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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8047 / 2016 (Arising out of SLP (Civil) No.13832/2016)

State of U.P. & Ors.               ……..Appellants

Versus

Dr. Dinesh Singh Chauhan              …….Respondent

WITH

CIVIL APPEAL NOS. 8048, 8049-51, 8052 and 8053/2016 (Arising out of SLP (Civil) Nos.13872/2016, 15154-15156/2016,

15529/2016, 14427/2016 and  

W.P. (Civil) No. 372/2016)

J U D G M E N T

KHANWILKAR, J.

Leave granted.

2. We have three sets of matters before us.  The first is appeals

arising from the common judgment of the High Court of Judicature

at Allahabad dated 7th April, 2016 in Writ Petition Nos: 1380, 34118

and 35051 all of 2015.   The second is an appeal arising from the

decision of  the  High Court  of  Judicature at  Allahabad,  Lucknow

Bench dated 27th May, 2016 in Writ Petition No: 12004 of 2016. The

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third is a Writ Petition under Article 32 of the Constitution of India

praying for a declaration that the third Proviso to Regulation 9(2) of

the  Post  Graduate  Medical  Education  Regulations,  2000

(hereinafter referred to as ‘the said Regulation’),  is unconstitutional

and violative of Article 14 of the Constitution; and for a direction

against the Authorities to refrain from disturbing the selection of

the said writ  petitioners or to interfere with their  Post  Graduate

studies  which  they  are  presently  pursuing.   The  latter  two

proceedings  are  the  fall  out  of  the  interim order  passed by  this

Court dated 12th May, 2016.

3. The  first  set  of  appeals  (arising  from  SLP  (C)  Nos:  13832,

13872, 14427 and 15154-56 all of 2016), are directed against the

common judgment of the Division Bench of the High Court dated 7 th

April, 2016 disposing the aforesaid three Writ Petitions preferred by

the  in-service  Medical  Officers  in  the  State  of  Uttar  Pradesh,

challenging the Government Orders dated 28th February, 2014 and

17th April,  2014 - so far as it  imposed a condition of  working of

three years in rural or difficult areas as ultra-vires and hit by Article

14, 15 and 16 of the Constitution of India.  It was also prayed that

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No Objection Certificate be issued in favour of the petitioners for

admission  in  MD/MS/Diploma  in  UPPGMEE-2015  and  for

quashing of the declaration of result dated 2nd June, 2015.

4. The  said  writ  petitioners  claimed  to  be  members  of  the

Provincial Medical Health Services in the State of  Uttar Pradesh.

According  to  them,  they  were  also  entitled  to  be  considered  for

admission in Post Graduate Degree Courses against 30% quota for

in-service candidates. That plea was opposed on the ground that

30% quota was reserved only for the in-service candidates who had

worked  in  remote  and difficult  areas;  and not  for  the  in-service

Medical Officers generally.  In these petitions, the High Court was

primarily  required  to  consider  the  question  as  to  whether  the

in-service Medical Officers in the State of Uttar Pradesh who had

working experience (in areas other than remote and difficult areas),

could also be treated as eligible for admission against the reserved

30%  quota  for  in-service  candidates  in  Post  Graduate  Degree

Courses.   While  considering  this  issue,  the  High  Court,  in  the

context of Regulation 9, noticed that there was no provision in The

Indian Medical  Council  Act,  1956 (hereinafter  referred  to  as  the

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Central  Enactment  or  Act  of  1956);  and the  Regulations  framed

thereunder  known  as  Medical  Council  of  India  Post  Graduate

Medical Education Regulations, 2000 (hereinafter referred to as the

said Regulations), stipulating reservation for in-service candidates

against  the  30% seats  in  “Post  Graduate  Degree  Courses”.  The

provision,  however,  was  only  to  give  weightage  of  marks  to

in-service candidates who had worked for specified period in CHC

and PHC Hospitals in notified remote, difficult or backward areas of

the State.  On the other hand, reservation has been limited to Post

Graduate  “Diploma”  Courses  by  the  said  Regulations.  The  High

Court, therefore, called upon the Medical Council of India to clarify

its stand in this behalf.  The Medical Council of India stated before

the High Court that no reservation for in-service candidates was

permissible in respect of Post Graduate “Degree” Courses; unlike for

the  Post  Graduate  “Diploma”  Courses,  in  terms  of  Regulations

framed in that behalf.   Further,  the State Government could not

have  framed  any  statutory  Rules  much  less  provided  different

dispensation by an executive fiat.  In light of this stand, the High

Court was pleased to hold that the State Government has had no

authority to frame any Rules or issue any executive order to provide

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for reservation in the Post Graduate “Degree” Courses, contrary to

the  statutory  Regulations  framed  under  the  Medical  Council  of

India  Act,  1956  (Central  Enactment).  The  High  Court  whilst

adverting  to  the  decisions  of  this  Court  including  the  recent

judgment in the case of  Sudhir N. and others Versus State of

Kerala and others1 held that Regulation 9 is a complete Code and

the admission process must strictly adhere to the norms stipulated

therein.  It,  thus,  proceeded  to  quash  the  Government

Notification-cum-Government Order dated 28th February, 2014 and

directed  that  admissions  to  Post  Graduate  “Degree”  Courses  be

proceeded  strictly  on  merits  amongst  the  candidates  who  have

obtained  requisite  minimum  marks  in  the  common  entrance

examination in question. It also noted that as per Regulation 9, at

best,  the  in-service  candidates  who  have  worked  in  remote  and

difficult  areas  in  the  State,  as  notified  by  the  State

Government/Competent Authority from time to time, alone would

be eligible for weightage of marks as incentive at the rate of 10% of

the marks obtained for each year of service in such areas upto the

1

(2015) 6 SCC 685

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maximum  of  30%  marks  obtained  in  National

Eligibility-cum-Entrance Test.

5. This common judgment of the High Court has been challenged

in  appeals  arising  from  SLP  (Civil)  Nos.13832,  14427,  13872,

15154-56/2016.  When these appeals came up for consideration on

12th May, 2016, this Court recorded the statement made on behalf

of the State Government and proceeded to pass the following order:

“We have heard learned counsel for the parties at some length. The High Court of Judicature at Allahabad has in  terms  of  the  impugned  judgment  quashed Government Order dated 28th February, 2014 whereby 30% seats in post-graduate degree courses in medicine and other disciplines have been reserved for in-service candidates who had three years or more of rural service in  notified  and  difficult  areas.  The  High  Court  has relying upon the judgment of this Court in Sudhir N. and Others v.  State of  Kerala and Others – (2015) 6 SCC 685 held that the State Government could not by an executive order change the method of selection for admission of  candidates for  post-graduate courses in medical science so as to violate or dilute the regulations framed by the Medical Council of India in exercise of its powers under Section 33 of  Medical Council  of  India Act.  Regulation  9  of  the  Medical  Council  of  India Postgraduate  Medical  Education  Regulations,  2000 which deals with the method of selection of candidates for admission to post-graduate courses reads as under:

“9. SELECTION OF POSTGRADUATE STUDENTS.  

9(1)(1)  Students for Post Graduate medical courses 3 shall be selected strictly on the basis of their Inter-se

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Academic Merit. b) 50% of the 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 area. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas. In Clause 9(1)(b)  after  the  words”remote  and/or  difficult  areas” and in the proviso to the clause 9(2)(d), the following shall be inserted in terms of Notification published on 16.04.2010.  “As  directed  by  the  competent  State authorities from time to time.” 9 (2) For determining the `Academic Merit' the University/Institution may adopt the following methodology: (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 authorised 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 4 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. The following proviso is added after clause 9(2)(d) in  terms  of  Gazette  Notification  published  on 17.11.2009.  

