REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL)  NO(S).196/2018

TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS.     PETITIONER(S)

VERSUS

UNION OF INDIA & ORS.                              RESPONDENT(S)

WITH W.P.(C) NO. 252/2018 W.P.(C) NO. 295/2018 W.P.(C) NO. 293/2018

O R D E R

1. Issue notice in the fresh writ petitions.

2. Standing Counsel for the concerned States, Union

of  India  and  Medical  Council  of  India  appear  and

accept notice for the respective parties.

3. In  these  writ  petitions,  Regulation  9(IV)  and

(VII), after amendment dated 05.04.2018 – Regulation

9(4) and (8) of the Post Graduate Medical Education

Regulations, 2000, as framed by the Medical Council

of India, are under challenge.

4. To get a comprehensive idea, Regulation 9, to the

extent relevant up to sub-regulation (8), reads as

follows:-

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

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follows:-  (1) There  shall  be  a  uniform  entrance

examination  to  all  medical educational  institutions  at  the Postgraduate  level  namely  ‘National Eligibility-cum-Entrance  Test’  for admission to postgraduate courses in each  academic  year  and  shall  be conducted  under  the  overall supervision of the Ministry of Health &  Family  Welfare,  Government  of India.

(2) The “designated authority” to conduct the  ‘National  Eligibility-cum- Entrance Test’ shall be the National Board  of  Examination  or  any  other body/organization  so  designated  by the  Ministry  of  Health  and  Family Welfare, Government of India.  

(3) In order to be eligible for admission to  Postgraduate  Course  for  an academic year, it shall be necessary for a candidate to obtain minimum of marks  at  50th  percentile  in  the ‘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, and  Other  Backward  Classes,  the minimum  marks  shall  be  at  40th percentile. In respect of candidates with benchmark disabilities specified under  the  Rights  of  Persons  with Disabilities  Act,  2016,  the  minimum marks shall be at 45th percentile for General Category and 40th percentile for  SC/ST/OBC.  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 Postgraduate Courses, the Central Government  in  consultation  with Medical Council of India may at its

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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 academic year only.

(4) 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  candidates  shall  be prepared  on  the  basis  of  the  marks obtained in National Eligibility-cum- Entrance Test and candidates shall be admitted to Postgraduate 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 upto 10% of the marks obtained for each year of service  in  remote  and/or  difficult areas or Rural areas upto maximum of 30% of the marks obtained in National Eligibility-cum  Entrance  Test.  The remote  and/or  difficult  areas  or Rural areas shall be as notified by State  Government/Competent  authority from time to time.”  

(5) 5% seats of annual sanctioned intake capacity  shall  be  filled  up  by persons  with  benchmark  disabilities in accordance with the provisions of the  Rights  of  Persons  with Disabilities Act, 2016, based on the merit  list  of  National  Eligibility- Cum-Entrance  Test  for  admission  to Postgraduate Medical Courses. In order to be eligible for admission to  Postgraduate  Course  for  an academic year, it shall be necessary for a candidate to obtain minimum of marks  at  50thpercentile  in  the ‘National  Eligibility-Cum-Entrance Test  for  Postgraduate  courses’  held for the said academic year. However, in respect of candidates belonging to

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Scheduled  Castes,  Scheduled  Tribes, and  Other  Backward  Classes,  the minimum  marks  shall  be  at  40th percentile. In respect of candidates with benchmark disabilities specified under  the  Rights  of  Persons  with Disabilities  Act,  2016,  the  minimum marks shall be at 45th percentile for General Category and 40th percentile for SC/ST/OBC.  

(6) No candidate who has failed to obtain the  minimum  eligibility  marks  as prescribed  in  Sub-Clause  (3)  above shall be admitted to any Postgraduate courses in the said academic year.  

(7) In  non-Governmental  medical colleges/institutions,  50%  (Fifty Percent) of the total seats shall be filled  by  State  Government  or  the Authority appointed by them, and the remaining 50% (Fifty Percent) 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.”  

(8) 50%  of  the  seats  in  Postgraduate 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 and / or Rural areas. After  acquiring  the  Postgraduate Diploma,  the  Medical  Officers  shall serve  for  two  more  years  in  remote and  /or  difficult  areas  and  /  or Rural  areas  as  defined  by  State Government/Competent  authority  from time to time. …”

5. This was subject matter of a Three-Judge Bench

decision of this Court in State of Uttar Pradesh and

Others v. Dinesh Singh Chauhan, reported in (2016) 9

SCC  749.  There  have  been  some  minor  amendments

thereafter  in  Regulation  9.  The  relevant

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consideration  of  Regulation  9  (4)  in  Dinesh  Singh

Chauhan (supra) is at paragraphs 24 to 27, which read

as follows:-

“24. By now, it is well established that Regulation 9 is a self-contained code regard- ing the procedure to be followed for admis- sions to medical courses. It is also well es- tablished that the State has no authority to enact any law much less by executive instruc- tions that may undermine the procedure for admission  to  postgraduate  medical  courses enunciated  by  the  Central  legislation  and regulations framed thereunder, being a sub- ject falling within Schedule VII List I Entry 66 of the Constitution (see Preeti Srivastava

v. State of M.P.5). The procedure for selec- tion of candidates for the postgraduate de- gree courses is one such area on which the Central legislation and regulations must pre- vail.

