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CIVIL APPEAL NOS. 297-298 of 2015 (Arising out of S.L.P. (C) Nos.13121-13122 of 2011) Sudhir N. & Ors. …Appellants Versus State of Kerala & Ors. …Respondents

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 297-298 of 2015
(Arising out of S.L.P. (C) Nos.13121-13122 of 2011)
Sudhir N. & Ors. …Appellants

Versus

State of Kerala & Ors. …Respondents

With

CIVIL APPEAL NOS. 299-300 of 2015
(Arising out of S.L.P. (C) Nos.11597-11598 of 2011)
CIVIL APPEAL NO. 301 of 2015
(Arising out of S.L.P. (C) No.11606 of 2011)
CIVIL APPEAL NOS. 302-303 of 2015
(Arising out of S.L.P. (C) Nos.13123-13124 of 2011)
CIVIL APPEAL NOS. 304-305 of 2015
(Arising out of S.L.P. (C) Nos.13126-13127 of 2011)
AND

CIVIL APPEAL NOS. 306-307 of 2015
(Arising out of S.L.P. (C) Nos.13130-13131 of 2011)
J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals arise out of a judgment and order dated 30th March 2011
passed by the High Court of Kerala at Ernakulam in Writ Petitions No.1014
of 2009 and 2610 of 2010 filed by the respondents whereby the High Court
has allowed the said petitions with the direction that selection of in-
service medical officers for post-graduate medical education under Section
5(4) of the Kerala Medical Officers’ Admission to Postgraduate Courses
under Service Quota Act, 2008 (Kerala Act 29 of 2008), shall be made
strictly on the basis of inter se seniority of the candidates who have
taken the common entrance test for post-graduate medical education and have
obtained the minimum eligibility bench mark in that test in terms of the
Regulations framed by the Medical Council of India.

3. Forty percent of the seats available in the State of Kerala for post-
graduate medical admission are reserved for in-service doctors serving in
the Health Service Department, Medical College lecturers and doctors
serving in the Employees State Insurance Department of the State. As per
the practice prevalent before the enactment of the impugned legislation
admissions against such reserved seats were made on the basis of seniority
of in-service candidates in each category. Post Graduate Medical Education
Regulations of Medical Council of India, 2000, however, made it mandatory
for all candidates seeking admission to post-graduate medical courses to
appear for a common entrance examination. The Regulations, inter-alia,
provide that candidates who appears in the common entrance examination and
secure 50% in the case of general category candidates and 40% in the case
of SC/ST candidates alone shall be qualified for such admission.
Consequently, even in-service candidates had to appear and qualify in the
common entrance examination. Representations appear to have been received
by the Government from many quarters pointing out that in-service
candidates who were working around the clock for the benefit of the public
even in remote rural areas could hardly find time to update their knowledge
and compete with the general merit candidates so as to score the required
50% marks in the common entrance examination and to qualify for admission
to any post-graduate course. Considering these representations, the
Government decided to bring a legislation to overcome the difficulties
faced by in-service candidates in the matter of getting admission to post-
graduate courses. The legislation envisaged a quota for medical officers
in the service of the State Government on such terms and conditions as may
be prescribed. More importantly, in terms of Section 3 of Act No.29 of 2008
selection of medical officers to the post-graduate courses under the
service quota was to be made by a Selection Committee called the Post
Graduate Course Medical Selection Committee constituted under Section 4 of
the said Act. Section 5 of the Act empowered the Government to set apart
seats not exceeding 40% of the total seats available in the State quota for
any academic year for selection of medical officers under ‘service quota’
for admission to post-graduate medical courses in medical colleges of the
State. Sub-section (2) of Section 5 provided that the academic
qualifications for admission to the post-graduate courses shall be an MBBS
degree with a minimum of 50% marks besides other qualifications that may be
prescribed. Sub-section (4) of Section 5 required the Post-graduate
Selection Committee to finalise the selection list directly based on the
seniority of the in-service medical officers and following such other
criteria as may be prescribed. Section 6 provided for grant of weightage
for ‘rural area service’ or ‘difficult rural area service’ as the case may
be, in the matter of selection of the candidates for admission. Sections 3,
4, 5 and 6 to the extent they are relevant may be re-produced at this
stage:

“3. Selection of Medical Officers for admission to Postgraduate Course
Under the Service.

