Bombay High Court
Dr. Keval S/O Rameshrao Dhone And Others vs Kasturba Health Societys, Mahatma ... on 25 April, 2017
Author: S. B. Shukre
Bench: B. P. Dharmadhikari, S. B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 1356 of 2017
Petitioners : 1. Dr Keval son of Rameshrao Dhone, aged
about 26 years, Occ: Student, resident of Deoli,
District Wardha
2. Dr Dinesh son of Mahadeo Chandewar, aged
about 26 years, Occ: Student, resident of
Trimurti, Suryaketu Nagar, Khat Road, Bhandara
3. Dr Dinesh son of Vishweshwarrao Hinge,
aged about 26 years, Occ: Student, resident of
Ward No. 2, Bhugaon, Post Seloo (Kate), Dist.
Wardha
4. Dr Bhushan son of Sureshrao Telrandhe,aged
about 26 years, Occ: Student, resident of near
Dhuniwale Math, Wardha
5. Dr Rajneesh son of Jaindndra Kumar Rawat,
aged about 32 years, Occ: Student, resident of
::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 :::
2
Parsauni, Chaurichaura, Dist. Gorakhpur, UP
versus
Respondents : 1. Kasturba Health Society's Mahatma
Gandhi Institute of Medical Sciences,
Sevagram, Wardha
------------
Interveners : 1. Dr Dhavalkumar son of Shivram Bansode, aged about 30 years, Occ: service, resident of Korewadi, Tahsil Tuljapur, District Osmanabad presently residing at Bungalow No. 15, Saraswat Colony, Somwarpeth, Pune
2. Ms Shraddha d/o Avinash Kurekar, aged about 25 years, Occ: Student, resident of Flat No. 201, Manik Park, Somwalwada, Nagpur
3. Ms Ankita d/o Ashok Lodam, aged about 26 years, Occ: Student, resident of 64, Teachers Colony, Panjara Koradi, Dist. Nagpur Shri F. T. Mirza, Advocate and Shri Shakul Ghatole, Advocate with him for petitioners Shri Adwait Manohar, Advocate for respondent Shri A. S. Kilor, Advocate for interveners ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 3 Coram : B. P. Dharmadhikari And S. B. Shukre, JJ Date of Reserving the Judgment : 4th April 2017 Date of Pronouncing the Judgment: 25th April 2017 Judgment (Per S. B. Shukre, J)
1. Heard. Rule, made returnable forthwith. Heard finally by consent of parties.
2. This petition involves a question as to whether or not the respondent Mahatma Gandhi Institute of Medical Sciences (hereinafter referred to as the "IMS" for brevity) can prescribe criteria for admitting students to its post-graduate medical courses which have not been prescribed by the Medical Council of India (for short, "the MCI) especially when the Post-graduate Medical Education Regulations, 2000 (for short, "the Regulations of 2000") made by the MCI in exercise of its powers under Section 23 read with Section 20 of the Indian Medical Council Act, 1956 with the previous sanction of the Central Government regulate in a centralized manner admissions to post-graduate medical courses offered by the Government as well as non-Governmental medical institutions across India.
3. This Court on 7.3.2017, when the Writ Petition was presented, issued notice and mqade it returnable on 14.3.2017. On 16.3.2017, respondent was restrained from finalizing the select list for ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 4 admission. Thereafter, a Special Bench was required to be constituted for taking up the matter. The Special Bench conducted hearing in second half on 3rd and 4th April 2017. On 4th April 2017 while closing the matter for judgment, respondent Sewagram College was permitted to prepare select list separately by adhering to the MCI Regulations and as per Sewagram Rules to save loss of time. However, lists are directed to be kept in sealed envelope until further orders.
4. The petitioners who possess MBBS Degree conferred upon them by the respondent IMS and who have also completed their internship, are eligible for being admitted to the post-graduate courses offered by respondent IMS having secured marks at National Eligibility-cum- Entrance Test (Post Graduate) Rules (for short, the "NEET") more than minimum marks at requisite percentile which is 50 for general candidates and 40 for reserved candidates. The petitioners, in response to an on-line advertisement inviting applications from the eligible candidates for admission to various post-graduate courses of respondent-IMS, submitted on-line their applications to the respondent-IMS. Advertisement which was issued on 16th February, 2017 clarified that Information Booklet for post-graduate admission at the respondent IMS containing rules and regulations, would be made available on the website latest by 6 th March 2017. It appears that the petitioners submitted their application forms ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 5 on-line without having detailed knowledge about the criteria prescribed by respondent IMS for admitting students to its post-graduate courses.
5. The Information Booklet, as assured in the advertisement dated 16.2.2017, was indeed published by the respondent IMS. The Information Booklet contained the rules and regulations for admissions. Some of the clauses of the rules, however, according to the petitioners agitated against the Regulations of 2000 made by the MCI, in particular its clause 9 (IV) as amended by the notification dated 21.12.2010, which prescribes that merit alone as determined under it shall be the only criterion for admitting students to post-graduate medical courses.