25. 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 admis- sion to postgraduate “degree” courses. Regu- lation 9 is a composite provision prescribing procedure  for  selection  of  candidates—both for postgraduate “degree” as well as post- graduate “diploma” courses:

25.1. Clause (I) of Regulation 9 mandates that there shall be a single National Eligi- bility-cum-Entrance  Test  (hereinafter  re- ferred to as “NEET”) to be conducted by the designated authority.

25.2. 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.

25.3. Clause (III) provides for eligibil- ity for admission to any postgraduate course in a particular academic year.

25.4. Clause (IV) is the relevant provi- sion. It provides for reservation of seats in medical  colleges/institutions  for  reserved

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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 constitutional scheme (for the Scheduled Caste, the Scheduled Tribe or the 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 NEET and the admission to post- graduate courses in the State concerned 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, con- tains a proviso. It predicates that in deter- mining the merit of candidates who are in service of the Government or a public author- ity, weightage in the marks may be given by the Government/competent authority as an in- centive @ 10% of the marks obtained for each year of service in specified remote or diffi- cult areas of the State up to the maximum of 30% of the marks obtained in NEET. This pro- vision even if read liberally does not pro- vide  for  reservation  for  in-service  candi- dates, 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).

26. From the plain language of this pro- viso, it is amply clear that it does not en- visage reservation for in-service candidates in respect of postgraduate “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 postgraduate “de- gree”  courses  as  also  for  postgraduate “diploma” courses. Further, the weightage of marks so allotted is required to be reckoned while preparing the merit list of candidates.

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27. Thus understood, the Central enactment and the regulations framed thereunder do not provide for reservation for in-service candi- dates  in  postgraduate  “degree”  courses.  As there  is  no  express  provision  prohibiting reservation to in-service candidates in re- spect of admission to postgraduate “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  candi- dates. This argument does not commend to us. In  the  first  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 the academic year 2013-2014. 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 postgraduate “degree” courses. In contradistinction, how- ever, 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  postgraduate  “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 per- missible for admission to postgraduate “de- gree” courses. Thus, the State Government, in law, had no authority to issue a Government Order such as dated 28-2-2014, to provide to the contrary. Hence, the High Court was fully justified in setting aside the said govern- ment order being contrary to the mandate of Regulation 9 of the 2000 Regulations, as ap- plicable from the academic year 2013-2014.”

6. Learned senior counsel for the petitioners have

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vehemently contended that at least three Constitution

Bench decisions of this Court, namely, R. Chitralekha

and Another v. State of Mysore and Others, reported

in (1964) 6 SCR 368, Kumari Chitra Ghosh and Another

v. Union of India and Others, reported in (1969) 2

SCC 228 and Modern Dental College and Research Centre

and  Others v.  State of  Madhya Pradesh  and Others,

reported  in  (2016)  7  SCC  353,  have  not  been

considered in Dinesh Singh Chauhan (supra), on the

aspect of the legislative competence under List I,

Entry  66  and  List  III,  Entry  25  of  the  Seventh

Schedule.  List I Entry 66, reads as follows:-

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

7. Entry 25 of List III, reads as follows:-

“25.  Education,  including  technical education,  medical  education  and universities,  subject  to  the  provisions  of entries  63,  64,  65  and  66  of  List  I; vocational and technical training of labour.”

8. The main dispute pertains to the claim made by the

State  for  reservation  in  favour  of  the  in-service

candidates in respect of 50% of the seats granted to

the States, since 50% of the seats, in any case are

set apart for All-India category.

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9. It is the main contention of the petitioners that

while  “the  coordination  and  determination  of

standards  in  institutions  for  higher  education”  is

within  the  exclusive  domain  of  the  Union,  medical

education  under  Entry  25,  List  III,  though  made

subject to Entry 66 of List I, being an Entry in the

Concurrent  List,  the  State  is  not  denuded  of  its

power  to  legislate  on  the  manner  and  method  for

admissions to Post Graduate Medical Courses.

10. It  is  submitted  that  though  Regulation  9(4)

provides for 10% incentive for every year of service

in remote/difficult/rural areas up to a maximum of

30% of the score, the provision will not enure to the

benefit of the in-service candidates.  It is pointed

out that the States have been following, for several

reasons  and  for  several  years,  the  pattern  of

reservation in respect of 50% of State Quota for the

in-service candidates. It is submitted that even in

that 50%, the list can be prepared by providing the

incentive  for  the  service  in  difficult,  rural  or

remote  areas.   It  is  also  pointed  out  that  the

Regulations  also  have  considered  the  power  of  the

State to provide for reservation. This can be seen

from Regulation 9(8) which provides for reservation

of 50% of the seats in Post Graduate Diploma Courses

for  medical  officers  in  Government  service  in  the

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State who have served for at least three years in

remote and difficult areas with a further condition

of  minimum continued  service of  two years  in such

areas.  It is also the contention of the petitioners

that if there can be such a reservation in the case

of  Post  Graduate  Diploma  Courses,  there  is  no

justification for denying such a reservation in case

of the Post Graduate Degree Courses.