Quota.- Notwithstanding anything contained in the Indian Medical Council
Act, 1956 (Central Act 102 of 1956) or any rule or regulation issued
thereunder or in any judgment, decree or order of any court or authority,
the selection of Medical Officers for admission to Postgraduate Course of
study in the State under the service quota shall be made only under the
provisions of this Act.

4. Constitution of Post Graduate Course Medical Selection Committee –

(1) The Government may constitute a Postgraduate Course Selection Committee
for the purpose of selection of Medical Officers under the service quota
with the following ex-officio members, namely:-

(a) The Secretary to Government, Health and Family Welfare Department,
Government of Kerala;

(b) The Director of Medical Education;

(c) The Director Health Services;

(d) The Director of Insurance Medical Services;

(e) The Joint Director of Medical Education (M);

(f) The Joint Director of Medical Education (G).

(2) The Secretary to Government, Health and Family Welfare Department
shall be the Chairman and the Director of Medical Education shall be the
Convenor of the Committee.

(3) The Committee shall discharge its functions in such manner as may be
prescribed.

5. Procedure for selection. –

(1) The Government may set apart seats not exceeding forty percent of the
total seats available to state quota in an academic year, for selection of
Medical Officers under service quota considering their service under the
Government for admission to Post Graduate Medical Courses in the Medical
Colleges of the State in such manner as may be prescribed.

(2) The academic qualification for admission to the Post Graduate Course
shall be M.B.B.S. degree with minimum fifty percent marks and the other
qualifications shall be such as may be prescribed.

(3) The details of eligibility for admission, the duration of courses,
allotment, fee to be paid, reservations of seats and such other details
shall be published every year in the prospectus before the commencement of
admission.

(4) The Postgraduate Course Selection Committee shall finalise the
selection list strictly based on the seniority in service of the Medical
Officers and following such other criteria as may be prescribed.

(5) The selection list finalised under sub-section (4) shall be published
by the Post Graduate Selection Committee for the information of the
applicants.

6. Weightage for rural service. – Every Medical Officer who has ‘rural area
service’ or ‘difficult rural area service’ as the case may be, in the State
shall be given weightage in selection in such manner as may be prescribed.”
4. Aggrieved by the above legislation, Writ Petitions No.1014 of 2009
and 2610 of 2010 were filed by the respondents challenging the
constitutional validity of Section 5(4) of the Act in so far as it provides
that ‘admission to post-graduate in-service quota shall be only on the
basis of seniority’. The petitioners also questioned the validity of some
of the provisions of the prospectus for the relevant year to the post-
graduate admission in the service quota but gave up that prayer when the
petitions eventually came up for hearing confining the relief prayed for in
the writ petition to a declaration as to the validity of the statutory
provisions under challenge.

5. The primary ground on which the challenge to the validity of the
legislation was mounted by the writ petitioners was that the State
legislature could not enact a law that would make selection for admission
to the post-graduate courses dependent solely on the seniority of the in-
service candidates without prescribing the minimum conditions of
eligibility for the candidates concerned. Competence of the State
Legislature to enact Section 5(4) of the impugned Legislation was also
called in question on the ground that the said piece of legislation
violated the regulations framed by the Medical Council of India the
authority competent to do so under the Medical Council of India Act, 1956.
It was argued that the Post-Graduate Medical Education Regulations, 2000
provided the minimum requirements that all the candidates have to fulfil.
Inasmuch as the State enactment contrary to the said regulation and
requirement postulates that selection of candidates shall be made only on
the basis of seniority it was beyond the legislative competence of the
Kerala State Legislature. The Indian Medical Council Act and the MCI
Regulations framed under the same were, argued the writ petitioners-
respondents herein, referable only to Entry 66 of List I of Seventh
Schedule. Any legislation enacted by the State Legislature in exercise of
its power under Entry 25 in List III was subject to any law to the contrary
passed by the Parliament in exercise of its power under Entry 66 of List I.
That the State Act was reserved for consideration of the President and that
it has received the assent of His Excellency in terms of Article 254(2) of
the Constitution did not save the legislation from the vice of legislative
incompetence.