6. At this juncture, it will be useful to take a brief overview of relevant provisions of the Regulations of 2000.
Clause 9 of the Regulations of 2000 mandates that there shall be national eligibility-cum-entrance examination (for short, "the NEET") for admission to post-graduate courses in each academic year and vests over- all superintendence, direction and control over the NEET with the MCI or the authority selected in that regard by the MCI with prior approval of the Central Government. It also prescribes eligibility criteria and lays down that an All India Merit List as well as State-wise Merit List of the candidates will be prepared on the basis of marks obtained in NEET and ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 6 the candidates will be admitted to post-graduate courses from such merit list only. It provides for reservation of seats in accordance with the applicable laws prevailing in the State/Union territories. This clause has seen its amendment introduced by notification of the MCI dated 15.2.2012 whereby concept of percentile of marks has been put in place and weightage in the marks is also given. Earlier, in order to be eligible for applying to the post-graduate medical course, it was necessary for the candidates to obtain minimum of 50% or 40% marks depending upon their category, general or backward. Now, in terms of notification dated 15.2.2012 this criterion has been changed to marks obtained at 50 th or 40th percentile, as the case may be. Earlier, there was no weightage given for service of Public/Government Authority in remote and/or difficult areas. But, by notification dated 15.2.2012, weightage in marks @ 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of marks obtained in NEET is allowed to be given as an incentive.
By a notification issued by the MCI on 10 th March 2017, clause 9A has been added to the Regulations of 2000 laying down that there shall be common counselling for admission to all post-graduate courses in all medical educational institutions on the basis of merit list of the NEET and such common counselling shall be conducted by the State Government. Clause 9A is applicable to the medical educational institutions established ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 7 by the Central Government, State Government University, Deemed University, Trust, Society or a company/Minority Institutions/Corporations etc. In a recent development, the Indian Medical Council Act, 1956 has also been amended with effect from 5 th August 2016 and Section 10D has been inserted into the Act. Section 10D provides for substantive base to applicability of NEET to admissions to post graduate courses at medical educational institutions - governmental, non-Governmental, private and so on across India.
7. The Admission Rules of the respondent IMS, however, contain some clauses, clauses 4.5 and 10, the impugned clauses, which the petitioners contend, are discriminatory and inconsistent with the Regulations of 2000, in particular its clause 9 (IV) and adversely affect the merit criterion prescribed under the Regulations of 2000. The petitioners also submit that the respondent IMS being affiliated to the MCI, is bound by the Regulations of MCI and unless it has authority to prescribe any rules or criteria of its own for regulating admissions to its post-graduate medical courses, it cannot do so or lay down any conditions which would adversely affect the criteria prescribed for admissions under Regulations of 2000 and the respondent IMS does not possess any such authority in law. Thus, by this petition, the petitioners seek quashing of these impugned clauses of the Admission Rules of ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 8 respondent IMS viz. Post-graduate Medical Courses (Selection) Rules, 1985 as published in the Information Booklet issued for giving information about rules for provisional admissions to the post-graduate courses-2017/18.
8. Shri Mirza, learned counsel for the petitioners submits, by relying on the case of State of Uttar Pradesh & ors v. Dinesh Singh Chuhan reported in (2016) 9 SCC 749, that clause 9 of the Regulations of 2000 is a self-contained Code governing the procedure to be followed for admissions to the medical courses and the Regulations of 2000 having been framed under a Central legislation, would prevail over any State rules or regulations. He contends that as a matter of fact, in the present case, the procedure relating to making admissions to post-graduate medical courses at all medical institutions in the State prescribed by the State of Maharashtra does not envisage any criterion of rural service nor does it contain any provision for giving of any incentive marks for service in rural areas muchless rural service at NGOs recognized by respondent IMS with postings also made by it. He further submits that the respondent IMS is not the "State" as defined under Article 12 of the Constitution of India and, therefore, would have no authority to take recourse to the executive power of the State under Article 162 read with Article 166 of the Constitution of India to prescribe its own admission ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 9 criteria inconsistent with those laid down under Regulations of 2000 in the name of raising of standard of medical education or under the cover of its autonomy in regulating admission process for imparting medical education under Entry 25 of the VII Schedule by issuing an executive direction. According to him, the rural service criterion and also criterion of incentive marks @ 10% of the NEET score for each completed service in rural area at NGO recognized by the respondent IMS subject to maximum of 30% of the NEET score adversely affect the merit criterion prescribed under clause 9 (IV) of the Regulations of 2000 and this cannot be done by respondent IMS.
9. Shri Adwait Manohar, learned counsel for the respondent contends that the impugned clauses are nothing but examples of setting up of higher standards for regulating admissions to post-graduate medical courses offered by respondent IMS. By these clauses, he submits, respondent IMS has only prescribed additional criteria, which criteria when examined in their proper perspective, would only come out as the criteria prescribing higher standard of merit. According to him, the criteria of compulsory rural service and giving of incentive marks for each year of service in rural area at NGOs recognized with postings made by the Dean of respondent IMS only raise the minimum merit criterion prescribed under clause 9 (IV) of Regulations of 2000. He submits that ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 10 the respondent IMS no where compromises on quality as determined by the merit criteria prescribed not only under the Regulations of 2000 but also Admission Rules of respondent IMS and that it is not the case that the respondent IMS is giving admissions to any candidate who has secured lesser marks than the minimum of marks prescribed under Regulations of 2000.
