Judges: Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose JJ.

Facts:

After considering the judgment rendered by a three Judge Bench of this Court in the case of State of U.P. v. Dinesh Singh Chauhan MANU/SC/0910/2016, another three Judge Bench, in the case of T.N. Medical Officers Association v. Union of India MANU/SC/0375/2018 has referred the present batch of cases to a larger Bench.

In the case of Dinesh Singh Chauhan (supra), a three Judge Bench construed the provisions of Regulations 9(IV) and 9(VII) of the MCI Postgraduate Medical Education Regulations, 2000, as amended on 15.2.2012 (MCI Regulations 2000). The Bench held that the aforesaid Regulations do not provide for any reservation for in-service government doctors in PG degree courses, and therefore, the State Government order providing the reservation for PG degree courses for in-service government doctors is held to be illegal.

The present batch of cases came up for hearing before another Bench of three Judges. The Bench being of opinion that the present batch of cases require consideration by a larger Bench has presented the cases to a larger Bench on the ground that decision in Dinesh Singh Chauhan MANU/SC/0910/2016 has not considered the entries in the legislative lists of the Seventh Schedule, more particularly Entry 66 of the Union List and Entry 25 of the Concurrent List.

Issues:

(i) What is the scope and ambit of Entry 66 of List I?

(ii) What will be the impact/effect of MCI Regulations, 2000 framed by the Medical Council of India in exercise of its powers Under Section 33 of the Indian Medical Council Act, 1956?

(iii) Whether in view of Entry 66 of List I, the State is denuded of its power to legislate on the manner and method of the postgraduate medical courses, more particularly, making special provisions for in-service candidates in the postgraduate degree/diploma courses?

(iv) Whether Regulation 9 of MCI Regulations, 2000, more particularly, Regulation 9(IV) and 9(VII) takes away the power of the States under Entry 25 of List III to provide for a separate source of entry for in-service candidates seeking admission to postgraduate medical courses?

(v) Whether Regulation 9 of MCI Regulations, 2000 is understood to not allow for the States to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses, the same is arbitrary, discriminatory and violative of Articles 14 and 19(1) (g) of the Constitution of India, and also ultra vires of the provisions of the Indian Medical Council Act, 1956?

(vi) Whether Regulation 9 is a complete code in itself, as observed by this Court in the case of Dinesh Singh Chauhan (supra) affecting the rights/authority of the States to provide for reservation and/or separate source of entry for in-service candidates seeking admission to postgraduate degree courses?

Law:

MCI Regulations, 2000 - Regulation 9 - Procedure for selection of candidate for postgraduate courses

MCI Act - Section 33 - Power to make Regulations

Constitution of India - Entry 66 Of List I - Co ordination and determination of standardsin institutions of higher education or research and scientific and technical institutions.

Constitution of India - (Concurrent List) Entry 25 Of List III - 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 in labour.

Contentions:

Petitioners:

(i) While coordination and determination of standards in institutions for higher education falls within the exclusive domain of the Union (Entry 66 List I), medical education is a subject in the Concurrent List (Entry 25 List III). Though, Entry 25 of List III is subject to Entry 66 of List I, the State is not denuded of its power to legislate on the manner and method of making admissions to postgraduate medical courses;

(ii) The judgment in Dinesh Singh Chauhan MANU/SC/0910/2016 does not consider three decisions of the Constitution Bench in R. Chitralekha v. State of Mysore MANU/SC/0030/1964, Chitra Ghosh v. Union of India MANU/SC/0042/1969 and Modern Dental College & Research Centre v. State of M.P. MANU/SC/0495/2016.

(iii) The decision in Dinesh Singh Chauhan MANU/SC/0910/2016 has not considered the entries in the legislative lists of the Seventh Schedule, more particularly Entry 66 of the Union List and Entry 25 of the Concurrent List

(iv) There is no question of any conflict of Entry 25 of List III and Entry 66 of List I. The subject of admission to courses is referable to Entry 25 of list III and not Entry 66 of List I. It is submitted that conflict, if any, can only be between a State Law and a Central Law both sourced to Entry 25 of List III. That no such conflict is present in the instant case;

(v) There is no plenary law by the Centre provided for any reservation for in-service candidates. In other words, there is no Central Law governing the said aspect, therefore, it would be competent for the State Government to provide for a reservation for in-service candidates. In the absence of a Central Law, it is obviously open to the State Government to provide for a legal instrument, whether by way of a statute or by an executing order providing a reservation for in-service candidates;

