifying marks are reduced to 25%.
Then the first three seats will go to A,B,C, and seat no.4 not occupied by E a
SC candidate cannot go to N the next SC candidate who has got less than 25%
marks. It will be occupied by D from the general category candidates. While
seat no.5 will go to J a ST candidate who has more than 25% marks and seat no.6
will go to H who is a OBC candidate having got 48% marks. Thus the six seats
will go to A,B,C,D,J & H. Thus it is clear that where the minimum passing
marks are uniformly reduced for all candidates or they are reduced only for
backward class candidates but to the same extent, the result regarding
occupation of these seats by general category candidates and reserved
candidates would remain the same if E does not occupy the seat available to him
as an SC candidate. iv) If for any reason the minimum qualifying marks for
reserved category candidates are still further reduced to 20% then in the
absence of availability of a SC candidate E, the next SC candidate N having 21%
may get it and occupy the seat reserved for a SC candidate. In such a situation
the following picture will emerge : 1 to 3 will go to A,B,C; seat no.4 reserved
for SC candidate will go to N and seat no.5 will go to ST candidate J and seat
no.6 reserved for OBC candidate will go to H. Resultantly no seat will be left
for being made available to general category candidate D and he will get
excluded. But as we have seen earlier, if concession or dilution of minimum
qualifying marks at the entrance test for admission to postgraduate medical
courses is kept within the permissible limit of 50% dilution and can go down
only up to 25% minimum qualifying marks for reserved category candidates then N
in no case would get in to displace D who is a general category candidate and
who had an opportunity to get in vis-a-vis the seat reserved for SC candidate
as E the eligible SC candidate is not available at a given point of time. The
aforesaid illustration shows that as C (SC candidate) has got the seat in
general category on his own merit his occupancy is not to be considered while
granting admission to the seat reserved for SC candidate as held by a
Constitution bench decision of this Court in R.K. Sabharwal & Ors. vs.
State of Punjab & Ors., 1995(2) SCC 745. We may at this stage refer to
decision of a three Judge bench of this court in Dr. Pradeep Jain & Ors.
vs. Union of India & Ors., 1984(3) SCC 654, wherein in the context of
reservation in medical education courses on the basis of territorial or
institutional preference, Bhagwati, J., speaking for the court in para 22 of
the Report observed as under : But as far as admissions to postgraduate
courses, such as MS, MD and the like are concerned, it would be eminently
desirable not to provide for any reservation based on residence requirement
within the State or on institutional preference.
There
the excellence cannot be compromised by any other considerations because that would
be detrimental to the interest of the nation. It is of course true that the
aforesaid observations were made not with reference to any reservations as per
Article 15(4). However, while considering the extent of dilution of minimum
passing marks in the entrance examination for admission of reserved category
candidates to postgraduate medical courses, the permissible limit below which
the concessions available to reserved category of candidates cannot be
permitted to go, would require serious consideration, otherwise merit would be
totally by-passed and jeopardised. It is also pertinent to note that in the
aforesaid decision the permissible limit of reservation by way of institutional
preference was held to be only up to 50% of the total available seats. While
dealing with the scope and ambit of reservation under Article 15(4) in
postgraduate courses, which of course is not in challenge before us, we have
also to keep in view, the observations of the nine Judge bench of this Court in
Indra Sawhneys case (supra). In para 146 of the Report at page 401 Pandian, J.,
concurring with the main majority decision rendered by Jeevan Reddy, J.,
observed that : The basic policy of reservation is to off-set the inequality
and remove the manifest imbalance, the victims of which for bygone generations
lag far behind and demand equality by special preferences and their strategies.
Therefore, a comprehensive methodological approach encompassing
jurisprudential, comparative, historical and anthropological conditions is necessary.
Such considerations raise controversial issues transcending the routine legal
exercise because certain social groups who are inherently unequal and who have
fallen victims of societal discrimination require compensatory treatment.
Needless to emphasise that equality in fact or substantive equality involves
the necessity of beneficial treatment in order to attain the result which
establishes an equilibrium between two sections placed unequally.
Same
learned Judge at pages 402-403 of the Report considered a passage by Allan P.
Sindler in his book Bakke, Defunis and Minority Admissions (The Quest for Equal
Opportunity) which dealt with a running race between two persons i.e. one who
has his legs shackled and another not.
In
such a race between unequals it was found necessary to remove the inequality
between the two runners by giving compensatory edge to the shackled runner. The
learned Judge also noted the submission of learned counsel for the petitioners
who demonstrably explained that as unwatered seeds do not germinate,
unprotected backward class citizens will whither away. In the earlier
Constitution bench judgment in M.R.Balaji vs. State of Mysore (supra),
Gajendragadkar, J., at page 467 of the Report, this Court made the following
pertinent observations with reference to Article 15(4) : When Art.15(4) refers
to the special provision for the advancement of certain classes or scheduled
castes or scheduled tribes, it must not be ignored that the provision which is
authorised to be made is a special provision; it is not a provision which is
exclusive in character, so that in looking after the advancement of those
classes, the State would be justified in ignoring altogether the advancement of
the rest of the society. It is because the interests of the society at large
would be served by promoting the advancement of the weaker elements in the
society that Art.15(4) authorises special provision to be made.