“Further provided that in determining the merit and  the  entrance  test  for  postgraduate  admission

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weightage in the marks may be given as an incentive at the rate of 10% of  the marks obtained for each year in-service  in  remote  or  difficult  areas  up  to  the maximum of 30% of the marks obtained.” (Emphasis supplied by us)

It  was  contended  on  behalf  of  the petitioners-candidates by Mrs. Indu Malhotra, learned senior  counsel,  that  while  the  question  whether  the Government  could  reserve  seats  for  candidates  who had  rendered  service  in  notified  rural  and  difficult areas, could be examined in greater detail at the final hearing,  the  least  that  this  court  could  do  at  the interim stage is to direct redrawing of the merit list of the candidates in terms of the Regulation 9 (supra). It was  submitted  that  proviso  (iii)  to  Regulation  9(2) clearly permits grant of weightage in terms of marks by way  of  an  incentive  for  rural  service  rendered  by candidates at the rate of 10% for each year of service in remote or difficult areas subject to a maximum of 30% of the marks obtained by a candidate. It was contended that even if the State was not competent to separately reserve a specific number of seats for candidates who have served in notified areas the fact that candidates had  rendered  service  in  notified  rural  and  difficult areas entitled them to weightage in terms of the said proviso. It was urged that the State Government could be directed to re-draw the merit list of the candidates who appeared in the competitive  examination on the basis  of  the  above  Regulation  giving  to  the  eligible candidates weightage for rural service, if any rendered by them, and granting admission accordingly to those who qualify on that basis. It was urged that while the State Government had already completed one round of counselling for some of the candidates in the merit list, the remaining candidates had yet to be counselled. This may  therefore  call  for  cancellation  of  the  earlier counselling and holding of a fresh round of counselling of  candidates  after  a  revised merit  list  drawn in  the manner indicated above.  Mr. Dinesh Dwivedi, learned

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senior  counsel  appearing  for  the  respondents-writ petitioners  and  Mr.  Dushyant  Dave,  learned  senior counsel appearing for the State, submit that they will have no objection if  the merit  list  is  redrawn on the basis  of  Regulation  9  (supra)  after  giving  to  eligible candidates the weightage for service, if any rendered, in notified rural areas. They have also no objection to the counselling process being done de novo on the basis of the revised merit list so prepared.  

In the circumstances,  we direct  that  the State  Government  shall  as  expeditiously  as  possible revise  and  redraw  the  merit  list  of  the  candidates keeping in view Regulation 9 of the Medical Council of India  Postgraduate  Medical  Education  Regulations, 2000  and  giving  to  the  eligible  candidates  such  6 weigtage as may be due to them for rendering service in notified  rural  and/or  difficult  areas  and  to  grant admission  to  the  candidates  found  suitable  for  the same  on  the  basis  of  such  redrawn  merit  list. This exercise shall be completed before 30th May, 2016, the last  date  fixed  for  granting  of  admission.  The  entire exercise so conducted shall however remain subject to the outcome of these proceedings.  

Post after ensuing summer vacation.”

(emphasis supplied)

6. In furtherance of  the above order,  the Competent  Authority

has prepared a fresh merit  list  of  all  the candidates in terms of

Regulation  9,  giving  weightage  of  marks  to  eligible  in-service

Medical  Officers.   As a result,  the previous merit  list  stood fully

altered and realigned.  The admission process will have to be taken

forward on the basis of  this fresh merit  list.   As a result  of  the

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preparation of a fresh merit list, most of the candidates who had

earlier  secured  higher  position  in  the  common  entrance  test

examination, have been pushed back due to allocation of incentive

marks to the concerned in-service Medical Officers.  Hence, those

affected  candidates  made  representations  to  the  State  of  Uttar

Pradesh; which in turn was advised to file Interlocutory Application

in this Court  being I.A.No.5/2016 in SLP (Civil)  No.13832/2016,

praying for permitting the State Government to restore the position

as it existed prior to the issuance of the Government Order dated

28th February, 2014, so that, admission to Post Graduate Medical

Seats can be made on the basis of marks obtained by the concerned

candidates  in  the  NEET;  and  further  to  extend  the  time  for

completing  the  admission  process  in  the  Post  Graduate  Degree

Courses.  Besides  the  State  Government,  even  the  candidates

affected by the fresh merit list prepared in terms of Regulation 9,

have  rushed  to  this  Court  by  way  of  separate  Interlocutory

Applications in the respective appeals.  According to them, status

quo-ante should be restored to enable them to pursue their Post

Graduate “Degree” Courses in the same colleges where they have

already been admitted.

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7. The  second  set  of  appeal  (arising  from  SLP  (Civil)

No.15529/2016),  is  by Medical Officers of  State Medical Colleges

seeking admission to Post Graduate Degree Courses. According to

them, they were also eligible candidates in terms of Regulation 9

and should have been considered at the time of preparing a fresh

merit  list.  The  said  Writ  Petition  was  dismissed  by  the  Division

Bench vide Order dated 27th May, 2016 on the finding that it was

not  feasible  for  the  Department  to  consider  the  claim of  eligible

in-service  candidates  who  had  not  submitted

applications/documents before the notified date.  In other words,

only those in-service candidates who had submitted applications for

grant of admission to the Post Graduate Degree Courses within the

stipulated time have been considered.  This proceeding is, therefore,

the fall  out of  the interim direction issued by this Court on 12th

May, 2016.   

8. The  third  set  of  proceedings  being  Writ  Petition  (Civil)  No.

372/2016, filed under Article 32 of the Constitution of India, is by

students  aspiring  to  take  admissions  to  various  Post  Graduate

“Degree” Courses in the State of Uttar Pradesh; and who claim to

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have been affected by the dispensation specified in the interim order

passed by this Court dated 12th May, 2016. In that, they have been

dislodged  from  the  respective  Post  Graduate  Degree  Courses  in

which they were already admitted in the concerned medical colleges

and even started pursuing their courses.

9. These  matters  were  listed  to  consider  the  Interlocutory

Applications filed by the State of U.P. and other affected candidates.

The sum and substance of  the argument was that the challenge

before the High Court in the writ petition filed was at the instance of

in-service  Medical  Officers  who  had  not  worked  or  gained

experience in remote and difficult areas in the State and wanted to

be  equated  with  their  counterparts  who  were  or  had  worked  in

remote and/or difficult areas.  The High Court, however, quashed

the  entire  resolution  providing  for  30% reservation  to  in-service

candidates.  Further,  by  way  of  interim  directions  this  Court

directed  preparation  of  fresh  merit  list;  and  on  following  that

direction, several meritorious candidates have been dislodged and

pushed back in order of merit because of the weightage or incentive

marks given to in-service candidates.

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10. The  learned  Attorney  General  representing  the  State

Government, in all fairness, stated that he was not in a position to

resile  from  the  statement  already  made  on  behalf  of  the  State

Government as recorded in the order on 12.05.2016, but wanted

this Court to consider the anomalous situation created because of

the  fresh merit  list;  and to  overcome that  difficulty,  it  would  be

advisable to allow the State Government to restore the position as it

existed  prior  to  the  issuance  of  the  Government  Order  dated

28.02.2014 - so that admission to all Post Graduate Degree Courses

can be made on the basis of merit as per the marks obtained in the

Common Entrance  Examination.  That  would result  in  upholding

the impugned decision dated 07.04.2016. This argument has been

supported  by  one  section  of  applicants  in  the  accompanying

impleadment applications.   

11. The leading arguments on behalf of the candidates affected by

the fresh merit list were made by Shri Ashok Desai, Sr. Counsel,

Shri Yatinder Singh, Sr. Counsel, and Shri Gopal Subramanium,

Sr.  Counsel.   The  contra  argument  was  made  by  Shri  K.K.

Venugopal,  Sr. Counsel, Shri K.V. Vishwanath, Sr. Counsel, Shri

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Sanjay  R.  Hegde,  Sr.  Counsel  and  Shri  Dinesh  Dwivedi,  Sr.

Counsel.   

12. According  to  Shri  Gaurav  Sharma,  Advocate  appearing  for

Medical  Council  of  India,  the  dispensation  provided  in  terms  of

order dated 12.05.2016 is just and legal, for granting admissions to

Post  Graduate  “Degree”  Courses  in  medical  colleges.   Hence,  no

fault can be found with that approach.  It was further contended

that  the  provisions  regarding  giving  weightage  to  the  in-service

candidates by way of incentive marks has been introduced in larger

public interest and the same is just, rational and proper.   