6. The State of Kerala contested the petitions and, inter alia, argued
that the State enactment was in pith and substance different from the
Indian Medical Council Act and the MCI Regulations. The State attempted to
justify the legislation under Entry 25 of List III and argued that it does
not in any manner conflict with Entry 66 of List I. It was argued that the
dominant purpose of the legislation under challenge ought to be seen, and
that purpose did not, according to the State, in any way, impinge upon the
Central legislation so as to call for any interference by the Court.

7. On behalf of the in-service doctors an attempt was made to justify
the enactment on the ground that, but, for a provision permitting a quota
for service aspirants for admission to post-graduate courses it would be
difficult to compete with fresh graduates who may be academically better
off than candidates who have since long given up their studies and devoted
themselves entirely to the service of the people at large some of them
inhabiting in remote and difficult areas of the State.

8. The Medical Council of India who was arrayed as a respondent in the
writ petitions, however, supported the case of the writ-petitioners
(respondents herein) to point out that the MCI Regulations categorically
postulate that students for post-graduate course can be selected only on
the basis of their inter se academic merit. Any other method of selection
is, therefore, by necessary implication forbidden. Inasmuch as the State
Legislation has attempted to introduce another method of selection which
has the effect of subverting the MCI Regulations the impugned enactment was
bad.

9. The High Court of Kerala has, by the judgment and order impugned in
these appeals, agreed in principle that admission to post-graduate courses
can be made only on the basis of inter se seniority provided the candidates
appear in the common entrance examination and qualify. It has relying upon
the decisions of this Court in Dr. Preeti Srivastava & anr. v. State of
M.P. & ors. (1999) 7 SCC 120 and State of M.P. & Ors. v. Gopal D.
Tirthani & Ors. (2003) 7 SCC 83 held that the prescription of an entrance
examination with minimum eligibility marks to be secured in the entrance
test for post-graduate course is within the field covered by Entry 66 of
List I and that the State Legislature cannot, by reference to Entry 25 of
List III, make any law that may have the effect of encroaching upon the
field occupied by Entry 66 of List I. The High Court observed:

“The principles of law emanating from the above include that the
prescription as to the requirement of an entrance examination with a
minimum eligibility bench mark to be acquired in that entrance test for
postgraduated medical education is within the field covered by Entry 66 in
List I and the competence of the State Legislature to make a law with
reference to Entry 25 in List III would not enable it to make any such law
encroaching on the field occupied by Entry 66 in List I. The MCI
Regulations framed under Section 33 of the IMC Act is insulated from any
contradiction by any State legislation. Therefore, the State cannot make a
law doing away with the requirement, for in-service candidates, to
participate in the common entrance test for admission to postgraduate
medical courses and obtaining the minimum eligibility requirement
prescribed by the MCI in the Regulations.”

10. The High Court then held that inasmuch as Section 5(4) of the
impugned enactment provides for the preparation of a select list of in-
service medical officers based on seniority, such selection shall be made
from among in-service medical officers only who have appeared in the common
entrance test of post-graduate medical education and obtained the minimum
eligibility bench mark in that test in terms of the MCI Regulations. The
High Court held:

“The conclusion is that the provision in Section 5(4) of the State Act that
the select list of in-service medical officers for postgraduate medical
education shall be strictly on the basis of seniority is subject to the
requirement that such selection can be made only from among those in-
service medical officers who have undergone the common entrance test for
postgraduate medical education and have obtained the minimum eligibility
bench mark in that test in terms of the MCI Regulations. It is so
declared. These writ petitions are allowed to that extent.”

11. The present appeals assail the correctness of the above order and
judgment.

12. Regulation 9 of the Regulations framed under the MCI Act, inter alia,
provides that admission to post-graduate medical courses shall be made
strictly on the basis of inter se academic merit of the candidates. The
Regulation further stipulates the methodology for determining the academic
merit of the candidate. It reads:

“Selection of Postgraduate Students

(1) (a) Students for Postgraduate medical courses shall be selected
strictly on the basis of their inter-se Academic Merit.

(b) 50% of seats in Post Graduate Diploma Course shall be reserved for
Medical Officers in the Government service, who have served for at least
three years in remote and difficult areas. After acquiring the PG Diploma,
the Medical Officers shall serve for two more years in remote and/or
difficult areas.