We may
also refer to the contention of learned senior counsel Shri Rajendra Sachar,
placing reliance on page 474 of the Report in M.R.Balajis case (supra) to the
effect that the efficiency of administration is of such paramount importance
that it would be unwise and impermissible to make any reservation at the cost
of efficiency of administration and that it was undoubtedly the effect of
Article 335.
Therefore,
what is true in regard to Art.15(4) is equally true in regard to Art.16(4).
These observations, strongly relied upon by Shri Sachar for importing the
impact of Article 335 on the reservations under Article 15(4) cannot be treated
to be of any real assistance to him. The aforesaid observations were made by
the Constitution bench while considering the reasonableness of reservation of
seats in educational institutions and for highlighting the point that such
reservation of seats should not be more than 50% and reservation of 68% of
seats was not within the permissible limit of special provision under Article
15(4).
From
these observations, it cannot necessarily follow that admission to such
reserved seats can tantamount to appointments to any posts to which Article 335
would get directly attracted. While considering the permissible limits of
dilution of minimum passing marks for reserved category candidates appearing at
the entrance test for being called for counselling for admissions to
postgraduate medical courses, we have to keep in view the salient fact that
different universities examining students for obtaining MBBS degrees on the
basis of the same syllabus may have different yardsticks and standards of assessment
of papers and, therefore, students passing their MBBS examinations from
different universities cannot ipso facto be treated to be equally meritorious
and consequently the common entrance test for admission to postgraduate courses
cannot be said to be totally uncalled for. However, because reservation of
seats at postgraduate educational level is countenanced, as a logical
corollary, to make effective the reservations and with a view to seeing that
the reserved category students do not get excluded from getting admitted as far
as possible, provision for lesser qualifying marks for reserved category
candidates at the common entrance test cannot be said to be totally illegal.
However, with a view to seeing that crutches provided to such weaker sections
of society do not cripple them for ever, the dilution of passing marks at the
common entrance test at which such reserved category candidates appear after
obtaining their MBBS degrees from different universities cannot be totally
arbitrary and must have a permissible rock-bottom limit below which it cannot
go and that is why it is reasonable to hold that when reservation of seats
under Article 15(4) in postgraduate medical courses cannot exceed 50% as held
by the Constitution bench in M.R. Balajis case (supra) then on the same line of
reasoning additional facilities to be given to such reserved category
candidates for being admitted to the seats reserved for them in the
postgraduate medical courses also should not exceed the permissible limit of
50% dilution from the general cut-off marks provided uniformly for general
category of candidates competing for admission to such limited number of seats
at postgraduate level.
While
dealing with the question of dilution of minimum passing marks for reserved
category of candidates appearing at the entrance tests for admission to
postgraduate courses it has to be kept in view that general category students
form a separate class as compared to reserved category candidates for whom
seats are reserved under Article 15(4).
Once
that is kept in view, as a logical corollary, it must follow that to make such
reservations effective appropriate dilution of the minimum cut-off marks for
students belonging to the reserved category would become permissible subject to
the rider that such dilution should not be so unreasonable as to go out of the
beneficial protective umbrella of Article 15(4) as seen earlier. If that
happens it would squarely get hit by Article 15(1) read with Article 14 of the
Constitution of India. However, within such permissible limits such dilution
for different reserved categories of candidates who may be given benefit of
sliding scales of reduced passing marks as required by exigencies of situation
would remain legal and valid. In this connection, observations in the
Constitution bench judgment of this court in Chitra Ghosh & Anr. vs. Union
of India & Ors. (supra), wherein Grover, J., spoke for the Constitution
bench as to which we have made a detailed reference earlier are required to be
kept in view. To recapitulate, it has been held that selection of eligible
candidates for admission to medical courses can be made by classifying such
candidates category-wise keeping in view the services from which they are
drawn. The aforesaid decision of the Constitution bench was directly concerned
with the admissions in medical colleges. It would squarely get attracted while
deciding the present controversy. It is obvious that if for admission to a
medical education course at gross-root level of MBBS, different rules for selecting
candidates from different sources from which they are to be drawn are
countenanced, then even at the stage of admission at postgraduate level, the
ratio of the aforesaid decision of the Constitution bench would squarely get
attracted and would permit separate treatment for students drawn from different
sources. It is of course true that in the said case, the Constitution bench was
concerned with the nominations made by the Central Government on seats reserved
for such nominees. However, that would not whittle down the decision of the
Constitution bench to the effect that while imparting education in theory and
practice in medical courses of study, the source from which candidates are
drawn can be a relevant classificatory criterion and there can be different
rules in the matter of selection of candidates drawn from different sources. It
is axiomatic that reserved category candidates competing for being selected to
the seats reserved for them in postgraduate medical courses as per the mandate
of Article 15(4) of the Constitution have to compete inter se with their own
colleagues from the same categories and not necessarily have to compete with
general category candidates who form entirely a different class.
