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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5705-5706  OF 2012 [Arising out of SLP (Civil) Nos. 16201-16202 of 2012]

Satyaprata Sahoo & Ors. . Appellants

Versus

State of Orissa & Ors. . Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. Leave granted.

2. The  appellants,  who  have  appeared  in  the  Entrance  

Examination for Post-Graduate (Medical) Selection 2012, Odisha are  

challenging  the  validity  of  Clause  11.2  of  the  Prospectus  for  

selection of candidates for Post-Graduate (Medical) Courses in the  

Government  Medical  Colleges  of  Odisha  for  the  Academic  Year,  

2012, as violative of Article 14 of the Constitution of India.   

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3. The appellants appeared in the entrance examination as  租

irect candidates(Open Category) and have qualified purely on merit  

for  admission  to  Post  Graduate  (Medical)  Courses  2012  in  the  

Government Medical Colleges in Odisha.   The Prospectus issued for  

Post-Graduate  (Medical)  Selection,  2012,  Odisha  deals  with  the  

availability of the seats both in the category of direct as well as in-

service.  Clause 4 of the Prospectus gives the category-wise details  

of the seats for P.G. (Medical) Courses in three Government Medical  

Colleges in Odisha for the Academic Year 2012.   For the category  

MD/MS Course, in-service category, 87 seats are available and for  

direct  category,  86  seats  are  available,  totaling  173  seats.  

Appellants,  who  fall  under  the  category  of  direct  candidates,  as  

already indicated, are aggrieved by Clause 11.2 of the Prospectus  

which stipulates an additional weightage for candidates who are in  

employment  of  Government  of  Odisha/Government  of  Odisha  

undertaking / Government of India Public Undertaking located in  

Odisha  and  had  worked  in  Rural/Tribal/Backward  areas  while  

applying  through  the  category  of  direct  candidates.   Additional  

weightage  of  10%  of  marks  secured  in  the  P.G.  Entrance  

Examination  per  year  of  completion  of  service  in  --

Rural/Tribal/Backward areas, subject to the maximum of 30% of

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marks secured in the entrance examination, in service to be given to  

those candidates who apply through direct category.   

 4. Appellants submit that the above clause is wholly arbitrary,  

discriminatory  and  goes  contrary  to  the  ratio  laid  down by  this  

Court in State of M.P. & Ors. V. Gopal D. Tirthani & Ors. (2003)  

7 SCC 83 and Dr. Snehelata Patnaik & Ors. V. State of Orissa  

& Ors. (1992) 2 SCC 26.  Appellants have also prayed for quashing  

the Medical Council of India (in short 閃CI Notification No. 51210 of  

17.11.2009  providing  weightage  marks  to  in-service  candidates  

applying  through  the  direct  category,  which  according  to  the  

appellants,  is  a  clear  encroachment  and  appropriation  of  seats  

earmarked for the direct category candidates which has to be filled  

up  purely  on  merit,  subject  to  rule  of  reservation.  

Appellantschallenge was repelled by the learned single Judge of the  

Orissa High Court  as  well  as  the Division Bench.   Hence,  these  

appeals.

5. Shri Shyam Diwan, learned senior counsel appearing for the  

appellants submits that providing additional weightage marks to in-

service candidates who had rendered service in -

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Rural/Tribal/Backward areas  while  considering their  applications  

for  admission  through the  direct  candidate  category  amounts  to  

making an artificial differentiation between a homogenous class i.e.  

direct candidates and in-service candidates.  Learned senior counsel  

pointed out that on account of additional weightage benefit given to  

the doctors who have rendered less than five  years of  service in  

Rural/Tribal/Backward  areas  both  in  Government  of  Odisha  or  

Public Sector Undertakings owned by the State Government, will be  

an advantageous position and that  would amount to drawing an  

artificial  differentiation  between  a  homogeneous  class  i.e.  direct  

candidates and in-service candidates and also within the in-service  

candidates,  which  action  would  be  hit  by  Article  14  of  the  

Constitution of India.    