11. On behalf of the Union of India and the Medical

Council  of  India,  it  is  pointed  out  that  once  an

Entry is provided under List I, it is the exclusive

domain of the Union and even if the Union has not

legislated exhaustively in respect of that Entry, the

State  cannot  legislate  on  that  subject.   Our

reference has been invited to the decision of this

Court in Gujarat University and Another v. Krishna

Ranganath  Mudholkar  and  Others,  reported  in  (1963)

Suppl. 1 SCR 112.  In any case, it is pointed out

that all the contentions raised by the petitioners

have been considered in Dinesh Singh Chauhan (supra)

and,  therefore, the  writ petitions  are only  to be

dismissed.

12. Having heard the learned senior counsel appearing

on both the sides extensively, we are of the view

that Dinesh Singh Chauhan (supra), has not considered

the legislative Entries in respect of the contentions

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we have noted above. Apparently, it appears no such

contentions were raised before the Court.  Same is

the situation with regard to the non-reference with

respect to the three Constitution Bench decisions we

have  referred  to  above.   As  far  as  Modern

Dental (supra) is concerned, perhaps the judgment had

not been published by the time the judgment in Dinesh

Singh Chauhan (supra) was rendered.   

13. The  petitioners  have  raised  several  other

contentions  and  invited  our  reference  to  the

judgments by Benches of equal strength as in Dinesh

Singh Chauhan (supra).

14. In the above circumstances, we are of the view

that these writ petitions require consideration by a

larger Bench.

15. Learned  senior  counsel  appearing  for  the

petitioners have strenuously pressed for an interim

order since the counseling has either commenced or in

some States it is only about to commence.  Having

regard to the entire facts and circumstances of the

case, we feel it is appropriate that even the interim

relief should be considered by the larger Bench.

16. Accordingly, place the matters before the Hon’ble

the  Chief Justice  of India  for consideration  by a

larger Bench, emergently.

17. The petitioners are free to make a mention on

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Monday, the 16th April, 2018 before Hon’ble the Chief

Justice of India.

.......................J.            [KURIAN JOSEPH]  

.......................J.            [MOHAN M. SHANTANAGOUDAR]  

.......................J.            [NAVIN SINHA]  

NEW DELHI; APRIL 13, 2018.

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ITEM NO.55               COURT NO.5               SECTION X

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Writ Petition(s)(Civil)  No(s).  196/2018

TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS.     Petitioner(s)

                               VERSUS

UNION OF INDIA & ORS.                              Respondent(s)

WITH W.P.(C) No. 252/2018 (X) W.P.(C) No. 295/2018 (X) W.P.(C) No. 293/2018 (X)   Date : 13-04-2018 These matters were called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR          HON'BLE MR. JUSTICE NAVIN SINHA

For the parties Mr. Mukul Rohatgi,Sr.Adv. Mr. Arvind Datar,Sr.Adv. Mr. K.V. Viswanathan,Sr.Adv. Mr. Ajay Bhargava,Adv. Ms. Vanita Bhargava,Adv. Ms. Saman Ahasn,Adv. Mr. Aayush Jain,Adv. Mr. Kunal Vajani,Adv. Mr. Ankur Ved Tuli,Adv.

                 For M/s.  Khaitan & Co.

Mr. Vikas Singh,Sr.Adv.                   Mr. Gaurav Sharma, AOR

Mr. Dhawal Mohan,Adv. Mr. Amandeep Kaur,Adv. Mr. Prateek Bhatia,Adv. Mr. Abhishek,Adv. Shresty Banerjee,Adv. Ms. Mansi Sharma,Adv.

Mr. R. Venkatramani,Sr.Adv. Mr. Jose Abraham, AOR Mr. M.P. Srivignesh,Adv. Mr. Yashraj Bundela,Adv. Mr. Sreenath S.,Adv.

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Mr. Ajit Kumar Sinha,Sr.Adv. Mr. Sarad Kumar Singhania,Adv. Dr. Nilesh Sharma,Adv.

                 Mr. Gurmeet Singh Makker, AOR

Mr. v. Giri,Sr.Adv. Mr. K.V. Vijaykumar,Adv. Ms. Maitreyee Mishra,Adv. Mr. K.V. Ram Kumar,Adv.

Mr. G. Prakash,Adv. Mr. Jishnu M.L.,Adv. Mrs. Priyanka Prakash,Adv. Mrs. Beena Prakash,Adv. Mr. Vijay Shankar V.L.,Adv.                     

         UPON hearing the counsel the Court made the following                              O R D E R

Issue notice in the fresh writ petitions.

Standing Counsel for the concerned States, Union of

India and Medical Council of India appear and accept notice

for the respective parties.

In terms of the signed order, place the matters before

Hon’ble the Chief Justice of India for consideration by a

larger Bench.

(NARENDRA PRASAD)                               (RENU DIWAN)   COURT MASTER                               ASSISTANT REGISTRAR

(Signed “Reportable” order is placed on the file)

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