(2) For determining the “Academic Merit”, the University/Institution may
adopt the following methodologies:

(a) On the basis of merit as determined by a ‘Competitive Test’ conducted
by the state government or by the competent authority appointed by the
state government or by the university/group of universities in the same
state; or

(b) On the basis of merit as determined by a centralised competitive test
held at the national level; or

(c) On the basis of the individual cumulative performance at the first,
second and third MBBS examinations provided admissions are University wise;
or

(d) Combination of (a) and (c).

Provided that wherever ‘Entrance Test’ for postgraduates admission is
held by a state government or a university or any other authorized
examining body, the minimum percentage of marks for eligibility for
admission to postgraduate medical course shall be 50 percent for general
category candidates and 40 percent for the candidates belonging to
Scheduled Castes, Scheduled Tribes and Other Backward Classes.

Provided further that in Non-Governmental institutions fifty percent of the
total seats shall be filled by the competent authority notified by the
State Government and the remaining fifty percent by the management(s) of
the institution on the basis of inter-se Academic Merit.

Further provided that in determining the merit and the entrance test for
postgraduate admission weightage in the marks be given as an incentive at
the rate of 10% of the marks obtained for each year in service in remote or
difficult areas upto the maximum of 30% of the marks obtained.’

13. The above leaves no manner of doubt that admissions to post-graduate
medical courses have to be made only on the basis of academic merit of the
candidates. It is clear from sub-Regulation (2) (supra) that for
determining the “academic merit” the university/institution can adopt any
of the methodologies stipulated therein. In terms of proviso (1) to
Regulation 9, general category candidates must secure 50% marks while those
belonging to SC/ST and other backwards classes are required to secure at
least 40% marks in the entrance test in order to be eligible for admission.
In terms of the third proviso to Rule 9 (supra) weightage for service
rendered in remote and difficult areas is made permissible at the rate of
10% of the marks obtained for each year in service in remote or difficult
areas upto a maximum 30% of the marks.

14. Regulation 9 is, in our opinion, a complete code by itself inasmuch
as it prescribes the basis for determining the eligibility of the
candidates including the method to be adopted for determining the inter se
merit which remains the only basis for such admissions. To the performance
in the entrance test can be added weightage on account of rural service
rendered by the candidates in the manner and to the extent indicated in the
third proviso to Regulation 9. Suffice it to say that but for the impugned
legislation making an attempt to change the basis on which admissions can
be made, such admissions must, in all categories, be made only on the basis
of merit as determined in terms of the provision extracted above. That
method, however, is given a go-bye by the impugned legislation when it
provides that in-service candidates seeking admission in the quota reserved
for in-service doctors shall be granted such admission not on the basis of
one of the methodologies sanctioned by Rule 9(2) of the Rules but on the
basis of inter se seniority of such candidates. The question is whether the
State was competent to enact such a law. Our answer to that question is in
the negative. The reasons are not far to seek. As noted earlier, the
subject is fully covered by several pronouncements of this Court to which
we shall presently refer but before we do so we may extract Article 246 of
the Constitution which reads as under:

“246. Subject matter of laws made by Parliament and by the Legislatures of
States

(1) Notwithstanding anything in clauses (2) and (3), Parliament has
exclusive power to make laws with respect to any of the matters enumerated
in List I in the Seventh Schedule (in this Constitution referred to as the
Union List)

(2) Notwithstanding anything in clause (3), Parliament, and, subject to
clause (1), the Legislature of any State also, have power to make laws with
respect to any of the matters enumerated in List III in the Seventh
Schedule (in this Constitution referred to as the Concurrent List)

(3) Subject to clauses (1) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof with
respect to any of the matters enumerated in List II in the Seventh Schedule
(in this Constitution referred to as the ‘State List’)

(4) Parliament has power to make laws with respect to any matter for any
part of the territory of India not included (in a State) notwithstanding
that such matter is a matter enumerated in the State List”
15. We may also refer, at this stage, to Entry 66 of List I which runs as
under:

“66. Co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions.”