6. Learned senior counsel also pointed out that the same further  

amounts to providing horizontal reservation within the seats meant  

for in-service candidates.  Learned senior counsel pointed out that  

the admission through direct candidates route be made purely on  

merit on the basis of the common entrance examination and not on  

the basis of the additional weightage granted to a few doctors who --

had the advantage of serving in Rural/Tribal/Backward areas while

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in employment in Government of Orissa, Public Sector Undertakings  

owned by the State Government.    

7. Mrs.  Indu Malhotra,  learned  senior  counsel,  also  submitted  

that  such  candidates  can  always  come  through  the  in-service  

category,  a  normal  route  for  admission  to  PG  (Medical)  Course.  

Learned  senior  counsel  pointed  out  that  additional  weightage  is  

always available  to them when they come through the in-service  

category route, however, the same cannot be extended to them while  

applying for admission as direct category candidates, lest they may  

make  an  inroad  into  the  direct  category,  which  is  arbitrary,  

discriminatory  and  violative  of  Article  14  of  the  Constitution  of  

India.     

8. Shri Krishnan Venugopal, learned senior counsel contesting on  

behalf of the respondents, on the other hand, submitted that there  

is  no  illegality  in  Clause  11.2  of  the  Prospectus  which  gives  

additional  weightage  to  in-service  candidates  who  fall  under  the  

direct candidates route, as well as third proviso added after clause  

9(2)(d)  of  the  Post  Graduate  Medical  Education  (Amendment)  --

Regulations 2000 as amended by Post Graduate Medical Education  

(Amendment)  Regulation  2009  (Part  II)  vide  Notification  dated

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17.11.2009.  Learned senior counsel pointed out that classification  

of candidates as per Clause 6 and sub-clauses providing weightage  

marks  to  such  in-service  candidates  as  per  Clause  11.2  of  the  

Prospectus, cannot be termed as discrimination between direct and  

in-service  candidates  and  amongst  the  in-service  candidates.  

Learned senior counsel also pointed out that the weightage marks  

given  to  in-service  candidates  who  have  rendered  service  in  

Rural/Tribal/Backward  areas  and  qualified  in  the  entrance  

examination, cannot be termed as  塗 orizontal reservationas it is  

only the weightage of marks given for rendering service to the people  

in Rural/Tribal/Backward areas, in view of the law laid down by  

this Court in Gopal D. Tirthani (supra).    

9. Shri  Kirti  R.  Mishra,  learned  senior  counsel  appearing  on  

behalf  of  the  4th respondent,  submitted  that  the  prospectus  has  

been issued strictly in accordance with the Notification No. 51210  

dated 17.11.2009 issued by the Medical Council of India, whereby  

additional weightage marks given as an incentive for determining --

the merit in the entrance examination passed for P.G. admission.  

Learned senior counsel submitted that the weightage in marks is  

given as an incentive at the rate of 10% of the marks obtained up to

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maximum of 30% of the marks obtained for each year of service  

rendered in remote or difficult areas.  It was also pointed out that  

the additional benefit is an incentive only and by awarding such an  

incentive, there is no violation of Article 14 of the Constitution of  

India.  

 10. Learned counsel appearing for the MCI referred to the counter  

affidavit filed on its behalf and submitted that the third proviso to  

Regulation  9(2)(d)  of  the  Post  Graduation  Regulation,  2000  (as  

amended) does not provide for or contemplate any separate channel  

of  entry  for  in  service  candidates  in  admission  to  P.G.  Degree  

Courses like that provided for P.G. Diploma Courses.  The proviso  

only provides that a 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%  of  the  marks  obtained  in  the  

entrance  examination  and  has  secured  minimum  required  --

percentage  of  marks  for  government  service  rendered  in  

remote/difficult areas.

We heard counsels on either side at length.  

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11. Medical Council of India, in exercise of its powers conferred by  

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

1956,  framed  the  Postgraduate  Medical  Education  Regulations,  

2000.  Clause 9 of the Regulations 2000 deals with the selection of  

the postgraduate students.  Clause 9(1) was substituted in terms of  

Notification published in the Gazette of India on 20.10.2008 and the  

same now reads as follows:

“9(1)(a) Students  for  Post  Graduate  medical  courses  shall  be  selected  strictly on the  basis  of  their  Inter-se Academic Merit.