13. Shri  Ranjit  Kumar,  Solicitor  General  appearing  for  King

George’s Medical College supported the stand taken by the Attorney

General.   He submitted that  reservation hitherto  applied only  to

State colleges, but now with the dispensation adopted in terms of

order dated 12.05.2016 passed by this Court of giving weightage to

all the eligible in-service candidates, the benefit would apply even in

respect  of  State  seats  in  non-Government  colleges,  including

statutory Universities who have to follow the merit list prepared as

per the Common Entrance Examination.  Ms. Pinky Anand, ASG

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appearing for the Union of India submitted that since advertisement

was already issued, it would be appropriate to continue the college

admissions  without  reservation  for  in-service  candidates.  It  was

argued on behalf of the interventionists that the decision to strictly

follow Regulation 9 may be made applicable only to academic year

2016-17  and  not  for  an  earlier  period,  in  respect  of  which  the

admission  process  has  already  been  completed  and  more  so

because  the  students  have  taken  admission  on  that  basis  and

commenced their academic year.  It was further submitted that a

separate  list  of  in-service  candidates  can  be  maintained  to  the

extent of 30% seats.  Preparation of combined merit list results in

unequals being treated equally; and, more so, leads to preposterous

results.  In  some cases  the  in-service  candidates,  because  of  the

weightage of marks, have secured more than the maximum marks

of  200,  specified  in  the  CET.   The  counsel  appearing  for  the

interventionists placed a comparative chart depicting the irrational

effect due to the fresh merit list. That shows the unfair manner in

which the meritorious candidates have been pushed down in the

merit list.  It was further submitted that the direct candidates were

willing to give undertaking/bond to the effect that after passing out

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Post-Graduate  Degree  Courses  they  would  serve  in  remote  or

difficult areas in the State for a period as may be specified.  This

would assuage the impression being created that those candidates

were un-willing to work in remote and difficult areas.  It was also

contended that even though some of the candidates who were keen

to  work  in  remote  and/or  difficult  areas,  in  absence  of  any

notification issued by the State Government to invite applications

for quite some time for appointment as Medical Officers in remote

and  difficult  areas,  the  interventionists  -  the  aspiring  eligible

candidates  -  were denied opportunity to work as Medical Officers

in the State hospitals.  Further, the reservation of 30% seats was

limited to Government Colleges but the fresh common merit list was

applied  to  all  the  colleges  and  Universities  including

non-Government medical colleges in the State.

14. As the arguments were heard at length, it was made clear to

all concerned that instead of deciding the applications taken out in

the  respective  substantive  proceedings,  the  entire  matter  will  be

disposed off as the issues to be answered in the main proceedings

would be the same.

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15. Having  considered  the  rival  submissions,  the  first  question

that needs to be answered is: whether the High Court exceeded its

jurisdiction  in  setting  aside  the  Government  Order  dated

28.02.2014 providing for reservation to in-service candidates, when

the writ petition filed by the in-service candidates was limited to

equate them with the in-service candidates who had the experience

of working in remote or difficult areas.  Indeed, the challenge before

the High Court was limited.  However, the High Court having held

that  the  State  Government  could not  have issued such order  in

violation of Regulation 9, quashed the same.  The High Court had

invited the parties to advance arguments on the validity of the said

Government Order before passing the final order.  The High Court

relied on the decisions of the Supreme Court and opined that it was

not  permissible,  in  law,  for  the  State  Government  to  provide

reservation  for  in-service  candidates  in  Post-Graduate  “Degree”

courses in violation of Regulation 9.  Concededly, action taken on

the basis of such a void Government Order would be nothing short

of a nullity in law.  As a result, the High Court proceeded to issue

directions  to  follow  the  admission  process  for  Post  Graduate

“Degree” Courses strictly in conformity with Regulation 9. The High

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Court  thus  moulded  the  relief  on  the  basis  of  the  settled  legal

position. That approach is un-exceptionable, except that it may be

necessary  to  mould  the  relief  further  as  would  be  indicated

hereinafter.

16. Be that as it may, after the interim order dated 12.05.2016

was passed by this Court on the basis of assurance given by the

State, it  is not open for the State Government to contend to the

contrary.  Notably,  the  State  Government  has  not  prayed  for

relieving itself from the statement as has been recorded in the order

dated 12.05.2016. That interim order, therefore, in one sense was

invited by the State Government to strictly follow Regulation 9 by

giving a weightage of  marks to eligible in-service candidates and

redraw  the  merit  list.   The  concomitant  of  such  an  informed

statement made to this Court, inevitably, results in withdrawal of

the Government order dated 28.02.2014 (which in fact has been

justly  quashed  by  the  High  Court);  and  also  to  notify  that  the

admissions to Post Graduate Degree Courses in the State of U.P.

will  be  in  conformity  with  Regulation  9,  including  to  give  only

weightage or incentive marks to eligible in-service candidates who

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have served in notified remote/difficult areas of the State.  In any

case,  it  is  not  open  to  the  State  Government  to  provide  for  a

dispensation different than the one specified by the Central Act and

Regulations made thereunder.   

17. A  priori,  it  must  be  held  that  the  relief  claimed  in  the

application filed by the State Government is an ingenious way to

overcome  the  unconditional  and  unequivocal  statement  made

before this Court on 12.05.2016.  We are of the considered opinion

that the State Government is obliged to adopt a procedure as is

stipulated by the Central Act and Regulations framed thereunder

and noted in the interim order dated 12.05.2016.  Regulation 9 has

been extracted in the said order dated 12.05.2016, as reproduced

above.   Regulation  9(2)  specifically  deals  with  the  process  of

“determining the academic merit” of the eligible candidates. Indeed,

the primary consideration for determining the academic merit of the

candidates is the marks obtained by the respective candidates in

the common competitive test or centralized competitive test held by

the concerned Authority.  What is relevant for our purpose is the

third proviso in Regulation 9(2).  It envisages that in determining

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the merit, weightage may be given at the rate of 10% of the marks

obtained for each year in-service in remote or difficult areas upto

the maximum of 30% marks obtained in the common examination

by the candidates.  This Regulation does not envisage reservation of

seats for the Post Graduate “Degree” Courses, unlike the express

provision  which  is  made  in  the  same  Regulation  to  provide

reservation of seats for in-service candidates in “Diploma” courses.

18. Reverting  to  Regulation  9  of  the  Post  Graduate  Medical

Education  Regulations,  2000,  which  have  been  framed  by  the

Medical Council of India in exercise of power conferred by Section

33 read with Section 20 of the Indian Medical Council of India Act,

1956, it is noticed that the same has undergone amendment from

time to time.  The decisions pressed into service have considered

the  stipulations  as  applicable  at  the  relevant  time.   The  recent

decision in the case of Sudhir N. (supra) also dealt with Regulation

applicable to admission process commenced in the year 2009-2010.

We  are,  however,  concerned  with  the  admission  process  for  the

subsequent academic years and covered by the Regulations as in

force.   Regulation  9,  as  amended  and  lastly  notified  and  made

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applicable  from  the  Academic  Year  2013-14  vide  Notification

No.MCI-18(1)/2010-Mad/62052  dated  15th February  2012,  reads

thus:

“9.  Procedure  for  selection  of  candidate  for Postgraduate courses shall be as follows:

I. There  shall  be  a  single  eligibility  cum  entrance examination  namely  ‘National  Eligibility-cum-Entrance Test  for  admission to Postgraduate Medical Courses’  in each academic year.  The superintendence, direction and control  of  National  Eligibility-cum-Entrance  Test  shall vest with National Board of Examinations under overall supervision of the Ministry of Health & Family Welfare, Government of India”]

II. 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%:

Provided  that  in  case  any  seat  in  this  3%  quota remains  unfilled  on  account  of  unavailability  of candidates  with  locomotory  disability  of  lower  limbs between 50% to 70% then any such unfilled seat in this  3%  quota  shall  be  filled  up  by  persons  with locomotory  disability  of  lower  limbs between 40% to 50%  -  before  they  are  included  in  the  annual sanctioned seats for General Category candidates.