16. In State of T.N. and Anr. v. Adhiyaman Educational & Research
Institute & Ors. (1995) 4 SCC 104, this Court was examining the scope of
Entry 66 of the Union List vis-a-vis Entry 25 of the Concurrent List in
relation to the provisions of Tamil Nadu Private Colleges (Regulation) Act
and Madras University Act vis-a-vis Council for Technical Education Act,
1987. This Court held that the Central Act was intended to achieve the
object of coordinated and integrated development of the technical education
system at all levels throughout the country with a view to promoting
qualitative improvement of such education. This Court further held that the
Central Act namely, All India Council for Technical Education Act, 1987 was
within the scope of Entry 66 of List I and Entry 25 of List III and that on
the subject covered by the statute the State could neither make a law under
Entry 11 of List II nor under Entry 25 of List III after the 42nd
Amendment. If there was any law existing immediately before the
commencement of the Constitution within the meaning of Article 372, such as
the Madras University Act, 1923, the Central Legislation would, to the
extent of repugnancy, impliedly repeal such pre-existing law. This Court
summed up the legal position and the test applicable in the following
paragraph:
“41. What emerges from the above discussion is as follows:
(i) The expression ‘coordination’ used in Entry 66 of the Union List of the
Seventh Schedule to the Constitution does not merely mean evaluation. It
means harmonisation with a view to forge a uniform pattern for a concerted
action according to a certain design, scheme or plan of development. It,
therefore, includes action not only for removal of disparities in standards
but also for preventing the occurrence of such disparities. It would,
therefore, also include power to do all things which are necessary to
prevent what would make ‘coordination’ either impossible or difficult. This
power is absolute and unconditional and in the absence of any valid
compelling reasons, it must be given its full effect according to its plain
and express intention.

[pic](ii) To the extent that the State legislation is in conflict with the
Central legislation though the former is purported to have been made under
Entry 25 of the Concurrent List but in effect encroaches upon legislation
including subordinate legislation made by the Centre under Entry 25 of the
Concurrent List or to give effect to Entry 66 of the Union List, it would
be void and inoperative.

(iii) If there is a conflict between the two legislations, unless the State
legislation is saved by the provisions of the main part of clause (2) of
Article 254, the State legislation being repugnant to the Central
legislation, the same would be inoperative.

(iv) Whether the State law encroaches upon Entry 66 of the Union List or is
repugnant to the law made by the Centre under Entry 25 of the Concurrent
List, will have to be determined by the examination of the two laws and
will depend upon the facts of each case.

(v) When there are more applicants than the available situations/seats, the
State authority is not prevented from laying down higher standards or
qualifications than those laid down by the Centre or the Central authority
to short-list the applicants. When the State authority does so, it does not
encroach upon Entry 66 of the Union List or make a law which is repugnant
to the Central law.

(vi) However, when the situations/seats are available and the State
authorities deny an applicant the same on the ground that the applicant is
not qualified according to its standards or qualifications, as the case may
be, although the applicant satisfies the standards or qualifications laid
down by the Central law, they act unconstitutionally. So also when the
State authorities de-recognise or disaffiliate an institution for not
satisfying the standards or requirement laid down by them, although it
satisfied the norms and requirements laid down by the Central authority,
the State authorities act illegally.”
.
17. In Dr. Preeti Srivastava (supra) one of the questions that fell for
consideration was whether the standard of education and admission criteria
could be laid under Entry 25 of List III by a Central Legislation. A
Constitution Bench of this Court by majority held that standard of
education and admission criteria could be laid down under Entry 66 of List
I and under Entry 25 of List III. It was held that both the Union as well
as the State have the power to legislate on education including medical
education and the State has the right to control education so far as the
field is not occupied by any union legislation. When the maximum marks to
be obtained in the entrance test for admission to the institutions for
higher education including higher medical education is fixed, the State
cannot adversely affect the standards laid down by the union government.
It was held that it is for the MCI to determine reservation to be made for
SC/ST and OBC candidates and lowering the qualifying marks in their favour
on the pretext or pretence of public interest. Speaking for the majority,
Sujata V. Manohar, J. summed up the legal position as under:

“35. The legislative competence of Parliament and the legislatures of the
States to make laws under Article 246 is regulated by the VIIth Schedule to
the Constitution. In the VIIth Schedule as originally in force, Entry 11 of
List II gave to the State an exclusive power to legislate on “education
including universities, subject to the provisions of Entries 63, 64, 65 and
66 of List I and Entry 25 of List III”.