(b) 50%  of  the  seats  in  Post  Graduate  Diploma  Courses  shall  be  reserved  for  Medical  Officers  in  the  Government service, who have served 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.”

12. Clauses 9(1)(a) and  9(1)(b) when read together would indicate  

that 50% seats are earmarked for direct category candidates and --

50% seats are  earmarked for  in service category.   Clause 9(1)(a)  

clearly states that students for post graduate medical courses shall  

be selected strictly on the basis of their inter-se academic merit and  

Rule  9(1)(b)  states  that  50%  of  the  seats  stand  reserved  for  in  

service candidates who have at least three years service in remote  

and difficult areas.

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13. The methodology to be adopted for determining academic merit  

is provided in Clause 9(2), which is relevant for our purpose and  

hence extracted hereunder:

“9(2) For  determining  the  羨 cademic  Merit  the  University/Institution  may  adopt  the  following  methodology:-

a On  the  basis  of  merit  as  determined  by  a  祖 ompetitive testconducted 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

a On  the  basis  of  merit  as  determined  by  a  centralized competitive test  held at the national  level; or

a On  the  basis  of  the  individual  cumulative  performance at the first, second and third MBBS  examinations provided admissions are University  wise.  Or

a Combination of (a) and (c)

Provided  that  wherever  薦 ntrance  Testfor  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

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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.”

14. However, the following proviso was added after clause 9(2)(d) in  

terms of Gazette Notification published on 17.11.2009 and the same  

reads as follows:  

“Further provided that in determining the merit and  the entrance test for postgraduate admission 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 upto the maximum of 30% of the  marks obtained.”

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15. Above Clause 9,  therefore,  stipulates the methodology to be  

adopted for determining the inter-se academic merit of candidates  

who  fall  under  direct  category  and  of  those  candidates  who  

ultimately fall under 50% seats reserved for in-service candidates.  

Clause  9(1)(a)  clearly  stipulates  that  students  for  postgraduate  

medical courses shall be  selected strictly on the basis of “inter-se  

academic merit   The main controversy in this case is whether the  

candidates from direct admission category has to be selected strictly  

on the basis of their inter-se academic merit or whether it is legal to  

dilute the merit to the extent as indicated in the third Proviso to

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Clause 9(2)(d). Candidates who fall in the direct candidates category,  

whether they are fresh from the college or serving elsewhere, either  

on  Government  service  or  under  public-sector  undertakings,  

working in rural/Tribal area or otherwise or doctors who are serving  

in  private  hospitals  or  nursing  homes  etc.  situate  in  remote  or  

difficult area, all fall in that direct category and all of them have to  

take a common entrance examination and admission criteria is only  

comparative merit.  When the comparative merit is the only criteria  

in the open category, the question is whether a weightage can be  

given exclusively to those candidates who are in -service of State of  

Odisha/Government  of  Odisha  undertaking,  whether  

contractual/temporary/ad-hoc/regular on the ground that they had  

worked in rural/tribal/backward areas.  It may be noted that 50%  

seats have already been earmarked for such category of candidates  

which they can always claim depending upon the inter-se merit after  

complying with other eligibility criteria.  Question is whether those  

in-service candidates can appropriate seats from the open category  

where seats are only few.

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16. Clause  11.2  in  the  Prospectus  issued by  the  P.G.  (Medical)  

Selection Committee 2012, giving additional weightage to those in-

service candidates, reads as follows:

“11.2 Those  in-service  candidates  who  have  qualified  in  the  Entrance  Examination  and  worked  in  Rural/Tribal/Backward  areas  shall  be  awarded  an  additional weightage of 10% of the marks secured in the  P.G. Entrance Examination per year of completion service  (in Rural/Tribal/Backward areas),  subject to maximum  of 30% of marks secured in entrance examination, vide  MCI  Notification  No.51210/  dt.17.11.2009  (In  Form  No.Appendix-III(A)).”

Candidates fall  under the Direct Category is provided under  

Clause 6 of the Prospectus, which reads as follows:

“6. CATEGORY OF CANDIDATES:

6.1. A  Direct  Candidate  is  one  who  at  the  time  of  application:  

6.1.1  Is  son/daughter/spouse  of  a  person  who  has  served in Defence Service for minimum of 5 years by 31st  December, 2011.