10. Shri Manohar, learned counsel for the respondent further submits that by the impugned clauses, the respondent IMS has only regulated the admission process, which is permissible under the law. Relying upon the supplementary judgment in the case of Modern Dental College And Research Centre & ors v. State of Madhya Pradesh & ors reported in (2016) 7 SCC 353, he submits that power of the Union under Entry 66 of the Union List is limited to prescribing standard of higher education to bring about the uniformity in the level of medical education imparted throughout the country. But, he submits, the scope of Entry 66 does not extend to laying down the admission process and that the State is not divested of its power to legislate under Entry 25, List III for the purpose of regulating the admission process in the institutions imparting higher medical education. According to him, the impugned clauses only regulate the admission process and cannot be construed as adversely affecting the prescription under the Central law laying down standard of ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 11 higher medical education.
11. Shri Manohar, learned counsel further submits that prescription of compulsory rural service and also providing for incentive marks for rural service at recognized NGOs is in public interest as it serves the rural populace, much deprived of its rightful claim to have access to quality medical attention and care. He points out that these clauses are also consistent with the national health policy which proposes financial and non-financial incentives, creating medical colleges in rural areas; giving of preference to students from under-serviced areas, making mandatory the rural postings, amongst other measures. He further submits that the efforts taken by respondent IMS in promoting rendering of medical services in rural areas, have been acknowledged by the Ministry of Health and Family Welfare, Government of India when they were incorporated in its annual report of 2013-14. He points out from the said annual report that the report of the Task Force on Medical Education of the National Rural Health Mission spells out the need to draw inspiration from respondent IMS's initiatives and experience in curriculum innovation and rural placement of its graduates. Learned counsel thus submits that the impugned clauses should be viewed as raising minimum bench mark for admissions to post-graduate medical courses by providing for such additional conditions as promote national health objectives and ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 12 not as obstruction to merit criterion prescribed under the Regulations of 2000.
12. Shri Manohar further submits that while giving admissions to post-graduate medical courses, the respondent IMS does not charge any capitation fees and does not indulge in profiteering and it makes admissions only on the basis of criterion of merit which is determined not only by taking into consideration the criterion prescribed under Regulations of 2000, but also additional criterion prescribed by it under the impugned clauses. He further submits that this is permissible for the respondent IMS as the Full Bench of this Court in the case of Nachane Ashwini Shivram & ors v. State of Maharashtra & anr reported in 1998 (2) Mh. L. J. 234 has held that the respondent IMS is entitled to control admissions in accordance with the rules framed by it as it is a class of its own.
13. Shri A. S. Kilor, learned counsel for the interveners submits that clause 4.5 as well as clause 10 of the Admission Rules prescribe only additional criteria, thereby enhancing the criterion of merit prescribed in proviso to clause 9 (IV) of Regulations of 2000 and, therefore, it cannot be said that they go completely against the merit criterion prescribed under Regulations 2000. According to him, the impact of the additional criteria prescribed by any medical institution on the criteria prescribed ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 13 under the Central legislation has to be considered and if the impact is seen to be heavy or devastating so as to wipe out or appreciably abridge the Central field, the rule prescribing such additional criteria by the State or an authority under the State must give way to the Central regulations. But, he submits that such is not the case here. He places his reliance upon the cases of R. Chitralekha v. State of Mysore & ors reported in AIR 1964 SC 1823 and D. N. Chanchala v. State of Mysore reported in AIR 1971 SC 293.
14. Shri Kilor, learned counsel for the interveners further submits that merit is something which is composite and it consists of several angles and dimensions which when taken together make up for one quality of excellence or what is considered to be the merit. According to him, if marks obtained at NEET at 50 th percentile or 40th percentile, for general or backward candidates, as the case may be, is the minimum criterion of merit for getting admission to a post-graduate medical course, the aptitude for and inclination to render medical care in rural areas where it is common knowledge, good medical facilities are almost non- existent, would certainly be the dimensions of merit and when these dimensions of merit are added as the compulsory qualifications for getting admission to post-graduate medical courses offered by an institution like the respondent IMS, the effort must be seen as only amounting to ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 14 prescription of higher standard as held in the case of Preeti Srivastava v. State of M. P. reported in (1999) 7 SCC 120. Shri Kilor further submits that by the impugned clauses, respondent IMS has not in any manner lowered down the merit criterion or standard of post-graduate medical courses nor does respondent IMS prefer anyone with marks lesser than the minimum percentile of marks obtained at the NEET. Thus, he submits, what the respondent IMS has done is only consideration of additional factors over and above the minimum prescribed percentile of marks for giving admissions to post-graduate medical courses offered by it, which is permissible under the law.
15. The arguments advanced on behalf of both the sides are centred upon the authority of the respondent IMS to prescribe its own criteria apart from the criteria laid down by Regulations of 2000 and the legitimacy and the validity of such prescription by the respondent IMS. Therefore, it would be necessary to reproduce the relevant clauses of Regulations of 2000 as amended uptodate and Admission Rules as contained in Information Booklet of respondent IMS. These are clause 9 of the Regulations of 2000 and clauses 4.5, 5 and 10 of the Admission Rules of the respondent IMS.