Once
such classification is countenanced, as a necessary concomitant, separate
provision for reserved category of candidates forming a separate class for
which reservation of seats in postgraduate medical courses is permitted cannot
be faulted and hence the dilution of minimum qualifying marks for reserved
category of candidates cannot by itself be treated to be unauthorised or
illegal from any view point.
Otherwise
the very purpose of reserving seats for such class of candidates at
postgraduate level of medical education would be denuded on its real content
and the purpose of reservation would fail. The seats reserved for such category
of persons would go unfilled and will swell the admission of general category
of candidates for whom these seats are not at all meant to be made available,
once the scheme of reservation of seats under Article 15(4) is held applicable.
In the light of the aforesaid discussion, the following conclusions emerge :
1) It
is permissible to the@@ JJJJJJJJJJJJJJJJJJJJ State authorities which are
running and/or controlling the medical institutions in the States concerned to
short-list the eligible and qualified MBBS doctors for being considered for
admission to postgraduate medical courses in these institutions. For the
purpose of such short-listing full play is available to the State authorities
to exercise legislative or executive power as the field is not occupied till
date by any legislation of the Parliament on this aspect in exercise of its
legislative powers under Entry 25 of List III of the Constitution of India and
this topic is also not covered by any legislation under Entry 66 of List I of
the Constitution.
2) The
Indian Medical Council Act and the regulations framed there under do not cover
the question of short-listing of admission of eligible and duly qualified MBBS doctors
who seek admission to different medical institutions imparting postgraduate
education run or controlled by the States concerned. 3) The regulations and
guidelines given by the Medical Council of India in this connection, though
persuasive and not having any binding force, cannot be totally ignored by the
State authorities but must be broadly kept in view while undertaking the
exercise of short-listing of eligible candidates for being admitted to
postgraduate medical courses. 4) While short-listing candidates having basic
qualifications of MBBS for being considered for admission to limited number of
vacancies in postgraduate courses available at the medical institutions in the
Sates, it is permissible for the State authorities to have common entrance tests
and to prescribe minimum qualifying marks for passing such tests to enable the
examinees who pass such test to be called for counselling. That would be in
addition to the basic qualification by way of MBBS degree. The performance of
the candidate concerned during the time he or she undertook the study at MBBS
level for ultimately getting the MBBS degree also would be a relevant
consideration for the State authorities to be kept in view. 5) It is equally
permissible for the State authorities while undertaking the aforesaid exercise
of short-listing to fix 50% minimum qualifying marks at the entrance test for
general category of candidates and to dilute and prescribe lesser percentage of
passing marks for reserved category of candidates as exigencies of situation
may require in a given year but in no case the minimum qualifying marks as
reduced for reserved category of candidates can go below 25% of passing marks
for such reserved category of candidates. In other words, a play is available
to the State authorities to prescribe different minimum passing marks for SC/ST
and OBC eligible candidates between 50% and 25% as the prevailing situation at
a given point of time may require. In such categories for SC, ST & OBC
candidates different diluted passing marks can be prescribed, but this exercise
has to be within the permissible limits of less than 50% & up to minimum
25% passing marks for each of such reserved categories. No eligible candidate
belonging to reserved category who does not obtain minimum percent of passing
marks as diluted for such category of candidates by the State authorities can
be considered to be eligible for undertaking postgraduate medical courses in a
given year for which he has offered his candidature and if any seat reserved
for such categories of candidates remain unfilled due to non-availability of
such eligible reserved category candidate to fill up such seat, then the said
seat would go to general category candidates and will be available in the order
of merit in the light of marks obtained by such wait-listed general category
candidates having obtained requisite passing marks who otherwise could not get
admitted due to non-availability of general category seats earlier. The ratio
of various decisions of this court considered herein above will have to be
implemented in the light of the aforesaid conclusions to which we have reached.
The aforesaid practice has to be followed and should hold the field from year
to year so long as the Parliament does not pass any legislation for regulating
admission to postgraduate medical courses either by separate legislation or by
appropriately amending Indian Medical Council Act by empowering the Medical
Council of India to prescribe such regulations. The writ petitions and the
civil appeal arising out of the special leave petition as well as the review
petitions would stand disposed of accordingly in the aforesaid terms and the
judgments rendered by the High Courts will stand modified and the impugned
orders passed by the State authorities will also stand set aside accordingly.
However, the present judgment will operate purely prospectively and will not
affect the admissions already granted by the concerned authorities in the
postgraduate medical courses prior to the date of this judgment. In other words,
the State authorities will have to comply with the directions contained in this
judgment and put their house in order for regulating the admissions to
postgraduate medical courses starting hereinafter in the medical institutions
concerned.
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