6.1.2   Is  either  unemployed or  in the employment of  Government of  Odisha, but not completed five years of  service which includes all categories of employment like  contractual/temporary/ad-hoc/regular by 31st December,  2011

6.1.3   in the employment of Govt. of Orissa Public Sector  Undertaking/Govt.  of  India  Public  Sector  Undertaking  located  in  Odisha.   The  employer  has  to  sponsor  the  candidates  for  entire  period  &  must  submit  the  sponsorship certificate as in Appendix III.”

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Clause 6.2 deals with In-service candidate which reads as  

follows:

“6.2   An In-service candidate is one who at the time of  application:

6.2.1   Is in the employment of Government of Odisha  and has completed a length of 5 years of service which  includes  all  categories  of  employment  like  contractual/temporary/  ad-hoc/  regular  by  31st  December, 2011, excluding at-a-stretch leave of any kind,  of  30  days  or  more.   However,  the  maternity  leave  is  exempted  from  this  exclusion  and  shall  be  counted  towards the length of five years of service.

Note:   In-service  and Direct  candidates  in employment  under Government of Odisha at the time of application - are advised to submit their applications along with the  required  documents  directly  to  the  Convenor,  P.G.  (Medical) Selection Committee 2012, under intimation to  their  Employer.   Copy  of  such  intimation  is  to  be  attached.”

17. Clauses 6.1, 6.2 and 11.2, quoted above, clearly recognize two  

categories of candidates i.e. 電 irectand 妬 n-service  泥 irectis a very  

wide  category  (open  category)  where  students  for  P.G.  Medical  

Courses shall be selected strictly on the basis of inter-se academic  

merit,  as  determined  by  a  competitive  test  and  in-service  is  a  

restricted category  of  candidates  who are  in  service  of  the  State  

Government/State  owned  undertakings.  The  details  of  the

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availability  of  seats  are  provided  in  Clause  4  of  the  prospectus  

which is as follows:

“Category-wise Distribution of Seats

Category  MD/MS  Course

Unreserved Total

ST(12%) SC(8%) PH(3%) Defence(3%) Greencard (5%)

In-service 62 10 7 3 0 5 87 Direct 59 11 7 2 3 4 86 Total 121 21 14 5 3 9 173

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18. Seats in the direct category are also reserved for members of  

SC/ST communities and also to those SC/ST candidates migrated  

from their state of origin subject to certain conditions.  Clause 6.4  

reserves seats for children or spouse of service/Ex-service personnel  

(Defence).  Clause 6.5 states that seats are reserved for physically  

handicapped candidates also subject to rules governing them.  In  

other  words,  several  reserved  candidates  have  also  to  be  

accommodated in the 50% Open Category.  50% seats ear marked  

for  the  in-service  candidates  is  kept  intact,  for  which  in-service  

candidates can always aspire and if  they satisfy the condition of  

rural/Tribal service, they will definitely get weightage.  

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19. Now by virtue of third proviso to Clause 9(2)(d) and clause 11.2  

of the Prospectus candidates who fall under the in-service category  

are given a weightage through which they can make an in-road into  

the  direct  candidates  category  while  retaining  their  rights  to  get  

admission for P.G. Course through in-service category.  Appellants  

lament that already 66% reservation is there in the State for P.G.  

Admissions,  including  all  reservations  and  only  34%  seats  are  

available  for  direct  unreserved  category  on  merit  and  if  third  --

proviso to Clause 9(2)(d) of the M.C.I. Regulation and Clause 11.2 of  

the  Prospectus  are  given  effect  to   then  those  seats  would  be  

occupied  by  the  in-service  candidates  large  in  number  and  

candidates who comes strictly  on the basis of  merit  through the  

competitive examination will have to stand out.   