Provide  further  that  this  entire  exercise  shall  be completed by each medical college/institution as per the statutory time schedule for admissions.

III. In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for  a  candidate  to  obtain  minimum  of  marks  at  50th percentile  in  ‘National  Eligibility-cum-Entrance  Test  for Postgraduate  courses’  held  for  the  said  academic  year. However, in respect of candidates belonging to Scheduled Castes,  Scheduled Tribes,  Other Backward Classes, the minimum marks shall be at 40th percentile.  In respect of candidates  as  provided  in  clause  9(II)  above  with

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locomotory disability of lower limbs, the minimum marks shall  be  at  45th percentile.   The  percentile  shall  be determined on the basis of highest marks secured in the All-India  common  merit  list  in  ‘National Eligibility-cum-Entrance Test’ for Postgraduate courses:

[Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed  in  National  Eligibility-cum-Entrance  Test held  for  any  academic  year  for  admission  to  Post Graduate  Courses,  the  Central  Government  in consultation with Medical Council of India may at its discretion  lower  the  minimum  marks  required  for admission  to  Post  Graduate  Course  for  candidates belonging  to  respective  categories  and  marks  so lowered by the Central Government shall be applicable for the said academic year only.

IV. The  reservation  of  seats  in  medical colleges/institutions for respective categories shall be as  per  applicable  laws  prevailing  in  States/Union Territories.  An all India merit list as well as State-wise merit list of the eligible candidate shall be prepared on the  basis  of  the  marks  obtained  in  National Eligibility-cum-Entrance Test and candidates shall be admitted to Post-graduate courses from the said merit lists only:

[Provided that in determining the merit of candidates who  are  in-service  of  Government/public  authority, weightage  in  the  marks  may  be  given  by  the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service  in  remote  and/or  difficult  areas  upto  the maximum of 30% of the marks obtained in National Eligibility-cum Entrance Test, the remote and difficult areas  shall  be  as  defined  by  State Government/Competent authority from time to time.

V. No  candidate  who  has  failed  to  obtained  the minimum  eligibility  marks  as  prescribed  in sub-clause  (II)  shall  be  admitted  to  any Postgraduate courses in the said academic year.

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VI. In non-Governmental medical colleges/institutions, 50% (Fifty Per cent) of the total seats shall be filled by State Government or the Authority appointed by them, and the remaining 50% (Fifty Per Cent) of the seats  shall  be  filled  by  the  concerned  medical colleges/institutions on the basis of the merit list prepared  as  per  the  marks  obtained  in  National Eligibility-cum/Entrance Test.]

VII. 50% of the seats in Post Graduate Diploma Courses shall  be  reserved  for  Medical  Officers  in  the Government service,  who have served for at least three years in remote and/or difficult areas.  After acquiring  the  PG  Diploma,  the  Medical  Officers shall  serve  for  two more  years  in  remote  and/or difficult  areas  as  defined  by  State Government/Competent  authority  from  time  to time.]

VIII. The  Universities  and  other  authorities  concerned shall  organize  admission  process  in  such  a  way that teaching in postgraduate courses starts by 2nd May and by 1st August for super specialty courses each year. For this purpose, they shall follow the time schedule indicated in Appendix-III.]

IX. There shall be no admission of students in respect of  any  academic  session  beyond  31st May  for postgraduate courses and 30th September for super speciality courses under any circumstances.   The Universities shall not register any student admitted beyond the said date.]

X. The Medical Council of India may direct, that any student  identified  as  having  obtained  admission after  the  last  date  for  closure  of  admission  be discharged from the course of study, or any medical qualification granted to such a student shall not be a  recognized  qualification  for  the  purpose  of  the Indian Medical Council  Act, 1956. The institution which  grants  admission  to  any  student  after  the last date specified for the same shall also be liable to face such action as may be prescribed by MCI including  surrender  of  seats  equivalent  to  the extent of such admission made from its sanctioned

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intake capacity for the succeeding academic year.]” (emphasis supplied)

19. The structure of the provision, as in force, may be somewhat

different.   Nevertheless,  the  legal  principle  stated  in  the  earlier

decisions of this Court on the question of justness of reservation

and/or  to  provide  separate  channel  for  the  in-service  Medical

Officers and/or grant weightage of incentive marks to candidates

having  served  in  remote  and  difficult  areas  may  be  of  some

relevance.   

20. By  now,  it  is  well  established  that  Regulation  9  is  a

self-contained  Code  regarding  the  procedure  to  be  followed  for

admissions to medical courses.  It is also well established that the

State  has  no  authority  to  enact  any  law muchless  by  executive

instructions that may undermine the procedure for  admission to

Post  Graduate  Medical  Courses  enunciated  by  the  Central

Legislation  and  Regulations  framed  thereunder,  being  a  subject

falling within the Entry 66 of List I to the Seventh Schedule of the

Constitution (See: Preeti Srivastava (Dr.) V. State of M.P.2).  The

procedure for selection of candidates for the Post Graduate Degree

2

 (1999) 7 SCC 120

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Courses  is  one  such area  on which  the  Central  Legislation and

Regulations must prevail.  

21. Thus,  we  must  first  ascertain  whether  Regulation  9,  as

applicable to the case on hand, envisages reservation of seats for

in-service Medical Officers generally for admission to Post Graduate

“Degree” Courses. Regulation 9 is a composite provision prescribing

procedure  for  selection  of  candidates  -  both  for  Post  Graduate

“Degree” as well as Post Graduate “Diploma” Courses. Clause (I) of

Regulation  9  mandates  that  there  shall  be  a  single  National

Eligibility-cum- Entrance Test (hereinafter referred to as NEET) to

be conducted by the designated Authority.  Clause (II) provides for

three per cent seats of the annual sanctioned intake capacity to be

earmarked for candidates with locomotory disability of lower limbs.

We are not concerned with this provision. Clause (III) provides for

eligibility for admission to any Post Graduate Course in a particular

academic year.  Clause (IV) is the relevant provision.  It provides for

reservation  of  seats  in  medical  colleges/institutions  for  reserved

categories  as  per  applicable  laws  prevailing  in  States/Union

Territories.  The reservation referred to in the opening part of this

clause  is,  obviously,  with  reference  to  reservation  as  per  the

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constitutional  scheme  (for  Scheduled  Caste,  Scheduled  Tribe  or

Other  Backward  Class  Candidates);  and  not  for  the  in-service

candidates or Medical Officers in service.  It further stipulates that

All India merit list as well as State wise   merit list of the eligible

candidates shall be prepared on the basis of the marks obtained in

the  NEET  and  the  admission  to  Post  Graduate  Courses  in  the

concerned State shall be as per the merit list only.  Thus, it is a

provision  mandating  admission  of  candidates  strictly  as  per  the

merit list of eligible candidates for the respective medical courses in

the State.  This provision, however, contains a proviso. It predicates

that in determining the merit of candidates who are in-service of

Government or a public Authority, weightage in the marks may be

given by the Government/Competent Authority as an incentive at

the rate of 10% of the marks obtained for each year of service in

specified remote or difficult areas of the State upto the maximum of

30% of the marks obtained in NEET.  This provision even if read

liberally does not provide for reservation for in-service candidates,

but only of  giving a weightage in the form of incentive marks as

specified to the class of in- service candidates (who have served in

notified remote and difficult areas in the State).   

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22. From the plain language of this proviso, it is amply clear that

it does not envisage reservation for in-service candidates in respect

of  Post  Graduate  “Degree”  Courses  with  which  we  are  presently

concerned.  This proviso postulates giving weightage of  marks to

“specified in-service candidates” who have worked in notified remote

and/or difficult areas in the State – both for Post Graduate “Degree”

Courses as also for Post Graduate “Diploma” Courses. Further, the

weightage  of  marks so  allotted  is  required to  be  reckoned while

preparing the merit list of candidates.  

