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Bombay High Court

Dr. Aditya Shrikant Kelkar & Others vs State Of Maharashtra & Others on 5 February, 1998

Equivalent citations: 1998(4)BOMCR16

Author: S. Radhakrishnan

Bench: S. Radhakrishnan

ORDER
 

Ashok C. Agarwal, J. 
 

1. Petitioners, in the present group of petitions, are aspirants for Postgraduate medical courses commencing from January, 1998, As has now become the normal plight of medical students, present petitioners, per force, have found themselves in Court before commencement of their course.

2. The State Government has from time to time been issuing various Government Resolutions prescribing rules for admission to medical courses. Those that are impugned in the present petitions, pertain to the requirement of performing Government service as a pre-requisite condition for grant of Postgraduate registration.

3. Prior to 1996 candidates, aspiring for Postgraduate registration, were required to execute a bond to serve the Government for a period of two years or pay Rs. 1 Lakh as compensation to the Government. On 28th February, 1996 the Government issued a Government Resolution doing away with the prior requirement of executing a bond and prescribed performance of one year Government service as a pre-requisite for grant of postgraduate registration. This was done as it was found that various students who had obtained Postgraduate registration failed to honour their bonds. As a consequence sufficient number of medical officers in Government hospitals were not available. I! was noticed that the Government was spending huge amounts to impart medical education and hence it was thought that it was the social and moral obligation on the part of the students to serve Government in rural areas in order to have sufficient number of medical officers to provide basic health services to the community. In order to ensure availability of such medical officers in Government hospitals as also in rural areas, the aforesaid resolution provided that the students who have passed their M.B.B.S. Degree and have completed one year Government service will be considered eligible for admission to Postgraduate course. The resolution further provided that the students admitted for Postgraduate course will be required to execute a surety bond of Rs. 1 lakh by way of Bank guarantee, within six months prior to the final examinations, for serving the Government for one year after the postgraduation course failing which the bond amount will be forfeited.

4. On 14th June, 1996 the Government issued a further resolution applying the aforesaid conditions prescribed by 28th February, 1996 resolution, also to private medical colleges.

5. On 17th January, 1997 the Government issued one more resolution postponing the applicability of the resolution of the 28th February, 1996 to July, 1997 term instead of January, 1997 term. This was necessitated as the requisite period of one year Government service was not available to the candidates between the issue of February, 1996 resolution and the commencement of the January, 1997 term.

6. On 3rd of March, 1997, the Government came out with yet another resolution prescribing conditions for registration for the postgraduate course commencing from January, 1998. The resolution inter alia provided that the selection of candidates for admission to the postgraduate course for the term commencing in January, 1998 be made on a temporary basis during the month of February, 1997 itself. The selection be made as per their merit and postings be given as per the common merit list for the available posts of medical officers according to their choice. The resolution further provided that after satisfactory completion of one year Government service, the candidate should be treated as eligible for postgraduate study course. If the candidate failed to complete one year Government service satisfactorily his temporary selection for the postgraduate courses would stand cancelled automatically. The candidates who have completed one year Government service, before admission to postgraduate course, in January, 1998 term, would be considered for final selection as per the existing rules. Director of Medical Education and Research, Mumbai was directed to give wide publicity to the provisions made in the said resolution.

7. Prior to July, 1997 admissions to the Postgraduate courses in medical colleges run by Mumbai Municipal Corporation were given by the Corporation Authorities. On 19th July, 1997, the Government issued a resolution which provided that admissions to the Postgraduate courses in medical colleges run by the Municipal Corporation will also be given by the Government as per admission procedure. This resulted in certain increase in the number of available seats of Postgraduate courses and it was found that, as compared to the seats available, inadequate number of applicants for admission to Postgraduate courses, who have completed one year Government service, would be forth coming. Hence, if large number of seats of Postgraduate courses remained vacant it would adversely affect medical service to the patients. Hence, the resolution, provided that, as per the earlier admission notification applications received till 19th July, 1997 (i) in respect of the candidates who have completed one year Government service on 31st August, 1997, should be considered eligible for postgraduate admissions commencing from July, 1997, on merits. The resolution further provided that the condition laid down in the Government resolution dated 28th February, 1996 of completing one year Government service be relaxed for remaining admissions for the term commencing from July, 1997, (ii) in respect of candidates who had done less than one year service, the condition of one year Government service was relaxed, (iii) the said condition was relaxed also in favour of those who had not done any Government service. The candidates belonging to the aforesaid later two categories were required to execute a bond for performing Government service for the balance or the unperformed period of Government service after completion of the Postgraduate course.