20. This Court in Gopal D. Tirthani (supra) upheld the allocation  

of 20% seats for in-service candidates and held that weightage can be   

given to  in-service  candidates for  their  having rendered specified  

number of years of service in rural/tribal areas which is not hit by  

Article  14  of  the  Constitution  of  India.   This  Court  held  that  

allocation of 20% of seats in Post Graduation in the University of  

Madhya Pradesh for in-service candidate is not a reservation, it is a

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separate  and exclusive  channel  of  entry  or  source  of  admission,  

validity  thereof  cannot  be  determined  on  the  constitutional  

principles applicable to communal reservations.  Having so said, the  

Court held as follows:

“33.  …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 area does not at all affect in  any manner the candidates in open category. ……..”

21. Therefore, in Tirthani case, it has been categorically held that  

it  is  permissible  to  assign  a  reasonable  weightage  to  services  

rendered in rural/tribal areas by the in-service candidates for the  

purpose of determining inter se merit within the class of in-service  

candidates who have qualified in the pre-PG test by securing the  

minimum qualifying marks as prescribed by the Medical Council of  

India.  Regulation 9 framed by the Medical Council of India was also  

noticed by this Court so also the existence of  two categories:  (1)  

direct category (open category) candidates and (2) in-service category  

candidates.   Weightage given for  rendering service in rural/tribal  

areas, so far as in-service candidates, was upheld noticing that the

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assigning  of  weightage  for  service  rendered  in  rural/tribal  areas  

would not affect in any manner the candidates in open category.

22. We may, in this connection, refer to few earlier judgments in  

the  matter  of  giving  weightage  to  in-service  candidates  although  

those decisions were also considered in Tirthani case.  In State of  

-U.P. and Others. v. Pradip Tandon and Others. (1975) 1 SCC  

267, reservation in favour of people in 塗 ill areasand Uttarakhand  

was  held  to  be  constitutionally  valid  as  they  were  socially  and  

educationally backward classes of citizens.  Reservation in favour of  

途 ural areaswas found difficult to accept as it  was sought to be  

justified on the test of poverty as the determining factor of social  

backwardness.  This Court held that rural element did not make a  

class by itself because it could not be accepted that the rural people  

were necessarily poor or socially and educationally backward just as  

the urban people were not necessarily rich.  What was being dealt  

with in Pradip Tandon case was a reservation and not a weightage.  

Later in Dinesh Kumar (Dr.) (II) v. Motilal Nehru Medical College  

(1986) 3 SCC 727, the two-Judges Bench examined a scheme of  

examination for admission to postgraduate courses suggested by the  

Government of India stipulating a weightage equivalent to 15 per

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cent  of  the  total  marks  obtained  by  a  student  at  the  All-India  

Entrance Examination, being given if he had put in a minimum of 3  

years of rural service.  In that case, of course, this Court observed  

that it was eminently desirable that some incentive should be given  

to  the  doctors  to  go  to  the  rural  -areas  because  there  was  

concentration of  doctors in the urban areas and the rural  areas  

appeared to be neglected.   The observation made in Dinesh Kumar  

case was considered by three-Judges Bench of this Court in Dr.  

Snehelata  Patnaik (supra)  and  this  Court  opined  that  the  

authorities might well consider giving weightage upto maximum of 5  

per cent of marks in favour of in-service candidates who had done  

rural service for five years or more, the determination of which have  

to be made by the authorities.   

23. We have referred to the above mentioned judgments only to  

indicate  the  fact  that  this  Court  in  various  judgments  has  

acknowledged the fact that weightage could be given for doctors who  

have rendered service in rural/tribal  areas but that  weightage is  

available  only  in in-service  category,  to  which 50%  seats  for  PG  

admission has already been earmarked.  The question is whether,  

on the strength of that weightage, can they encroach upon the open

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category, i.e direct admission category.  We are of the view that such  

encroachment  or  inroad  or  appropriation of  seats  earmarked  for  

open  category  candidates  (direct  admission  category)  would  --

definitely affect the candidates who compete strictly on the basis of  

the merit.