  23. Thus understood, the Central Enactment and the Regulations

framed  thereunder  do  not  provide  for  reservation  for  in-service

candidates  in  Post  Graduate  “Degree”  Courses.   As  there  is  no

express provision prohibiting reservation to in-service candidates in

respect  of  admission  to  Post  Graduate  “Degree”  Courses,  it  was

contended  that  providing  for  such  reservation  by  the  State

Government  is  not  impermissible  in  law.   Further,  there  are

precedents  of  this  Court  to  suggest  that  such  arrangement  is

permissible  as  a  separate  channel  of  admission  for  in-service

candidates.  This argument does not commend to us.  In the first

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place,  the  decisions  pressed  into  service  have  considered  the

provisions  regarding  admission  process  governed  by  the

Regulations in force at the relevant time.  The admission process in

the present case is governed by the Regulations which have come

into  force  from  Academic  Year  2013-14.  This  Regulation  is  a

self-contained Code.  There  is  nothing  in  this  Regulation to  even

remotely  indicate  that  a  separate  channel  for  admission  to

in-service candidates must be provided, at least in respect of Post

Graduate  “Degree”  Courses.  In  contradistinction,  however,  50%

seats are earmarked for the Post Graduate “Diploma” Courses for

in-service  candidates,  as  is  discernible  from Clause (VII).   If  the

Regulation  intended  a  similar  separate  channel  for  in-service

candidates even in respect of Post Graduate “Degree” Courses, that

position  would  have  been made clear  in  Regulation 9  itself.   In

absence thereof, it must be presumed that a separate channel for

in-service  candidates  is  not  permissible  for  admission  to  Post

Graduate “Degree” Courses.  Thus, the State Government, in law,

had no authority to issue a Government Order such as dated 28th

February 2014, to provide to the contrary.  Hence, the High Court

was fully justified in setting aside the said Government Order being

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contrary to the mandate of Regulation 9 of the Regulations of 2000,

as applicable from Academic Year 2013-14.

24. In the case of AIIMS Students Union vs. AIIMS & Ors.3, this

Court  was  called  upon  to  examine  the  question  whether  seats

earmarked  for  institutional  candidates  do  or  do  not  result  in

reservation  in  the  sense  in  which  it  is  understood  in  the

Constitution.  After examining earlier decisions on the point, this

Court  in  paragraph  59,  noticed  the  distinction  between

undergraduate level education which is a primary or basic level of

education in medical sciences.  The Court held that institutional

reservation is not supported by the Constitution or constitutional

principles. However, a certain degree of preference for students of

the same institution is permissible without making an excessive or

substantial departure from the rule of merit and equality. Further,

it has to be kept within the limits, minimum standards and merit

cannot  be  diluted as to  become practically  non-existent.   In  the

present  case,  we  have  held  that  providing  30%  reservation  to

in-service  candidates  in  Post  Graduate  “Degree”  Courses  is  not

3

2002 (1) SCC 428

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permissible.  It  does  not  however,  follow that  giving  weightage or

incentive marks to in-service candidates for Post Graduate “Degree”

Courses entails in excessive or substantial departure from the rule

of merit and equality. For, Regulation 9 recognizes the principle of

giving  weightage  to  in-service  candidates  while  determining  their

merit. In that sense, incentive marks given to in-service candidates

is in recognition of their service reckoned in remote and difficult

areas  of  the  State,  which  marks  are  to  be  added  to  the  marks

obtained  by  them  in  the  NEET.  Weightage  or  incentive  marks

specified in Regulation 9 are thus linked to the marks obtained by

the in-service candidate in the NEET and reckon the commensurate

experience  and  services  rendered  by  them  in  notified

remote/difficult areas of the State. That is a legitimate and rational

basis  to  encourage  the  Medical  Graduates/Doctors  to  offer  their

services and expertise in remote or difficult areas of the State for

some time. Indisputably, there is a wide gap between the demand

for basic health care and commensurate medical facilities, because

of the inertia amongst the young doctors to go to such areas. Thus,

giving specified incentive marks (to eligible in-service candidates) is

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permissible differentiation whilst determining their merit. It is an

objective method of determining their merit.  

25. Coming to the next decision pressed into service in the case of

State of M.P. & Ors. Vs. Gopal D. Tirthani & Ors.4, it was a case

of conducting separate entrance test for in-service candidates. That

was frowned upon by this Court.  The Court, however, suggested

modality of preparing two separate merit list for the two categories

and  merit  inter  se  of  the  successful  candidates  to  be  assessed

separately in the two respective categories. The Court had examined

the question as to whether weightage can be given to doctors for

having rendered specified number of years of service in rural/tribal

areas  to  determine  the  inter  se  merit.  The  Court  analyzed  four

earlier decisions of this Court; to wit,  Dinesh Kumar (Dr.) (II) Vs.

Motilal Nehru Medical College5, Snehelata Patnaik (Dr.) Versus

State of Orissa6, Narayan Sharma (Dr.) Versus Pankaj Sharma

4

  2003 (7) SCC 83 5

 (1986) 3 SCC 727 6

 (1992) 2 SCC 267

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Kr. Lenkar7 and State of U.P. Versus Pradip Tandon8. The Court

in paragraph 33 observed thus:

“……….The case at hand presents an entirely different  scenario.  Firstly,  it  is  a  case  of post-graduation within the State and not an all-India quota. Secondly, it is not a case of reservation, but one of only assigning weightage for service rendered in rural/tribal areas. Thirdly, on the view of the law we  have  taken  hereinabove,  the  assigning  of weightage for service rendered in rural/tribal areas does not at all affect in any manner the candidates in  open  category.  The  weightage  would  have  the effect of altering the order of merit only as amongst the  candidates  entering  through  the  exclusive channel  of  admissions  meant  for  in-service candidates  within  the  overall  service  quota.  The statistics set out in the earlier part of the judgment provide ample justification for such weightage being assigned. We find merit and much substance in the submission of the learned Advocate-General for the State  of  Madhya  Pradesh  that  Assistant  Surgeons (i.e.  medical  graduates entering the State services) are not temperamentally inclined to go to and live in villages so as to make available their services to the rural population: they have a temptation for staying in  cities  on  account  of  better  conditions,  better facilities and better quality of life available not only to  them but  also  to  their  family  members  as  also better educational facilities in elite schools which are to be found only in cities. In-service doctors being told  in  advance  and  knowing  that  by  rendering service in rural/tribal areas they can capture better

7

 (2000) 1 SCC 44 8

 (1975) 1 SCR 267

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prospects  of  earning  higher  professional qualifications,  and  consequently  eligibility  for promotion, acts as a motivating factor and provides incentive  to  young  in-service  doctors  to  opt  for service in rural/tribal areas. In the set-up of health services  in  the  State  of  Madhya  Pradesh  and  the geographical distribution of population, no fault can be found with the principle of assigning weightage to be  service  rendered  in  rural/tribal  areas  while finalizing  the  merit  list  of  successful  in-service candidates for admission to PG courses of studies. Had it been a reservation considerations would have differed.  There  is  no  specific  challenge  to  the quantum of  weightage  and  in  the  absence  of  any material  being  available  on  record  we  cannot  find fault  with  the  rule  of  weightage  as  framed.  We hasten to add that while recasting and reframing the rules, the State Government shall take care to see that  the  weightage  assigned  is  reasonable  and  is worked  out  on  a  rational  basis.”   (emphasis supplied)

26. However,  in  the  present  case,  the  Medical  Council  of  India

itself has framed a Regulation predicating one merit list by adding

the  weightage  of  marks  assigned  to  in-service  candidates  for

determining their merit in the NEET.

27. The  imperative  of  giving  some  incentive  marks  to  doctors

working  in  the  State  and  more  particularly  serving  in  notified

remote  or  difficult  areas  over  a  period  of  time  need  not  be

underscored. For,  the concentration of doctors is in urban areas

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and the rural areas are neglected. Large number of posts in Public

Health Care Units in the State are lying vacant and unfilled in spite

of sincere effort of the State Government. This problem is faced by

all States across India. This Court in Dr.Snehelata’s case (supra)

had  left  it  to  the  Authorities  to  evolve  norms  regarding  giving

incentive marks to the in-service candidates. The Medical Council of

India  is  an  expert  body.  Its  assessment  about  the  method  of

determining merit of the competing candidates must be accepted as

final (State of Kerala V. T.P.Roshana9; also see MCI V. State Of

Karnataka10). After due deliberations and keeping in mind the past

experience, Medical Council of India has framed Regulations inter

alia  providing for  giving incentive  marks to  in-service  candidates

who have worked in notified remote and difficult areas in the State

to determine their merit. The Regulation, as has been brought into

force,  after  successive  amendments,  is  an  attempt  to  undo  the

mischief.  