(vi) The MCI Regulations, 2000, which are made under the Medical Council Act provide for a reservation in Post-graduate Diploma Courses for in-service candidates serving with the respective State Governments. There is no bar to such reservation in Post-graduate Degree Courses. The bar, if any, has to be express and cannot be implied. Clause 9(IV) of the MCI Regulations, 2000 can be construed as provided for community reservations and also a reservation for in-service candidates. Even otherwise, it does not enable explicitly the State Government to provide for a weightage in marks, amongst in-service candidates. Thus, the legislative instrument which could be sourced to the MCI, which in turn is a body established by the Central Government under the Medical Council Act itself recognizes an empowerment of the State Government, inter alia, to lay down the modalities to regulate or provide for a reservation for in-service candidates in Post-graduate seats. If that be so, then the actual prescription of a reservation for in-service candidates, in relation to Post-graduate Degree seats obviously has not come into conflict with the MCI Regulations, 2000 so as to attract Article 254 of the Constitution;

(vii) The MCI Regulations, 2000, not expressly providing for a reservation in Post-graduate Degree seats, specifically empowering the State Government to do so, but only touches upon the reservation in Diploma seats, it does not follow that the State Government is incompetent to provide for reservation for in-service candidates in Degree seats as well. The competence of the State Government to provide for reservation for in-service candidates is not sourced to the MCI Regulations, 2000, but it is sourced to Entry 25 of List III. Thus, the absence of any mention of reservation for candidates in Post-graduate Degree seats in the Regulations, 2000 cannot support a submission by the MCI that consequently the State Government would be incompetent to provide for any reservation for in-service candidates in Degree seats;

(viii) The MCI Regulations, 2000 would become relevant only when it provides for reservation in Post-graduate Degree seats and the State Government brings about a policy of reservation in Post-graduate Decree seats at variance from the protocol laid down in the MCI Regulations. The MCI Regulations, 2000 are silent in regard to the reservation in Post-graduate Degree seats and therefore, possible repugnancy Under Article 254 of the Constitution of India really cannot arise between an instrument by the State Government and an instrument by the Central Government which does not cover the subject or touch upon the subject provided for by the State Government.

Respondents

Union of India

(i) That the decision of this Court in the case of Dinesh Singh Chauhan (supra) is a correct law. That the said decision is consistent with the Article 246 r/w Entry No. 66 of List I and Entry 25 of List III of 7th Schedule of the Constitution

(ii) Prior to the deletion of entry 11 of List II and insertion of Entry 25 of List III, the Union Parliament could not deal with the issue of imparting and regulating of the education which vested exclusively in the State Legislature. The power of State Legislature relating to 'education' was taken away only to the extent Entry 11 of List II was made subject to relevant entries in the List I including Entry 66 and Entry 25 of List III at the relevant time dealt only with 'vocational and technical training of labour;

(iii) The instant case deals with the situation where Entry 11 is shifted from List II to List III as Entry 25, which Entry enlarges the field (now concurrently vested with the State Legislature and Union Parliament) beyond 'Universities' to 'technical education' and 'medical education' also while retaining 'vocational and technical training of labour' in the original Entry; the consequence of this change is that the State Legislature does not have exclusive power over imparting and regulating of education. And where the Centre has legislated on this subject, the State Legislature would be denuded of its power subject of-course to Article 254 of the Constitution (which has not been invoked). In the absence of such legislative power even executive power would not be available to the State Government;

(iv) Regulation 9(IV) deals with "All India merit list as well as State-wise merit list" on the basis of marks obtained in NEET for admission to "post-graduate courses (both degree and diploma). The proviso to Regulation 9(IV) stipulates that "in determining the merit of the candidates" weightage in marks would be given as provided. This is not a substantive provision as argued and is clearly a proviso to Regulation 9 (IV);

(v) Unlike Regulation 9(IV) which deals with both post-graduate degree and diploma courses, Regulation 9(VIII) deals only with "Post-graduate Diploma Courses" and provides for reservation in the manner stipulated therein. Regulation 9(VIII) is therefore, a special provision which will apply only to the subject within its scope clearly indicating that the reservation is limited to diploma courses only. Regulation 9 dealing both with 'determination and coordination of standards' and 'regulation' of education has correctly been described as a complete code. Not only can there be no interference with the standard prescribed but there also being Regulation of the manner in which standards are to apply by the MCI under a Central enactment, the State Government cannot interfere with or modify the same;

(vi) In view of the specific provision for in-service candidates in the MCI Regulations, 2000 framed by the Medical Council of India, more particularly, Regulation 9(IV) r/w 9(VII)/(VIII) and as Regulation 9 is held to be a complete code and even considering Entry 25 of List III, the State would not have any power to legislate anything contrary to MCI Regulations, 2000, more particularly Regulation 9 and cannot have any power to make provision for reservation for in-service candidates in postgraduate degree course. Any law framed and/or to be framed, therefore, would be repugnant to MCI Regulations, 2000 framed by the Medical Council of India, framed in exercise of powers Under Section 20 r/w Section 33 of the MCI Act, 1956.