::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 15
Regulations of 2000 "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 overall superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with Medical Council of India. However, Medical Council of India with the previous approval of the Central Government shall select organization/s to conduct 'National Eligibility-cum-Entrance Test for admission to Postgraduate courses.
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 any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 7-% 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:
Provided 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 50% (Fifty Percent) marks in 'National Eligibility-cum-Entrance Test for ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 16 Postgraduate courses' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum percentage marks shall be 40% (Forty Percent) and in respect of candidates as provided in clause 9 (II) above with locomotory disability of lower limbs, th'e minimum percentage marks shall be 45% (Forty Five Percent) in the National Eligibility-cum-Entrance Test:
Provided when sufficient number of candidates in the respect categories fail to secure minimum marks as prescriged in 'National Eligibility-cum-Entrance Test for Postgraduate courses' 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 candidates 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 ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 17 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."
Admission Rules of respondent IMS "4. Eligibility criteria and Requirements for Applying - 4.1 .....
4.2.....
4.3.....
4.4......
4.5
i) Must have two years of rural service with pay on or before 31st December 2016. However, those who have done minimum of one year rural service on or before 31 st December 2016 are also eligible to apply for 2017 PG Courses but they must do the remaining period of rural service after completing the P. G. Course to make the total rural service of two years.
ii) The rural service period would not include any period of leave without pay (See Annexure IA & B).
iii) During the rural service the candidate must have resided at the place of work.
iv) First priority shall be given to the candidates who have completed rural service for which appointment order has been issued by the Dean, MGIMS, Sevagram.
a) At a Non Government Voluntary Organization (NGO) working for rural health care and recognized by MGIMS. ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 18
b) or at a PHC in Maharashtra for which the first order has been issued by the Dean, MGIMS and subsequent order by the Government authority.
Note - The above candidates must produce certificate of completion of rural service given by the Chief authority of the respective NGO or District Health Officer (DHO) countersigned by Dean, MGIMS as the case may be."
5. Non Eligibility:
The candidate will be declared non-eligible 5.1 If he/she does not fulfill any of the criteria as mentioned in 4 above.
10. Determination of Merit :
10.1 On the basis of online application forms, and selection process, a provisional merit list will be prepared. The total marks obtained in the NEET PG 2017 score/marks will be tabulated for merit calculation after making the following additions or deductions as the case may be :
In determining the merit, the weightage in the marks shall be given as an incentive (additional marks) at rate of the 10% marks for completed one year compulsory rotatory internship from Mahatma Gandhi Institute of Medical Sciences, Sevagram and 10% marks obtained for each year of service in rural area at NGO recognized and posted by Dean MGIMS Sevagram up to maximum of 30% of the marks obtained in NEET PG 2017. For ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 19 each extra attempt, a deduction of 5% of the maximum marks of the subject in which candidate has failed will be made from the above aggregate.
16. It would be clear from above that clause 9 (IV) of Regulations of 2000 speaks of the reservation of seats in medical colleges/institutions for respective categories in accordance with the applicable laws prevailing in the State and the Union Territory on the one hand and preparation of all India merit list as well as State-wise merit list of the eligible candidates on the basis of the marks obtained in NEET, on the other. It also declares that candidates shall be admitted to post-graduate medical courses from such merit list only. The proviso to clause 9 (IV) further clarifies the manner in which merit of in-service candidates is to be determined. It makes a special provision for giving incentive marks by laying down that those candidates who had rendered service in remote and/or difficult areas, as defined by the State Government or the Competent Authority from time to time, shall be given incentive marks @ 10% of the marks obtained at NEET for each year of such service subject to maximum of 30% of the NEET score.
17. The afore-stated provision of the incentive marks was questioned for its validity in Balaji Gyanoba Phalke (Dr) & ors v. Union of India (supra) and the Division Bench of this Court found that the ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 20 objection was without any basis. It held that grant of incentive marks was for the purpose of encouraging more doctors to render medical aid in the difficult and remote areas of the country and that by these marks, there was no lowering of the requirement of merit in the preparation of merit list or granting admissions as contemplated in the judgment of the Supreme Court in the case of Dr Preeti Srivastava v. State of MP (supra). The Division Bench found that the State of Maharashtra has already defined the "remote and difficult areas" by issuing a Government Resolution dated 3.5.2011 in that regard.
18. In the present case, there is no dispute about issuance of the Government Resolution dated 3.5.2011 by the State of Maharashtra.
Equally, it is not the case of anybody that by giving incentive marks for rendering service in remote and/or difficult areas, some candidates are given unjust advantage over the candidates who have secured more percentile of marks at NEET. The grievance of the petitioners, as stated earlier, is about lack of authority to prescribe any such criterion of determination of merit as would adversely affect the merit criterion for admissions contained in the Regulations of 2000. The reference to the said case of Balaji Gyanoba Phalke has been made by us only to point out that the validity of criterion of service in "remote and/or difficult"
areas is already tested and that the expression "remote and/or difficult ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 21 areas" has also been defined by the State of Maharashtra in its resolution dated 3.5.2011.