9

 (1979)1 SCC  572 (para 16) 10

 (1998) 6 SCC 131

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28. As  aforesaid,  the  real  effect  of  Regulation  9  is  to  assign

specified marks commensurate with the length of service rendered

by the candidate in notified remote and difficult areas in the State

linked  to  the  marks  obtained  in  NEET.  That  is  a  procedure

prescribed in the Regulation for determining merit of the candidates

for admission to the Post Graduate “Degree” Courses for a single

State.  This  serves  a  dual  purpose.  Firstly,  the  fresh  qualified

Doctors will be attracted to opt for rural service, as later they would

stand a good chance to get admission to Post Graduate “Degree”

Courses of their choice. Secondly, the Rural Health Care Units run

by the Public Authority would be benefitted by Doctors willing to

work in notified rural or difficult areas in the State. In our view, a

Regulation such as this subserves larger public interest. Our view is

reinforced  from  the  dictum  in  Dr.  Snehelata  Patnaik’s case

(supra). The three Judges’ Bench by a speaking order opined that

giving incentive marks to in-service candidates is inexorable. It is

apposite to refer  to the dictum in the said decision which reads

thus:

“We  have  already  dismissed  the  writ  petition  and special leave petitions by our order dated December 5,

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1991. We would however, like to make a suggestion to the  authorities  for  their  consideration  that  some preference might be given to in-service candidates who have done five years of rural service. In the first place, it is possible that the facilities for keeping up with the latest medical literature might not be available to such in-service  candidates  and  the  nature  of  their  work makes it difficult for them to acquire knowledge about very  recent  medical  research  which  the  candidates who have come after freshly passing their graduation examination might have. Moreover, it might act as an incentive to doctors who had done their graduation to do rural service for some time. Keeping in mind the fact  that  the rural  areas had suffered grievously  for non-availability  of  qualified  doctors  giving  such incentive would be quite in order. Learned counsel for the respondents has, however, drawn our attention to the decision of a Division Bench of two learned Judges of  this  Court  in  Dr.  Dinesh  Kumar  v.  Motilal  Nehru Medical College, Allahabad. It has been observed there that merely by offering a weightage of 15 per cent to a doctor for three years’  rural  service would not bring about a migration of doctors from the urban to rural areas.  They  observed  that  if  you  want  to  produce doctors who are MD or MS, particularly surgeons, who are  going  to  operate  upon  human  beings,  it  is  of utmost importance that the selection should be based on merit. Learned Judges have gone on to observe that no weightage should be given to a candidate for rural service  rendered  by  him  so  far  as  admissions  to post-graduate courses are concerned (see para 12 at page 741).

In our opinion, this observation certainly does not constitute the ratio of the decision. The decision is in no way dependent upon these observations. Moreover, those  observations  are  in  connection  with  all  India Selection and do not have equal force when applied to selection  from  a  single  State.  These  observations,

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however, suggest that the weightage to be given must be the bare minimum required to meet the situation. In these circumstances,  we are of  the view that  the authorities might well consider giving weightage up to a  maximum  of  5  per  cent  of  marks  in  favour  of in-service candidates who have done rural service for five  years  or  more.  The  actual  percentage  would certainly  have  to  be  left  to  the  authorities. We also clarify that these suggestions do not in any way confer any legal right on in-service students who have done rural  service  nor  do  the  suggestions  have  any application to the selection of the students up to the end of this year.” (emphasis supplied)

29. The crucial question to be examined in this case is: whether

the norm specified in Regulation 9 regarding incentive marks can

be  termed  as  excessive  and  unreasonable?  Regulation  9,  as

applicable,  does  not  permit  preparation  of  two  merit  lists,  as

predicated  in  the  case  of  Tirthani (supra).  Regulation  9  is  a

complete  Code.  It  prescribes  the  basis  for  determining  the

eligibilities of the candidates including the method to be adopted for

determining  the  inter  se  merit,  on the  basis  of  one  merit  list  of

candidates  appearing  in  the  same  NEET  including  by  giving

commensurate weightage of marks to the in-service candidates.  

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30. As aforesaid, Regulations have been framed by an Expert Body

based on past experience and including the necessity to reckon the

services  and  experience  gained  by  the  in-service  candidates  in

notified  remote  and  difficult  areas  in  the  State.   The  proviso

prescribes  the  measure  for  giving  incentive  marks  to  in-service

candidates who have worked in notified remote and difficult areas

in  the  State.  That  can  be  termed  as  a  qualitative  factor  for

determining  their  merit.   Even  the  quantitative  factor  to  reckon

merit of the eligible in-service candidates is spelt out in the proviso.

It  envisages giving  of  incentive  marks at  the  rate  of  10% of  the

marks obtained for each year of service in remote and/or difficult

areas up to 30% of the marks obtained in NEET.  It is an objective

method of  linking the  incentive  marks to  the marks obtained in

NEET by the candidate. To illustrate, if an in-service candidate who

has worked in a notified remote and/or difficult area in the State for

at least one year and has obtained 150 marks out of 200 marks in

NEET,  he  or  she  would  get  15  additional  marks;  and  if  the

candidate  has  worked  for  two  years,  the  candidate  would  get

another 15 marks.  Similarly if the candidate has worked for three

years and more,  the candidate would get a further 15 marks in

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addition  to  the  marks  secured  in  NEET.   15  marks  out  of  200

marks in that sense would work out to a weightage of 7.5% only, for

having served in notified remote and/or difficult areas in the State

for one year.  Had it been a case of giving 10% marks enbloc of the

total  marks  irrespective  of  the  marks  obtained  by  the  eligible

in-service  candidates  in  NEET,  it  would  have  been  a  different

matter.   Accordingly,  some  weightage  marks  given  to  eligible

in-service candidate linked to performance in NEET and also the

length of service in remote and/or difficult areas in the State by no

standard can be said to be excessive, unreasonable or irrational.

This provision has been brought into force in larger public interest

and not merely to provide institutional preference or for that matter

to create separate channel for the in-service candidate, muchless

reservation.  It is unfathomable as to how such a provision can be

said to be unreasonable or irrational.

31. Here, it may be necessary to deal with the decision of a two

Judges’  Bench of  this  Court  in  Satyabrata Sahoo and others

(supra).   The  Court  was  called  upon  to  consider  the  validity  of

Clause 11.2 of the “Prospectus” for selection of candidates for Post

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Graduate (Medical) Courses in the Government Medical Colleges of