24. The  purpose  and  object  for  giving  weightage  to  in-service  

candidates who have rendered rural/tribal service is laudable and  

their interest has been taken care of by the Medical Council of India  

as  well  as  the  prospectus  issued  for  admission  to  the  various  

medical colleges in State of Odisha but they have to come through  

the proper channel i.e. the channel exclusively earmarked for in-

service  candidates  and  not  through  the  channel  earmarked  for  

candidates in the open category.  The in-service candidates are also  

free to compete through the open category just like any other who  

fall under that category.  Further, it is also relevant to note those  

who  get  admission  in  post  graduate  courses  through  the  open  

category  have  to  execute  a  bond  stating  that  they  would  serve  

rural/tribal  areas  after  completion of  their  post-graduation.    In  

fact,  weightage  is  given  to  those  candidates  who  have  rendered  

service in rural/tribal areas when they compete for admission to PG

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(Medical)  Courses in in-service category for  whom 50% seats are  

earmarked.

25. We also find another fallacy in Clause 11.2 read with Clause  

6.2.1 of the prospectus.  Clause 6.2.1 of the prospectus says in-

service candidate is one who at the time of  application is in the  

employment in Government of Odisha and has completed a length  

of 5 years of service which include all categories of employment like  

contractual/temporary/ad-hoc/regular  by  31st December  2011.  

Therefore,  a  doctor  who is doing rural  service  on contract  or  on  

temporary basis or on ad hoc basis by 31st December 2011 will also  

get the benefit.   At the same time,  the candidates who pass out  

MBBS either in regular service or in contractual / temporary/ ad  

hoc in a  private  hospital  even though serving in a  remote/tribal  

areas would not get that benefit even though those doctors are also  

rendering the same service.  Every doctor who goes out of medical  

college after MBBS would not get an opportunity to serve in a rural/  

tribal  area  by  way  of  contractual/temporary/ad-hoc  or  regular  

service offered by the State of Odisha or a public sector.   Few may  

fall in that category for various reasons and they get an advantage

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and those who get that advantage of course can, claim weightage  

when they are being considered in the in-service category.   

26.  We notice that the seats earmarked for the open category by  

way of merit are few in number and encroachment by the in-service  

candidates into that open category would violate clause 9(1)(a) of the  

MCI regulations, which says students for PG medical courses shall  

be selected strictly on the basis of the inter se academic merit i.e. on  

the basis of  the merit  determined by the competent test.   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 and difficult areas like hilly areas, tribal and rural areas and  

so on.   All of them have to complete on merit being in the direct  

candidate  category,  subject  to rules of  reservation and eligibility.  

But there can be no encroachment from one category to another.  

Candidates of in-service category cannot encroach upon the open  

category, so also vice-versa.

27. We find, except State of Odisha and, to some extent, State of  

Tamil  Nadu,  none of  the other  States in India,  has incorporated  

such  a  clause  in  any  of  their  prospectus  for  admission  to  the

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graduate medical courses and students who fall under the open --

category  in  those  States  are,  therefore,  not  affected  by  such  

weightage.  

28. Medical Council of India in the counter affidavit raised some  

objections for giving admissions beyond the sanctioned admission  

capacity.  Reference was made to Section 10A of the MCI Act which  

provides  that  admissions  can  be  made  by  Medical  Colleges  only  

within  sanctioned  capacity  for  which  permission  under  Section  

10A/recognition under Section 11(2) has been granted.  This Court  

in  State of  Punjab and Others v.  Renuka Singla and Others  

(1994) 1 SCC 175 held that the High Court or the Supreme Court  

cannot be generous or liberal in issuing such directions which in  

substance amount to directing the authorities concerned to violate  

their own statutory rules and regulations, in respect of admissions  

of  students.   Technical  education,  including  medical  education,  

requires infrastructure to cope with the requirement of giving proper  

education  to  the  students,  who  are  admitted.   Taking  into  

consideration, the infrastructure, equipment, staff, the limit of the  

number of admissions is fixed by the Medical council of India.

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29. Further, in Medical Council of India v. State of Karnataka  

(1998) 6 SCC 131, this Court held the number of students admitted  

cannot be over and above that fixed by the Medical Council as per  

the  Regulations  and  that  seats  in  medical  colleges  cannot  be  

increased indiscriminately without regard to proper infrastructure  

as per the Regulations of the Medical Council.