19. A perusal of the impugned clauses 4.5 and 10.1 read with clause 5.1 of the Admission Rules of respondent IMS would show that the respondent IMS has made rendering of rural service as an essential condition for admitting students to its post-graduate medical courses and has also provided for incentive marks at the rate prescribed in clause 10.1 for rendering rural service at NGOs recognized by the respondent IMS with postings done there, also by respondent IMS. These criteria, it can be seen without any efforts, do not form part of Regulations of 2000, in particular its clause 9 governing selection of candidates for post-graduate medical courses in all medical colleges and institutions across the nation . The question would be, if this can be done by respondent IMS or not.
20. Before attempting an answer to the question, it would be useful to know as to how the Supreme Court has dealt with the issue of repugnancy or inconsistency of the State law to or with the Central law as it would provide us an insight into the question involved in this case and would enable us to know the spheres of the powers of the Central Government and the State Government viz-a-viz Entry 66 List I and Entry 25, List III respectively.
::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 22
21. In Modern Dental College And Research Centre & ors v. State of MP & ors (supra), a Bench of 5 Judges of the Supreme Court considered the law enunciated by the Supreme Court since the time of the case of Gujarat University v. Krishna Ranganth Mudholkar reported in AIR 1963 SC 703 and Bharti Vidyapeeth v. State of Maharashtra reported in (2004) 11 SCC 755 on the subject. The Supreme Court found that there is a consistent line of precedents holding that the power of the State to legislate in respect of education to the extent it is entrusted to the Parliament is deemed to be restricted by the Parliament's power to provide for coordination and determination of standards in institutions for higher education under Entry 66 and this is a subject which is exclusively within the sphere of power of the Union. It was further held that the power of the State under Entry 25, List III to legislate in respect of education, is subject to the provisions of Entries 63, 64, 65 and 66 of List I. The Supreme Court also observed that these two powers of the Union and the State are to an extent overlapping and that whenever such overlapping takes place, the validity of the State legislation would depend on whether or not it prejudicially affects "coordination or determination of standard" even in the absence of Union legislation. Referring to the case of R. Chitralekha (supra), Supreme Court held that if the impact of the State law is such that it wipes out or abridges the Central law, it ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 23 must be struck down. The Supreme Court also considered similar ratios laid down in the cases of State of T.N. v. Adhiyaman Educational & Research Institute reported in (1995) 4 SCC 104; Preeti Srivastava (supra) and State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya reported in (2006) 9 SCC 1. In the process, the Supreme Court also overruled the case of Bharti Vidyapeeth v. State of Maharashtra to the extent it held that the entire gamut of admissions was covered by List I Entry 66 leaving no scope for the State to have its say in the field allocated to it under Entry 25, List III and which is still unoccupied by the Central field. The Supreme Court also made it clear that exercise of any power under Entry 25, List III would be subject to Central law referable to or affecting the field of Entry 25 List III, thereby paving the way for the State to make enactments and rules under Entry 25 List III for regulating admissions subject to the limits imposed on its power by the Union legislation covering, expressly or by necessary implication, the same field. This would also make it clear that if any conflict arises between the Union and the State legislation, same would have to be resolved by applying the test of adverse impact of the State law on the Union law in view of the provisions of Article 254 of the Constitution of India. Even in the case of Sankalp Charitable Trust & anr v. Union of India & ors reported in (2016) 7 SCC 487, the Hon'ble Apex Court has reiterated this very principle of law as laid down in ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 24 Modern Dental College (supra).
22. Having understood the limits on the State power to enact and make rules by taking recourse to its power under Entry 25 List III so as to regulate process of admissions to the institutions imparting, amongst other, medical education, now that we have to consider the impugned clauses of the Admission Rules of respondent IMS. These clauses, as stated earlier, make condition of rendering of rural service on or before stipulated date i.e. 31st December 2016 as compulsory and give not only first priority to the candidate who has completed rural service on the basis of the appointment order issued by the Dean of respondent IMS but also give weightage in marks @ 10% of the NEET score subject to maximum of 30% of NEET score for each year of service rendered in rural area at NGO which is recognized by the respondent IMS and posting to which is also done by the respondent IMS. Significantly, no such compulsion, prioritization and weightage for rural service is seen to be made in the rules framed by the State of Maharashtra governing procedure for selection and admission to post-graduate medical courses on the basis of NEET PG 2017. We have also seen that under Entry 25, List III, the State has power to legislate or frame Rules regulating admissions to various institutions and Universities including medical institutions in the State, subject to the power of the Union to enact for ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 25 coordinating and also determining standards of higher education and if any enactment or the rules framed by the State under Entry 25, List III has the effect of substantially abridging or wiping out the Central legislation, the later must prevail in view of the provisions of Article 254 of the Constitution of India. But, here is the case wherein there is no dispute raised about any conflict between the State law and the Union law and the dispute raised is about the conflict between Regulations of 2000 and Admission Rules of respondent IMS which are published in Information Booklet. To be precise, the controversy involved here is about inconsistency of clauses 4.5, 10 (impugned clauses) with clause 9 (IV) of Regulations of 2000, as amended up to date. The Admission Rules containing impugned clauses are framed by a private institution run by a registered Trust like respondent IMS which is not the "State" as defined under Article 12 of the Constitution of India, as rightly submitted by the petitioners. Obviously, therefore, a private institution like respondent IMS, not armed with any State power under Entry 25, List III, cannot frame any rules regulating admissions to its post-graduate medical courses so as to adversely or prejudicially affect the rules framed by the Union under Entry 66 List I and which occupy the field and for that matter, even by the State under Entry 25 List III which completely regulate the admission process.