Odisha for  the  Academic  Year  2012.   The  challenge  to  the  said

clause in the prospectus was by direct candidates, inter-alia, on the

ground that it makes in road into the prospects of direct candidates

category.   It  was  contended  that  giving  weightage  of  marks  to

in-service  candidates  would  be  diluting  merit  to  the  extent  of

additional marks.  A total of 173 seats available for the category

MD/MS course was split into 87 seats for in-service category and

86  seats  to  direct  category.   The  argument  was  that  if  all  the

candidates - be it direct or in-service candidates - were required to

appear in a common entrance test examination and the admission

criteria is only comparative merit, the arrangement specified in the

prospectus was impermissible. The Court considered Clause 11.2 of

the  prospectus  issued  by  the  PG(Medical)  Selection  Committee,

2012 and took the view that giving incentive marks to in-service

candidates results in encroachment or an in road or appropriation

of seats earmarked for open market candidates (direct admission

category) who compete strictly on the basis of merit. The Court held

that the arrangement provided in Clause 11.2 of the Prospectus was

violative of the merit criteria specified in Clause 9 (1)(a) of the MCI

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Regulation.  It held that seats for direct category or open category is

a homogeneous class which consists of all categories of candidates

who are fresh from college, who have rendered service after MBBS

in Government or private hospitals in remote or difficult areas like

hilly, tribal and rural areas and so on.  All of them have to compete

on  merit  in  the  direct  candidate  category,  subject  to  rules  of

reservation and eligibility.  The Court further noticed that except

the State of Odisha and to some extent the State of  Tamil Nadu

none of the other States in India have incorporated such a clause in

their prospectus for the Post Graduate Medical Courses.  The Court

also quashed the proviso to Clause 9(2)(d) of the MCI Regulations as

applicable  in  that  case,  to  the  extent  indicated above.  From the

issues formulated in paragraph 15 of this reported decision, it is

evident that the challenge of direct candidates was about allowing

in-service  candidates  to  compete  for  seats  earmarked  for  direct

category  by  giving  weightage  of  marks.   In  the  present  case,

however, there is no separate channel for two categories in respect

of Post Graduate “Degree” Courses, as was the dispensation in that

case. On the other hand, only one merit list is prepared and all

available seats in terms of Regulation 9 are thrown open to both

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categories of candidates.  The proviso to Clause IV of Regulation 9

in  force  (corresponding  to  third  proviso  to  Regulation  9(2)  as

extracted in the interim order dated 12.05.2016), as interpreted by

us,  is  in  the  nature  of  giving  additional  marks  as  incentive  to

in-service  candidates,  commensurate  with  length  of  service  in

notified remote/difficult areas in the State and also dependent on

marks  obtained  by  them in  NEET.   In  our  opinion,  neither  the

decision in  Tirthani nor the case of  Satyabrata Sahoo will have

any application to the admissions to Post Graduate Degree Courses

in the present case, to be taken forward on the basis of Regulation

9, as in force.  

32. Reverting to the recent decision of this Court in Sudhir N. and

Ors.  (supra), the two Judges’ Bench was dealing with the question

of selection of in-service medical officers for post-graduate medical

education  under  Section  5(4)  of  the  Kerala  Medical  Officers

Admission to Post-graduate Courses under the Service Quota Act,

2008.  The said provision has been extracted in paragraph 5 of the

reported decision.  It deals with the finalization of select list by the

Post-graduate  Course  Select  Committee  strictly  on  the  basis  of

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seniority in-service of the Medical Officers and following such other

criteria as may be prescribed.  Dealing with that challenge the court

noticed that  Regulation 9 is  a  complete  Code by itself  and then

proceeded to answer the question whether the State was competent

to enact law on the matter of  admission on the basis of  inter-se

seniority of candidates.  In that context the Court noted that the

basis of selection must be strictly as per norms specified in the MCI

Regulations.  Any law with regard to that will be beyond legislative

competence  of  the  State  legislature.   The  Court  noted  that

weightage  for  in-service  candidates  is  made  permissible  by

Regulation 9.   That  is  the  limited  departure  from the  merit  list

criteria permitted by the Regulation itself.  Neither in the case of

Sudhir N. (supra) nor in the case of Tirthani (supra) the Court had

the occasion to deal with the question regarding challenge to the

proviso to Clause IV of Regulation 9.   

33. The matter does not end here.  In the present proceedings,

however, large number of candidates who earlier found place in the

merit  list  have  been affected by  the  fresh merit  list  prepared in

terms of Order of this Court dated 12.05.2016.  As a result of giving

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effect  to  Regulation  9,  the  fresh  list  has  thrown  up  a  different

argument  for  consideration.   The  in-service  candidates  who  had

secured relatively less marks in NEET have been placed high up in

the order of merit consequent to addition of incentive marks @ 10%

of the marks for each year of service in the remote and/or difficult

areas upto the maximum of 30% of marks obtained in NEET (CET).

We  find  merit  in  the  submission  of  Mr.  Dwivedi,  learned  senior

counsel,  that  the  rights  of  such candidates to  be considered for

admission, is not affected.  What is affected is the opportunity to get

admission  in  a  college  or  subject  of  their  choice.   There  can,

however, be no right to get the subject or college of one’s choice.

The provision in the shape of Regulation 9 is to determine the merit

of the competing candidates.  Provision for giving incentive marks to

in-service candidates is permissible in law; and thus the proviso to

Clause IV in Regulation 9 must be upheld in larger public interest.

That provision has been introduced, inter-alia, also to address the

deficiency  and  lack  of  response  of  graduate  doctors  to  serve  in

remote or difficult areas in the State.  The scarcity of doctors in

villages has been felt for quite some time for which the provision in

the form of proviso to Clause IV of Regulation 9 was necessitated.

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This  concern  was  even  echoed  in  the  Rajya  Sabha.   Following

questions were raised which were duly answered by the Minister for

Health and Family Welfare on 23.12.2014.  The same read thus :-

“Questions

“……..

(a)The measures being taken by Government to make up for  the  extreme  shortage  of  qualified  and  skilled doctors for healthcare in rural areas;

(b)Whether  government  is  planning  to  introduce measures  to  measures  to  introduce  and  enforce compulsory rural postings for doctors, before or after they have obtained an MBBS degree;

(c) If so, the details thereof; and

(d)If not the reasons therefor?

Answers ……..

(a) At present, in order to encourage the doctors working in remote and difficult areas, the Medical Council of India  with  the  previous  approval  of  Central Government, has amended the Post Graduate Medical Education Regulations, 2000 to provide :-

I. 50% reservation in Post Graduate diploma Courses for Medical Officers in the Government service, who have served for at least three years in remote and difficult areas; and

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II. Incentive at the rate of 10% the marks obtained for each year in-service in remote or difficult area upto the maximum of 30% of the marks obtained in the entrance  test  for  admission  in  Post  Graduate Medical Courses.            (emphasis supplied)

(b)-(d): The proposal of Medical Council of India (MCI) to  amend  the  Post  Graduate  Medical  Education Regulations, which makes one year rural posting at the Public  Health  Centre  (PHC)  mandatory  for  a  MBBS student to apply for admission in a PG course is not yet notified.”                                    (emphasis supplied)

34. It was then contended that hitherto reservation for in-service

candidates was applicable only in respect of Government colleges

but  on  account  of  interim  directions  given  by  this  Court,

dispensation  of  giving  weightage  or  incentive  marks  as  per

Regulation 9 to the in-service candidates has been made applicable

across the board even to non-Government medical colleges where

the seats allocated to the State Government are to be filled up. In

our  opinion,  Regulation  9  per  se  makes  no  distinction  between

Government  and  non-Government  colleges  for  allocation  of

weightage of marks to in-service candidates.  Instead, it mandates

preparation of one merit list for the State on the basis of results in

NEET.  Further,  regarding in-service candidates,  all  it  provides is

that  the  candidate  must  have  been  in-service  of  a

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Government/public  Authority  and  served  in  remote  and  difficult

areas  notified  by  the  State  Government  and  the  Competent

Authority from time to time. The Authorities are, therefore, obliged

to continue with the admission process strictly in conformity with

Regulation 9. The fact that most of the direct candidates who have

secured higher marks in the NEET than the in-service candidates,

may not be in a position to get a subject or college of their choice,

and are likely to secure a subject or college not acceptable to them,

cannot be the basis to question the validity of proviso to Clause IV

of  Regulation  9.   The  purpose  behind  proviso  is  to  encourage

graduates to join as medical officers and serve in notified remote

and difficult areas of the State.  The fact that for quite some time no

such appointments have been made by the State Government also

cannot be a basis to disregard the mandate of proviso to Clause IV -

of giving weightage of marks to the in-service candidates who have

served for a specified period in notified remote and difficult areas of

the State.

35. Presumably, realizing this position writ petition has been filed

to challenge the validity of  proviso to Clause IV of  Regulation 9.