30. In  Mriduldhar (Minor) and another v. Union of Indiaand  

Others (2005) 2 SCC 65, this Court held as follows:

“Having  regard  to  the  professional  courses  into  consideration,  it  deserves  to  be  emphasized  that  all  concerned  including  Governments,  State  and  Central  both,  MCI/DCI,  colleges,  new or old,  students,  Boards,  universities,  examining  authorities  etc.  are  required  to  strictly  adhere to time schedule  wherever  provided for;  there  should  not  be  mid-stream  admission;  admission  should not be in excess of sanctioned intake capacity or  in  excess  of  quota  of  any  one,  whether  Stare  or  Management. The carrying forward of any unfilled seats  of one academic year to next academic year is also not  permissible.”

31. It  is unnecessary to multiply the judgment rendered by this  

Court,  on  this  point,  the  question  is  how  to  mould  the  reliefs,  

especially when we cannot, in the facts and circumstance of the --

case, direct the State of Odisha and the Medical Council of India to  

increase  the  seats  so  as  to  accommodate  the  appellants.   Seats

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which are legitimately due to the appellants are being occupied by  

the candidates from in-service category.

32. Contention was raised by learned counsel, appearing for some  

of the in-service candidates who got admission that they shall not be  

displaced  since  they  have  already  left  their  jobs  from  the  State  

Government service or the State owned undertakings after having  

got admission for P.G. (Medical) Course.  But, going by the stand  

taken by MCI and on the basis of the decided cases of this Court, it  

would not be possible to increase the seats,  however,  candidates  

who are meritorious should get admission.    

33. Contention was raised that all the affected candidates were not  

made parties  to the writ  petition and,  therefore,  without hearing  

them,  no orders  shall  be  passed against  them thereby depriving  

them of their seats.  Learned counsel for the appellants has stated  

that they had approached the High Court of Orissa on 13.01.2012  

i.e soon after the prospectus was issued and the declaration of the  

provisional merit list took place on 10.04.2012 subsequent to the --

filing  of  the  writ  petition.   Learned  Single  Judge  rendered  the  

judgment before the results were declared on 23.03.2012 and the  

Division  Bench  dismissed  the  appeal  on  09.04.2012.   The  first

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counseling  was  conducted  between  21.04.2012  to  23.04.2012.  

Since the appellants had approached the court on 13.01.2012 and  

the matter was sub judice before a court of law and this proceeding  

is  only  a  continuation  of  the  writ  petition  filed  by  them  on  

13.01.2012, we are, of the view, that the admissions given to the in-

service candidates necessarily would be subject to the outcome of  

the petitions pending before the court of law.  Therefore, in our view,  

non-impleadment of  few of those candidates in these proceedings  

would not affect the legitimate claim raised by the appellants.   

34. Learned  counsel  appearing  for  the  contesting  respondents  

submitted that they are undergoing studies from May 2012 onwards  

and, at this distance of time, if they are displaced, that will cause  

serious  injustice  to  them  since  they  have  already  left  the  

government service/public sector undertakings for joining the post  

graduate course.  In view of the stand taken by the Medical Council  

-of India that seats for post-graduate courses cannot be increased,  

we are inclined to give a direction to the State of Odisha or their  

undertakings  to  take  back  the  in-service  candidates  into  their  

service and permit them to serve in the rural/tribal areas so that  

they can compete through the category of in-service candidates in

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the  50%  seats  earmarked  for  them  for  admission  to  the  post-

graduate course.   

35. We are, therefore, inclined to allow this appeal and set aside  

the judgment of the Division Bench as well as learned Single Judge  

by quashing the proviso to clause 9(2)(d) of the MCI regulations to  

the extend indicated above as well as clause 11.2 of the prospectus  

issued  for  admission  to  the  Post  Graduate  Medical  Examination  

2012  in  the  State  of  Odisha.  The  State  of  Odisha,  the  Medical  

Council of India and respondents 1 to 4 are directed to take urgent  

steps to re-arrange the merit list and to fill up the seats of the direct  

category, excluding in-service candidates who got admission in the  

open category on the strength of weightage, within a period of one  

week from today and give admission to the open category candidates  

strictly on the basis of merit.

-

36. Appeals are allowed and the judgments of the High Court are  

set aside accordingly.  

………………..J (K.S. Radhakrishnan)

………………..J.

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(Dipak Misra) New Delhi, August 3, 2012