::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 26
23. Regulations of 2000 are the rules framed under Central legislation and clause 9 has been held to be a self-contained Code governing the procedure to be followed for admission to medical courses by the Supreme Court in the case of Dinesh Singh Chauhan (supra). It has also held that there are certain areas in education field and the procedure for selection of candidates for post-graduate degree courses being one amongst other, where the Central legislation and regulations must prevail. Relevant observations of the Hon'ble Apex Court which appear in paragraph 24 are reproduced thus :
"24. 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 much less 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 Schedule VII List I Entry 66 of the Constitution (see Preeti Srivastava v. State of M.P.). The procedure for selection of candidates for the post-graduate degree courses is one such area on which the Central legislation and regulations must prevail."
24. In Dinesh Singh Chauhan (supra), examining the legality and correctness of the rules framed by the State of UP providing for ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 27 reservation of 30% seats for in-service candidates who had worked in remote and difficult areas and not for in-service Government medical officers generally, the Apex Court held that when Regulation 9 (II) does not envisage reservation of seats for the post-graduate degree courses generally, the State Government in law had no authority to issue a Government order dated 28.2.2014 providing for reservation of 30% of the seats for all in-service candidates and such an order ran contrary to regulation 9 of Regulations of 2000. This would only re-enforce the view that we have already taken in this case and which is expressed in earlier paragraph. If the State, by taking recourse to its power under Entry 25 List III cannot make any rules regulating admission procedure to institutions imparting medical education contrary to or inconsistent with clause 9 of Regulations of 2000, it can hardly be digested that a private institution like respondent IMS can do so.
25. This, however, does not answer the question as to whether or not a private institution like the respondent IMS can still frame rules regulating admissions to post-graduate medical courses by prescribing higher standard in view of the fact that it is a private institution enjoying some autonomy in the field, though it is not a "State" within the meaning of Article 12 of the Constitution of India. The answer to the question can be found in earlier precedents. In the case of D. N. Chanchala (supra), a ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 28 3-Judge Bench of the Apex Court held that it is well-settled law that the Government and also private agencies imparting medical training have a right to frame rules for admission as long as these rules do not run counter to the university statutes or the regulations framed by the State or the Union Territory and do not suffer from infirmity - constitutional or otherwise. The observations of the Apex Court appearing in paragraph 22, insofar as they are relevant for determining the controversy involved in this petition, are reproduced thus :-
"The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas. Obviously one university for the whole of the State could neither have been adequate nor feasable to satisfy those needs. Since it would not be possible to admit all candidates in the medical college run by Government, as also other private agencies who found such centres for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise..."
26. Even in the case of Nachane Ashwini Shivram & ors (supra), the Full Bench of this Court recognizing independent and separate status of respondent IMS held that admissions to its courses would not be governed by the rules framed by the State Government and ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 29 respondent IMS would be entitled to control admissions in accordance with rules framed by it. This was held because the autonomy of the respondent IMS to make admissions to the extent of 50% of the total seats from amongst the students from outside the State of Maharashtra was questioned and to this extent it was held that the respondent institution did possess the requisite authority to control admissions in accordance with the rules framed by it. This provision contained in the Admissions Rules of respondent IMS was uniformly applicable to all students interested in securing admission to medical courses offered by respondent IMS and did not have the effect of providing undue advantage to less meritorious candidates nor did it affect adversely the merit criterion set by the State rules. Therefore, Nachane Ashwini is the case which cannot be understood as giving a complete free-hand to respondent IMS in controlling admissions to its post-graduate medical courses and its power to do so would be subject to the Central regulations already occupying the field.
27. A combined effect of D. N. Chanchala and Nachane Ashwini (supra) ratios would be that a private institution like the respondent IMS can frame its admission rules so as to regulate admissions to post- graduate medical courses, but only to the extent that they do not run in conflict with or do not appreciably abridge the central field by creating a ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 30 heavy and devastating impact on the central regulations. Whether any rule framed by the State Government and for that matter, even by a private institution like respondent IMS, appreciably abridges the Central regulations and undermines the procedure of admission to post-graduate medical courses laid down under the Central regulations or not is a question of fact to be determined on the basis of facts and circumstances of each case. Viewed in this way, now it would be necessary to examine the impact that the impugned clauses of Admission Rules of respondent IMS would have on clause 9 (IV) of Regulations of 2000.
28. We have already discussed the nature of the impugned clauses. They have the effect of making rural service compulsory, giving prioritization to rural service and also offering weightage in marks @ 10% of the total marks obtained in NEET PG-2017 subject to marks upto 30% thereof for each year of service rendered at NGOs recognized by respondent IMS on the basis of postings done by respondent IMS. Such compulsion, prioritization and according of weightage viz-a-viz rural service is conspicuously absent in Regulations of 2000, which has primacy over the field as held in the case of Dinesh Singh Chauhan (supra).