8. On 22nd October, 1997, the Government has passed yet another resolution which inter alia provided that additional seats had become available for being filled up on account of seats of Postgraduate course in medical colleges run by the Municipal Corporation as per the common centralised admission system with effect from July, 1997. It was also realised that sufficient number of candidates who had completed one year Government service were not available to fill in the available Postgraduate seats. It was, therefore, decided that admissions to candidates who had completed one year Government service should first be granted registrations for the January, 1998 semester. Thereafter, the candidates who had not completed one year Government service, or had not done any Government service whatever, should also be granted registration as per their merit. Hence, the condition of completing one year Govern-

ment service, as provided under the resolution dated 28th February, 1996 was relaxed in respect of admissions to the Postgraduate course for candidates who had completed less than one year service as also no service at all. In respect of the aforesaid candidates, they were required to complete the shortfall of two years service after completing their Postgraduate course.

9. The Government finally took out yet another resolution on the 19th January, 1998, and this was during the pendency of these petitions. By this resolution, all candidates who have completed their M.B.B.S. Course and their internship are considered eligible to apply for the Postgraduate course. They include candidates who have completed one year Government/Municipal service in pursuance of the Government resolution dated 28th February, 1996. Under para 3(2)(i) of the resolution candidates belonging to this category would be considered in the first instance. The candidates who had been provisionally selected for admissions to Postgraduate courses for the term commencing from January, 1998 under Government resolution dated 3rd March, 1997 and who were given postings for Government service but are yet to complete their one year service, and also the candidates who had appeared for selection for admission to Postgraduate courses for the term commencing January, 1998 but were not provisionally selected but were given postings and are yet to complete their one year Government service are also considered as eligible. All the aforesaid three categories of candidates are to be considered together and are to be granted admissions on merit from amongst them. After the aforesaid categories of candidates are considered for admission, if any seats remain vacant those would be filled in from amongst the candidates who may not have rendered any Government service whatever as per their respective merit. Candidates who will be admitted by condoning the shortfall of Government service are required to compensate that period on completion of their Postgraduate studies. A further direction is issued to the Director, Medical Education and Research to condone the shortfall of one year qualifying service to the extent of 90 days in future, which period will have to be compensated by serving for the remaining period on completion of the postgraduate studies.

10. Today, i.e. on the 6th of February, 1998, the Government has issued another resolution making certain clarifications in respect of Government resolution dated 19th January, 1998 whereby the words "in the first instance" appearing in para 3(2)(i) is deleted and the term "Government service" appearing in the resolution is made to read and "Government/Bombay Municipal Corporation Service". As per the resolution candidates, who have completed one year Government/Municipal service, will be considered for admission alongwith those who are yet to complete their one year Government/Municipal service.

11. The practice of making repeated changes, adopted by the State Government, in the merit criteria for admission to the Postgraduate medical courses, has been deprecated by this Court in the case of Dr. Prita Subodh Patgaonkar and others v. State of Maharashtra and others . In para 2 of the judgment, it has been observed, as under :

"2. All these writ petitions are before us on account of the repeated changes which have been made by the State Government in the merit criteria for admission to the Post graduate courses in Medicine conducted in the colleges run by the State Government or under its control in the State of Maharashtra. In a short period of a year and half between July 1989 and January 1991 the State Government has changed its merit criteria for admission to the Post Graduate course as many as 4 times. Each time changes which have been made seem to be ad hoc and without any rationale for the change...."

In para 19 of the judgment, it is observed as under:

"19. In order that mindless changes in admission rules may be avoided, we further direct that in future the State Government shall not ordinarily alter rules for admission without consulting the Universities concerned and the Medical Council of India and that the rules, if they are changed, shall be published extensively at least three months before the students appear for the examination or examinations in which their performance is considered as relevant as per new rues for seeking admission to courses of further study."

Further, it would be worthwhile to quote similar observations of the Supreme Court in M.P. Rajappan v. State of Kerala wherein ad hoc arrangements are frowned upon by the Supreme Court in the following words:-

"14. Too long has the State been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum. To keep the education situation uncertain across the nation and the fate of students of higher education tense or in suspense with annual challenges in Court or agitational exercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality."

12. Despite the aforesaid observations the State Government is seen to have brought about various thoughtless changes in the admission rules by issuing the impugned resolutions from time to time and that too without consulting the Universities or the Medical Council of India. This has brought about a sense of uncertainty amongst the students, which is the main cause which brings them to Court practically at commencement of each semester. In the instant case, it is found that the Government has, during the short period between 28th February, 1996 and 6th February, 1998, brought about eight Government resolutions bringing about frequent changes in the admission criteria for the Postgraduate courses. The said practice, which is adopted in the teeth of the directions already issued in the aforesaid cases, will have to be again deprecated.