Private Candidates

(i) There is no legislation in the State of West Bengal providing for reservation for in-service candidates. The office memorandum dated 18.4.2013, is only an executive instruction, which has been relied upon by the State Government did not find any mention in the original records of the Government when perused by the Division Bench of the High Court while examining the reasons recorded by the State Government for grant of such reservation;

(ii) That in-service candidates are not meritorious and by such reservation the meritorious general category candidates and non-service candidates who have secured more marks in NEET and competitive examination will have to suffer; (a) Medical Council of India has been constituted as an expert body to control the minimum standards of medical education and to regular their observance; (b) Compliance with regulations framed by MCI are mandatory inasmuch as enforcement of these regulations are directly relatable to quality of medical professionals; (c) Regulations framed by the MCI are with prior approval of the Central Government in terms of Section 33 of the Indian Medical Council Act, 1956 and are binding in nature; (d) Aforesaid binding nature is apparent from a perusal of constitutional scheme for enactment of the Indian Medical Council Act, 1956. Entry 66 of List I of the seventh Schedule provides for 'coordination and determination of standards in institutions for higher education or research and scientific and technical institution'. Entry 25 of List III in the seventh Schedule of the Constitution provides for 'Education including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I'; It emerges from a conjoint reading of Entry 66 of List I and Entry 25 of List III that because the Parliament occupies the field earmarked for it under Entry 66 of List I or its concurrent powers as per Entry 25 in the concurrent list, the question of admission of students to any medical course would mandatorily have to be in compliance of the said law framed with reference to Entry 66 of List I which is the MCI Act, 1956;

(iii) That selection to Post-graduate Courses stands completely covered by Regulation 9 of the MCI Regulations, 2000.

(iv) That Regulation 9 is a 'complete code' governing selection to PG Courses and when Regulations prescribe for selection in a certain manner, it must be done in that manner alone and not otherwise.

(v) The State is not competent to separately reserve a specific number of seats for candidates who have served in notified areas. Such candidates who had rendered services in notified rural and difficult areas are entitled to weightage in terms of proviso to Regulation 9(IV);

(vi) Providing any reservation despite the same not being provided for in the Regulations would be akin to redrafting the Regulations itself. 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, and providing any reservation contrary to the Regulation would undo the Regulation itself.

Analysis:

Scope and ambit of Entry 66 of List I - Whether in view of Entry 66 of List I, the State is denuded of its power to legislate on the manner and method of the postgraduate medical courses, more particularly, making special provisions for in-service candidates in the postgraduate degree/diploma courses?

(i) Entry 66 of List I is a specific entry having a very specific and limited scope. It deals with "Coordination and Determination of Standards" in institutions of higher education or research as well as scientific and technical institutions. The words "Coordination and Determination of Standards" would mean laying down the said standards and therefore when it comes to prescribe the standards for such institutions of higher learning, exclusive domain is given to the Union. That would not include conducting of examination etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc. Thus, in exercise of powers under Entry 66 List I, the Union cannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III. In exercise of powers under Entry 25 List III, the States have power to make provision for mode of admissions, looking to the requirements and/or need in the concerned State.

(ii) As per catena of decisions of this Court, "institutional preference" in the postgraduate medical courses up to 50% seats is permissible by the concerned States.

(iii) Medical Council of India which has been constituted under the provisions of the Indian Medical Council Act, 1956 is the creature of the statute in exercise of powers under Entry 66 List I and has no power to make any provision for reservation, more particularly, for in-service candidates by the concerned States, in exercise of powers under Entry 25 List III

What will be the impact/effect of MCI Regulations, 2000 framed by the Medical Council of India in exercise of its powers Under Section 33 of the Indian Medical Council Act, 1956?