29. Now, let us take the case of weightage first. Proviso to clause 9 (IV) is relevant in this regard. It gives incentives in marks @ 10% of ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 31 total marks obtained at NEET for each year of service completed in remote and/or difficult areas as defined by the State Government subject to maximum of 30% of the total NEET score. It does not envisage similar weightage to be given for rendering of rural service. When weightage for rural service is given, as has been done by clause 10.1 of the impugned clauses, it would have the effect of giving more advantage to the candidates aspiring for post-graduate medical courses and even if such candidates have scored lesser marks in NEET PG 2017 than the others, still such candidates, by virtue of rural service weightage, would steal the march over candidates who have secured more marks in NEET-2017. This would, in our view, compromise the criterion of merit to be determined strictly in accordance with clause 9 (IV) of Regulations of 2000 which recognizes giving of weightage to only those candidates who have rendered service in remote and/or difficult areas of the State and does not extend the same benefit to rural service. A candidate in a given case, may have no qualification of rural service but may have done service in the remote and/or difficult areas as per clause 9 (IV) of Regulations of 2000, still, may be at a disadvantage qua the candidate who has done both rural service in terms of clause 10.1 of the impugned clauses and remote and/or difficult area service as per clause 9 (IV) of Regulations of 2000. This is how clause 10.1 of the impugned clauses would undermine merit criterion of Regulations of 2000.
::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 32
30. As regards compulsion of rural service (clause 4.5 (I) of the impugned clauses), there is no similar provision either under the Regulations of 2000 or the procedure prescribed for admission to these courses by the State Government for NEET PG-2017. Regulations of 2000 or the State rules also do not contain any provision akin to clause 5.1 of the impugned clauses declaring a candidate who has not rendered any rural service as non-eligible for securing admission to post-graduate medical courses offered by respondent IMS. Similarly, neither the Central regulations nor the State rules give any sort of priority to the candidates who have completed any rural service muchless the rural service following an appointment order issued by the Dean of respondent IMS. But, clauses 4.5 and 10.1 of the impugned clauses do so. Such compulsion and prioritization provided under these impugned clauses run completely contrary to the provisions of clause 9 (IV) of Regulations of 2000 and the effect that they produce again is the same, of compromising the merit criterion prescribed under clause 9 (IV) of Regulations of 2000. By making rural service compulsory and by shutting doors on non-rural service candidates, clauses 4.5 and 5 of the impugned clauses, candidates who are otherwise eligible and are more meritorious as per the merit criterion set by clause 9 (IV) of Regulations of 2000 are discriminated against. Same discriminatory effect is created ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 33 by clause 4.5 (iv) of the impugned clauses which pruioritizes rural service.
31. It is argued that the criteria of compulsion, prioritization and giving of weightage for rural service laid down by respondent IMS under its Admission Rules are only the conditions prescribed in addition to the condition of giving of incentive marks for service in remote and/or difficult areas under Regulations of 2000 and could be seen as enhancing the criterion of merit laid down under Regulations of 2000 especially when there is no motive of earning profit. It is also argued that all those criteria relating to rural service would subserve the public interest by encouraging medical graduates to render their services to rural populace deprived of good facilities of medical aid. It is further submitted that these criteria are in consonance with the National Health Policy - 2017.
32. We would have accepted the submissions had the impugned clauses not had the effect of substantially altering the merit criterion laid down under clause 9 (IV) of Regulations of 2000 resulting in causing of prejudice to the candidates who have scored more marks at NEET and giving of advantage to the candidates who have scored lesser marks at this examination. We must say, the effect of impugned clauses is not the one of raising the standard of giving admissions to post-graduate medical courses by increasing the bench mark of 50th percentile or 40th percentile ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 34 as the case may be, to some higher bench mark as for example, 60 th percentile of 50th percentile, as the case may be, as observed in Preeti Srivastava (supra), but essentially is of giving advantage to those candidates who have done rural service over and above the candidates who have not done such service or who have even done service in remote and/or difficult areas of the State. A condition which raises the bar of merit from some minimum level to higher level, could qualify itself to be termed an additional condition or would amount to prescription of higher standard of merit, as it is uniformly applicable, to all aspirants, without any discrimination and without making any irrational divisions amongst them having no reasonable nexus with the object sought to be achieved by such categorization (see: Chitra Ghosh v. Union of India (1969) 2 SCC
228). But, a condition, which places a rural service aspirant above the non-rural service one would prejudicially affect the latter in a case where no such advantage is expressly given in the central regulations occupying the field. Therefore, unless such an advantage for candidates completing rural service is envisaged in the central regulations, same cannot be permitted to be prescribed by a private institution like respondent IMS. The contention made in this regard is, therefore, rejected.
33. There is yet another argument about how the merit or ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 35 excellence is to be judged in the context of admissions to post-graduate medical courses. The contention is that concept of merit is composite and multi-dimensional and, therefore, all those aspects which are seen as desirable, rightful and beneficial in public interest, must also be considered as laying down together a criterion for achieving the goal of merit or excellence in institutions of higher education. Thus, it is argued that when rural service is seen to be desirable and beneficial for villages in the State and the National Health Policy also encourages rural service, it should be considered as enhancing the criterion of merit laid down in clause 9 (IV) of the Regulations of 2000. Reliance has been placed on Dr Jagdish Saran & ors v. Union of India (supra).