Entry 11 of List II was deleted and Entry 25 of List III was amended with
effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of
1976. The present Entry 25 in the Concurrent List is as follows:

“25. Education, including technical education, medical education and
universities, subject to the provisions of Entries 63, 64, 65 and 66 of
List I; vocational and technical training of labour.”
[pic]
Entry 25 is subject, inter alia, to Entry 66 of List I.

Entry 66 of List I is as follows:

“66. Coordination and determination of standards in institutions for higher
education or research and scientific and technical institutions.”

Both the Union as well as the States have the power to legislate on
education including medical education, subject, inter alia, to Entry 66 of
List I which deals with laying down standards in institutions for higher
education or research and scientific and technical institutions as also
coordination of such standards. A State has, therefore, the right to
control education including medical education so long as the field is not
occupied by any Union legislation. Secondly, the State cannot, while
controlling education in the State, impinge on standards in institutions
for higher education. Because this is exclusively within the purview of the
Union Government. Therefore, while prescribing the criteria for admission
to the institutions for higher education including higher medical
education, the State cannot adversely affect the standards laid down by the
Union of India under Entry 66 of List I. Secondly, while considering the
cases on the subject it is also necessary to remember that from 1977,
education, including, inter alia, medical and university education, is now
in the Concurrent List so that the Union can legislate on admission
criteria also. If it does so, the State will not be able to legislate in
this field, except as provided in Article 254.

36. It would not be correct to say that the norms for admission have no
connection with the standard of education, or that the rules for admission
are covered only by Entry 25 of List III. Norms of admission can have a
direct impact on the standards of education. Of course, there can be rules
for admission which are consistent with or do not affect adversely the
standards of education prescribed by the Union in exercise of powers under
Entry 66 of List I. For example, a State may, for admission to the
postgraduate medical courses, lay down qualifications in addition to those
prescribed under Entry 66 of List I. This would be consistent with
promoting higher standards for admission to the higher educational courses.
But any lowering of the norms laid down can and does have an adverse effect
on the standards of education in the institutes of higher education.
Standards of education in an institution or college depend on various
factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of education in the
given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available to each
student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for
training in the case of medical colleges;
(7) adequate accommodation for the college and the attached hospital; and
[pic](8) the standard of examinations held including the manner in which
the papers are set and examined and the clinical performance is judged.”

(emphasis supplied)
18. This Court further held that MCI had framed regulations in exercise
of the power conferred under Section 20 read with Section 33 of the Medical
Council of India Act which covered post-graduate medical education. These
regulations are binding and the States cannot, in exercise of their power
under Entry 25 of List III, make any rule which are in conflict with or
adversely impinge upon the regulations made by the MCI. Since the standards
laid down are in exercise of power conferred under Entry 66 of List I, the
exercise of that power is exclusively within the domain of the union
government. The State’s power to frame rules pertaining to education was
in any case subject to any provision made in that connection by the union
government. The Court observed:

“52. Mr. Salve, learned counsel appearing for the Medical Council of India
has, therefore, rightly submitted that under the Indian Medical Council Act
of 1956 the Indian Medical Council is empowered to prescribe, inter alia,
standards of postgraduate medical education. In the exercise of its powers
under Section 20 read with Section 33 the Indian Medical Council has framed
regulations which govern postgraduate medical education. These regulations,
therefore, are binding and the States cannot, in the exercise of power
under Entry 25 of List III, make rules and regulations which are in
conflict with or adversely impinge upon the regulations framed by the
Medical Council of India for postgraduate medical education. Since the
standards laid down are in the exercise of the power conferred under Entry
66 of List I, the exercise of that power is exclusively within the domain
of the Union Government. The power of the States under Entry 25 of List III
is subject to Entry 66 of List I.