According to the writ petitioners, the prospectus provided for 30%

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reservation  in  favour  of  in-service  candidates  for  admission  to

post-graduate  medical  courses.   The  application  of  Regulation  9

results  in  an  absurd  situation  because  of  giving  weightage  to

specified in-service Medical Officers in the State.  There is neither

any committee set up nor guidelines made as to which area can be

notified as remote and difficult area.  The power vested in the State

is an un-canalized power and disregards the settled position that

for consideration after the graduate level, merit should be the sole

criteria.  Further, there is no nexus with the object sought to be

achieved for providing weightage to the extent of 10% of the marks

obtained by the candidate in the common competitive test and to

the extent of maximum of 30% marks so obtained.  Dealing with

this  contention,  we find that  the setting in which the proviso to

Clause  IV  has  been  inserted  is  of  some  relevance.   The  State

Governments across the country are not in a position to provide

health care facilities in remote and difficult areas in the State for

want of  Doctors.11  In fact there is a proposal to make one year

11

11.Rural Health Statistics for 2014-15 published by the Government of India, Ministry of  Health & Family Welfare depicting the shortage of doctors in rural areas particularly State of  Uttar Pradesh, which reads thus:  

Qualification       Required        Sanctioned      In position       Vacant         Shortfall      MBBS                    3497               4509                 2209                 2300            1288     Doctors at

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service for MBBS students to apply for admission to Post Graduate

Courses, in remote and difficult areas as compulsory. That is kept

on hold, as was stated before the Rajya Sabha. The provision in the

form of granting weightage of marks, therefore, was to give incentive

to the in-service candidates and to attract more graduates to join as

Medical Officers in the State Health Care Sector.  The provision was

first  inserted  in  2012.  To  determine  the  academic  merit  of

candidates, merely securing high marks in the NEET is not enough.

The academic merit of the candidate must also reckon the services

rendered for the common or public good.  Having served in rural

and difficult areas of the State for one year or above, the incumbent

having  sacrificed  his  career  by  rendering  services  for  providing

health care facilities in rural areas, deserve incentive marks to be

reckoned for determining merit. Notably, the State Government is

posited with the discretion to notify areas in the given State to be

remote,  tribal  or difficult  areas.  That declaration is  made on the

basis of decision taken at the highest level; and is applicable for all     Primary Health     Centres(“PHC’s”)     Specialists              3092              2099                     484               1615             2608    At Community    Health Centres    (“CHC’s”)  ______________________________________________________________________________________

_______

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the beneficial schemes of the State for such areas and not limited to

the matter  of  admissions to Post Graduate Medical  Courses.  Not

even one  instance  has  been brought  to  our  notice  to  show that

some areas  which are  not  remote  or  difficult  areas has  been so

notified.  Suffice  it  to  observe  that  the  mere  hypothesis  that  the

State Government may take an improper decision whilst notifying

the area as remote and difficult, cannot be the basis to hold that

Regulation 9 and in particular proviso to Clause IV is unreasonable.

Considering  the  above,  the  inescapable  conclusion  is  that  the

procedure  evolved in  Regulation 9 in  general  and the  proviso  to

Clause (IV) in particular is just,  proper and reasonable and also

fulfill the test of Article 14 of the Constitution, being in larger public

interest.

36. The last question that needs to be answered is whether the

arrangement directed in terms of order dated 12.05.2016 by this

Court should have prospective effect or also apply to admissions for

academic  year  2015-16.  Ordinarily,  as  the  subject  matter  of

challenge before the High Court was pertaining to Academic Year

2015-16, the dispensation directed in terms of Order dated 12th May

2016 should apply thereto. However, considering the fact that the

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said admission process has been completed and all concerned have

acted upon on that basis and that the candidates admitted to the

respective Post Graduate Degree Courses in the concerned colleges

have also commenced their studies, it may not be appropriate to

unsettle  that  position  given  the  fact  that  neither  the  direct

candidates nor the eligible in-service candidates who had worked in

remote and/or difficult areas in the State approached the Court for

such relief. It is only the in-service candidates who had not worked

in remote and/or difficult areas in the State approached the Court

for  equating  them  with  their  counterparts  who  had  worked  in

remote and/or difficult areas in the matter of reservation of seats

for  in-service  candidates.  If  at  this  distance  of  time,  the  settled

admissions were to be disturbed by quashing the entire admission

process for Academic Year 2015-16, it would inevitably result in all

the seats in the State almost over 500 in number remaining unfilled

for one academic year; and that the candidates to be admitted on

the basis of fresh list for Academic Year 2015-16 will have to take

fresh admission coinciding with the admissions for Academic Year

2016-17. That would necessitate doubling the strength of seats in

the  respective  colleges  for  the  current  Academic  Year  to

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accommodate all those students, which may not be feasible and is

avoidable.  In the peculiar facts on hand, we may instead mould the

relief in the appeals before us by directing all concerned to follow

the  admission  process  for  Academic  Year  2016-17  and  onwards

strictly in conformity with the Regulations in force, governing the

procedure  for  selection  of  candidates  for  Post  Graduate  Medical

Degree Courses and including determination of relative merit of the

candidates  who  had  appeared  in  NEET  by  giving  weightage  of

incentive marks to eligible in-service candidates.

37. We must hold that the High Court was justified in quashing

the stated Government Order providing for reservation to in- service

candidates, being violative of Regulation 9 as in force. However, we

modify the operative direction given by the High Court and instead

direct that admission process for Academic Year 2016-17 onwards

to the Post Graduate Degree Course in the State should proceed as

per  Regulation  9  including  by  giving  incentive  marks  to  eligible

in-service candidates in terms of proviso to Clause IV of Regulation

9  (equivalent  to  third  proviso  to  Regulation  9(2)  of  the  Old

Regulations reproduced in the interim order dated 12th May 2016).

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We, accordingly,  mould the operative order of  the High Court  to

bring it in conformity with the direction contained in the interim

order dated 12th May, 2016 but to be made applicable to Academic

Year 2016-17 onwards on the basis of Regulation 9 as in force. We

are conscious of the fact that this arrangement is likely to affect

some of the direct candidates, if not a large number of candidates

whose  applications  were  already  processed  by  the  competent

Authority for concerned Post Graduate Degree Course for Academic

Year  2016-17.  However,  their  admissions  cannot  be  validated in

breach of or disregarding the mandate of Regulation 9, as in force.

The appeals against the judgment of the High Court of Judicature

at Allahabad dated 7th April, 2016 are disposed of accordingly.

38. Reverting  to  the  second  set  of  appeals  arising  from  the

judgment of the High Court of Judicature at Allahabad, Lucknow

Bench dated  27th May  2016  in  Writ  Petition  No.12004/2016 we

have no hesitation in upholding the view taken by the High Court

that the direction to prepare fresh merit list vide interim order dated

12th May  2016  was  in  respect  of  only  such  eligible  in-service

candidates  as  had  submitted  applications  for  admission  to  Post

Graduate  Degree  Courses  for  the  relevant  academic  year  within

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stipulated time. The direction in the interim order dated 12 th May

2016  was  not  to  consider  all  similarly  placed  persons  (eligible

in-service  candidates)  irrespective  of  whether  they  had  made

applications  for  admission  to  Post  Graduate  Degree  Courses  or

otherwise. Hence, this appeal must fail.

39. In so far as Writ Petition No.372/2016 even that should fail as

we have held Regulation 9 to be a complete Code and a provision for

determining  inter-se  merit  of  the  candidates  including  by  giving

weightage  of  marks  as  incentive  to  eligible  in-service  candidates

who have worked in notified remote or difficult areas in the State,

which is just, reasonable and necessary in larger public interest.  

40. We make it clear that we have not examined the correctness of

the fresh merit list prepared by the concerned Authority in terms of

interim order dated 12.05.2016. If  any candidate is aggrieved on

account  of  wrong  placement  in  the  fresh  merit  list  or  being  in

violation of this decision, will be free to question the same by way of

appropriate proceedings. That challenge can be considered on its

own merit.

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41. Accordingly, the appeals as well as Writ Petition are disposed

of in the above terms and for the same reasons the accompanying

applications are also disposed of.  No order as to costs.

.........................................CJI   (T.S.Thakur)

............................................J.        (A.M.Khanwilkar)

............................................J.    (Dr.D.Y.Chandrachud)

New Delhi. August 16, 2016