(i) On a fair reading of entire Section 33 of the MCI Act, it does not confer any authority and/or power to the MCI to frame the regulations with respect to reservation in the medical courses, more particularly, to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses, as sought to be contended on behalf of the MCI and counsel opposing for providing for a separate source of entry for in-service candidates.

Whether Regulation 9 of MCI Regulations, 2000, more particularly, Regulation 9(IV) and 9(VII) takes away the power of the States under Entry 25 of List III to provide for a separate source of entry for in-service candidates seeking admission to postgraduate medical courses?

(i) Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III.

(ii) If it is held that Regulation 9, more particularly, Regulation 9(IV) deals with reservation for in-service candidates, in that case, it will be ultra vires of the Indian Medical Council Act, 1956 and it will be beyond the legislative competence under Entry 66 List I.

Whether Regulation 9 is a complete code in itself, as observed by this Court in the case of Dinesh Singh Chauhan (supra) affecting the rights/authority of the States to provide for reservation and/or separate source of entry for in-service candidates seeking admission to postgraduate degree courses?

(i) This Court in the cases of Sudhir N (supra) and Dinesh Singh Chauhan (supra) observed that the MCI Regulations, 2000 is a complete code.

(ii) In the case of Sudhir N (supra), the State law which was under consideration by the Court provided that the seniority list of selected candidates to be prepared directly based on seniority of in-service doctors, irrespective of marks obtained by such in-service candidates in common PG entrance examination. In that context, this Court held that Regulation 9 of MCI Regulations, 2000 is the only effective and permissible basis for granting admission to postgraduate medical courses and therefore it was observed that Regulation 9 of MCI Regulations, 2000 is a complete code. Therefore, the observations in the case of Sudhir N (supra) that Regulation 9 is a complete code in itself may not be construed with respect to providing reservation and/or making special provision like providing separate source of entry for in-service candidates within the State quota and subject to fulfilling of other criteria fixed and provided by the MCI. Therefore, the observations made by this Court in the case of Dinesh Singh Chauhan (supra) and as held by this Court in the case of Sudhir N (supra) that Regulation 9 is a complete code in itself cannot be accepted and is held to be not a good law.

(iii) Subsequent amendment in the year 2018, as made by notification dated 12.07.2018, provided that a medical college/medical institution shall be entitled to seek equal number of Post Graduate Degree (MD/MS) seats by surrendering recognised diploma seats in corresponding course. In view of the above, it has so happened that by and large in every State the diploma seats are converted in PG Degree (MD/MS) seats by surrendering recognised diploma seats. The resultant effect is that in-service candidates/doctors shall not be entitled to any seat even in PG Diploma courses which has been provided under Regulation 9(VII) of MCI Regulations 2000, as amended from time to time. Therefore, ultimately, it will affect the public health and the common people in the rural, tribal and hilly areas where there is a dearth of good and highly qualified doctors. Therefore, if the rights of the States to provide such reservation for in-service doctors in postgraduate degree/diploma courses is not recognised, in that case, the ultimate sufferer would be the public health and the common people, particularly the people residing in rural, tribal and hilly areas.

Conclusion:

The sum and substance of the above discussion and conjoint reading of the decisions referred to and discussed hereinabove, our conclusions are as under:

1) that Entry 66 List I is a specific entry having a very limited scope;

2) it deals with "coordination and determination of standards" in higher education;

3) the words "coordination and determination of standards would mean laying down the said standards;

4) the Medical Council of India which has been constituted under the provisions of the Indian Medical Council Act, 1956 is the creature of the statute in exercise of powers under Entry 66 List I and has no power to make any provision for reservation, more particularly, for in-service candidates by the concerned States, in exercise of powers under Entry 25 List III;

5) that Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III;

6) if it is held that Regulation 9, more particularly, Regulation 9(IV) deals with reservation for in-service candidates, in that case, it will be ultra vires of the Indian Medical Council Act, 1956 and it will be beyond the legislative competence under Entry 66 List I.;

7) Regulation 9 of MCI Regulations, 2000 to the extent tinkering with reservation provided by the State for in-service candidates is ultra vires on the ground that it is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India;

8) that the State has the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III. However, it is observed that policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for such sum the respective States may consider fit and proper; and

9) it is specifically observed and clarified that the present decision shall operate prospectively and any admissions given earlier taking a contrary view shall not be affected by this judgment.

Important precedents:

(i) State of U.P. v. Dinesh Singh Chauhan MANU/SC/0910/2016

(ii) T.N. Medical Officers Association v. Union of India MANU/SC/0375/2018