53. Secondly, it is not the exclusive power of the State to frame rules and
regulations pertaining to education since the subject is in the Concurrent
List. Therefore, any power exercised by the State in the area of education
under Entry 25 of List III will also be subject to any existing relevant
provisions made in that connection by the Union Government subject, of
course, to Article 254.”
(emphasis supplied)
19. We may also at this stage refer to the decision of this Court in
Gopal D. Tirthani case (supra). That was a case where the State defined the
percentage at post-graduation level for degree and diploma course
exclusively for in-service candidates. The reservation came under challenge
but was upheld by this Court holding that the setting apart of 20% seats in
post-graduate course for in-service candidates was not a reservation but a
separate and exclusive channel of entry or source of admission, the
validity whereof cannot be determined on the constitutional principles
applicable to communal reservation. In-service candidates and those who are
not in-service are two classes based on an intelligible differentia. The
purpose sought to be achieved by such classification was a laudable purpose
as such candidates would, after they acquire higher academic achievements,
be available to be posted in rural areas by the State Government. Having
said that, this Court held that there can be no relaxation for in-service
candidates in so far as the common entrance test is concerned and MCI
regulation could not be relaxed for that purpose. The argument that in-
service candidates are detached from theoretical study and cannot,
therefore, compete with other candidates was rejected by this Court. The
following passages, in this regard, are apposite:

“25. The eligibility test, called the entrance test or the pre-PG test, is
conducted with dual purposes. Firstly, it is held with the object of
assessing the knowledge and intelligence quotient of a candidate whether he
would be able to prosecute postgraduate studies if allowed an opportunity
of doing so; secondly, it is for the purpose of assessing the merit inter
se of the candidates which is of vital significance at the counselling when
it comes to allotting the successful candidates to different disciplines
wherein the seats are limited and some disciplines are considered to be
more creamy and are more coveted than the others. The concept of a minimum
qualifying percentage cannot, therefore, be given a complete go-by. If at
all there can be departure, that has to be minimal and that too only by
approval of experts in the field of medical education, which for the
present are available as a body in the Medical Council of India.

26. The Medical Council of India, for the present, insists, through its
Regulations, on a common entrance test being conducted whereat the minimum
qualifying marks would be 50%. The State of Madhya Pradesh must comply with
the requirements of the Regulations framed by the Medical Council of India
and hold a common entrance test even if there are two separate channels of
entry and allow clearance only to such candidates who secure the minimum
qualifying marks as prescribed by the MCI Regulations. If the State has a
case for making a departure from such rule or for carving out an exception
in favour of any classification then it is for the State to represent to
the Central Government and/or the Medical Council of India and make out a
case of justification consistently with the aforequoted observation of this
Court in Dayanand Medical College and Hospital case.”
(emphasis supplied)

20. It is in the light of the above pronouncements futile to argue that
the impugned legislation can hold the field even when it is in clear breach
of the Medical Council of India’s Regulations. The High Court was, in our
opinion, right in holding that inasmuch as the provisions of Section 5(4)
of the impugned enactment provides a basis for selection of candidates
different from the one stipulated by the MCI Regulations it was beyond the
legislative competence of the State Legislature. Having said that the High
Court adopted a reconciliatory approach when it directed that seniority of
the in-service candidates will continue to play a role provided the
candidates concerned have appeared in the common entrance test and secured
the minimum percentage of marks stipulated by the Regulations. The High
Court was, in our opinion, not correct in making that declaration. That is
because, even when in Gopal D. Tirthani’s case (supra) this Court has
allowed in-service candidates to be treated as a separate channel for
admission to post-graduate course within that category also admission can
be granted only on the basis of merit. A meritorious in-service candidate
cannot be denied admission only because he has an eligible senior above him
though lower in merit. It is now fairly well settled that merit and merit
alone can be the basis of admission among candidates belonging to any given
category. In service candidates belong to one category. Their inter-se
merit cannot be overlooked only to promote seniority which has no place in
the scheme of MCI Regulations. That does not mean that merit based
admissions to in-service candidates cannot take into account the service
rendered by such candidates in rural areas. Weightage for such service is
permissible while determining the merit of the candidates in terms of the
third proviso to Regulation 9 (supra). Suffice it to say that Regulation 9
remains as the only effective and permissible basis for granting admission
to in-service candidates provisions of Section 5(4) of the impugned
enactment notwithstanding. That being so, admissions can and ought to be
made only on the basis of inter se merit of the candidates determined in
terms of the said principle which gives no weightage to seniority
simplicitor.

21. In the result, these appeals fail and are hereby dismissed but in the
circumstances without any order as to costs.

…………………………………………J.
(T.S. THAKUR)

…………………………………………..J.
(R. BANUMATHI)
New Delhi
January 12, 2015.

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