34. In the case of Dr Jagdish Saran, it is held that excellence is composite and the human heart and its sensitivity are as precious in the scale of educational values as the human head and its creativity. It is also found that social medicine for the common people is more relevant than peak performance in freak cases. But, we must note here that even while observing so, the Apex Court struck note of caution that if the criterion of merit is to be judged in this manner, care must be taken to ensure that a candidate with less marks is not preferred to a candidate with higher marks and that a Court has to adopt a holistic approach by taking into account all relevant provisions. Relevant observations of the Apex Court ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 36 as they appear in paragraph 21, are reproduced thus :
"21. Before moving to the next aspect we may touch upon a slightly different angle which opens up a new point of view. What is merit or excellence ? If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit- and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears-then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases. Marks on this basis will take us to the same preference as reservations for in-university candidates. Here we are not preferring one with less marks, but adopting a holistic manner of marking linked up with backward settings, institutional orientation and like considerations."
It is clear that while considering the incentive marking for rural service in the present case, we have to take a holistic view of the issue ensuring all the while that no one with lesser mark is preferred to the one having higher marks. MCI which framed Regulations of 2000 has, in its wisdom, prescribed that incentive marks be given for service in remote and/or difficult areas of the State. Regulations of 2000 do not envisage anywhere giving of similar or some weightage in marks for rural ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 37 service. Rural service, without dispute, cannot be equated with service in remote and/or difficult areas as defined in the Government Resolution dated 3.5.2011. It would then follow that concept of merit, as evolved by MCI under Regulations of 2000, envisages linking of marks with remote and/or difficult areas only and not with rural service in general, as a solution for providing social medicine to common people. This would further show that MCI has given its meaningful consideration to all relevant factors by taking a holistic approach and then, we have to say, this Court has no power to substitute the view of MCI or speak for its wisdom, the MCI being the final authority and expert body in the matter of exercising over all superintendence, control and direction over the NEET.
35. Lastly, it is submitted by learned counsel for respondent IMS and the interveners that there is no express provision in Regulations of 2000 prohibiting prescription of any additional criteria in the nature of compulsion for rural service, priority for rural service and weightage in marks for rural service and, therefore, such criteria could always be prescribed by respondent IMS. Similar argument about absence of express provision prohibiting prescription of additional criterion was repelled by the Supreme Court in the case of Dinesh Singh Chauhan (supra). In that case the Regulations did not provide for reservation for ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 38 in-service candidates in "postgraduate degree courses", but provided for reservation for in-service candidates for post graduate "diploma" courses. The Supreme Court held that Regulations of 2000 are self-contained Code and there was nothing in the Regulations to even remotely indicate that a separate channel for admission to in-service candidates has been provided at least in respect of post-graduate degree courses. The Supreme Court further held that if the Regulations intended a similar separate channel and made provision of in-service candidates even in respect of post- graduate "degree" courses, the Regulations would have expressly provided for such separate channel or reservation for in-service candidates aspiring for post-graduate degree courses. Therefore, the Apex Court held that by necessary implication, it would have to be found that a separate channel for in-service candidates was not permissible for admission to post-gradute "degree" courses. Following this very reasoning, we find that absence of any express prohibition on giving of advantage to candidates who have done rural service in clause 9, cannot be interpreted as permitting private institutions like respondent IMS to prescribe criterion of compulsion of rural service, prioritization of rural service and giving of incentive marks for rural service to the candidates desirous to seek admission to post-graduate medical courses. If the MCI which framed Regulations of 2000 intended to accord some priority, some incentive and indispensability to rural service, it would have ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 39 expressly made provision in that regard in Regulations of 2000 themselves just like it made an express provision regarding giving of incentive marks to candidates who have completed service in remote and/or difficult areas by adding proviso to clause 9 (IV) which was introduced through amendment vide notification dated 15.2.2012. When the MCI did not make any such express provision, it would have to be held by necessary implication that MCI did not intend to give any advantage for rendering of service in rural areas over and above and even in exclusion to the rendering of service in remote and/or difficult areas. The contention is, therefore, rejected.
36. In the result, we find merit in this writ petition. The petition deserves to be allowed. It would inevitably mean that the impugned clauses i.e. clauses 4.5 and 10.1 of Admission Rules of respondent IMS would have to be quashed and set aside. The second clause of clause 10 which is clause 10.2, we find, is also linked to clause 10.1 and, therefore, the entire clause 10 would have to be quashed and set aside. This is also what prayer clause (a) of the petition seeks. Since clause 4.5 of the Admission Rules of respondent IMS is now being quashed, clause 5.1 declaring as non-eligible those candidates not fulfilling the criterion of clause 4.5 would, by necessary implication, be rendered otiose to that extent and, therefore, we do not find it necessary to expressly set it aside. ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 ::: 40
37. The petition is allowed. Impugned clauses 4.5 and 10 of Mahatma Gandhi Institute of Medical Sciences, Sevagram Postgraduate Medical Courses Selection Rules, 1985 as published in the Information Booklet issued for provisional admission to post-graduate medical courses 2017-18, are hereby quashed and set aside and it is directed that the process of admission shall be carried out in accordance with Regulations of 2000, however, sans the impugned clauses which are hereby quashed and set aside.
Rule is made absolute accordingly. No costs.
S. B. SHUKRE, J B. P. DHARMADHIKARI, J
joshi
::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:30 :::