13. It will be noticed that under Government resolution dated 28th February, 1996, candidates are to be considered for registration for the term commencing from January, 1997 after they have performed one year Government service. It is apparent that if the Government resolution itself is issued at the end of February, 1996 the candidates can never complete their one year's service up to January, 1997. When this apparent anomaly was noticed, the Government has woken up in January, 1997 and issued a resolution dated 17th of January, 1997 wherein it is conceded "however, the Government has noticed that sufficient period of one year Government service is not available for completing the medical service from the date of the issue of the Government resolution dated 28th February, 1996." The applicability of the Government Resolution dated 28th February, 1996 is accordingly postponed and is made applicable from July, 1997 term. Similarly, the Government has issued resolutions dated 3rd March, 1997 and 22nd October, 1997 for regulating admissions for the Post Graduate courses commencing from January, 1998. The said resolutions also prescribe the condition of performing one year Government service. If the Government Resolutions are issued on 3rd March, 1997 and 22nd October, 1997 in neither case can candidates possibly complete one year Government service by January, 1998. In the earlier case the candidates can at best be able to complete nine months or less and in the later case three months or less. It is, therefore, apparent that the Government resolutions are passed without application of mind. The State Government, by doing this, is playing with the career of medical students. This could have easily been avoided by giving a deep thought to the issue. This could have easily been avoided the harassment caused to the prospective candidates who perforce are required to approach the Court from time to time.

14. Before us, we have the following categories of candidates, each of whom, are seeking admission to the Postgraduate medical courses commencing form January, 1998.

(a) Students who have completed M.B.B.S. Degree course and have rendered one year government/municipal service.

(b) Students who have completed M.B.B.S. Degree course and have rendered less than one year government/municipal service.

(c) Students who have completed M.B.B.S. Degree course and have rendered no government/municipal service at all.

15. Issues which have arisen for our consideration, in the light of the diverse contentions raised before us, can be summarised as under:-

(i) Whether the State Government is entitled to prescribe the rule of one year medical service as rule of eligibility for the postgraduate registration or whether prescription of eligibility criteria is in the domain of the Medical Council of India/Universities?

(ii) If the State Government is not so entitled, whether the rule of one year medical service can, nevertheless, be sustained, as rule of selection and not rule of eligibility?

(iii) Whether, the Medical Council of India has prescribed merit as the sole criteria for selection to Postgraduate courses?

(iv) If yes, whether State Government is entitled to lay down rule of selection contrary to the directions of the Medical Council of India?

(v) Whether the admissions to the Postgraduate registration have to be granted on merit alone?

(vi) Which are the constitutionally permissible grounds on which criteria of merit for Postgraduate registration can be departed from and whether one year service as Medical Officer as compulsory requirement is one such constitutionally permissible requirement?

(vii) Whether the selection procedure, which results in giving merely left overs in preference over the more meritorious candidates and giving the better choices to the less meritorious candidates can be sustained?

(viii) Is it open to the State Government to issue the Government Resolution dated 22nd October, 1997 and 19th January, 1998 in the teeth of Section 65 of the Maharashtra Universities Act, 1994?

(ix) Whether the Government Resolution dated 28th February, 1996; 19.7.1997; 22nd October, 1997, 19th January, 1998 apply for admission to Postgraduate registration only to Government Colleges or whether they also apply to Postgraduate registration in B.M.C. Colleges?

(x) Whether the candidates who have been given posting as Medical Officers, in pursuance of Government Resolution dated 3rd March, 1997 can contend that they have been given confirmed registration qua a particular subject with the only condition of completing one year service or whether their selection is not for a confirmed registration but is merely provisional?

(xi) Whether the candidates who have been given posting as Medical Officers in pursuance of Government Resolution dated 3rd March, 1997 are given admission or is it merely selection to a post, and that too provisional, which does not vest any right in them qua a particular registration?

(xii) If it is held that the candidates given postings as Medical Officer, as per Government resolution dated 3rd March, 1997, are given a confirmed registration qua particular posts, whether it would be open to the State Government Resolution dated 22nd October, 1997 so as to expand the fray of selection and to disturb the confirmed registration already given to such candidates?

(xiii) Whether it was proper on the part of the State Government to issue the Government resolution dated 22nd October, 1997 and 19th January, 1998 in the teeth of the Judgement (dated 23rd December, 1997 given by the Aurangabad Bench (Coram: Chapalgaonkar, J.) in Writ Petition Nos. 3971 of 1997 and 4543 of 1997) as also the Judgement of Nagpur Bench (dated 9th April, 1997 (Coram: Ghodeswar & Radhakrishnan, JJ.) in Writ Petition No. 1018 of 1997)?

(xiv) Whether the aforesaid decisions can be said to have held that the registrations given in pursuance of the Government Resolution dated 3rd March, 1997 are confirmed registrations or whether the observations to that effect are obiter in nature?

(xv) Whether the candidates who have been given registration on the basis of Government Resolution dated 19th July, 1997 and who have not completed one year service as on today can contend that they should be given Postgraduate registration although they have not completed one year service?

(xvi) Whether candidates who have been given registration in pursuance of Government Resolution dated 19th July, 1997 should suffer merely because of their postings as Medical Officer did not start well in time so as to enable them to complete the period of one year service before January, 1998?

(xvii) Whether it would be unjust to the candidates who have already acted upon the Government Resolution dated 19th July, 1997 by not giving them benefit of their postings as Medical Officers and to consider them on par with candidates who have not joined any service and who are claiming on the basis of their merit alone?

16. The first issue relates to the competence of the State Government to issue Government Resolutions prescribing one year medical service as a rule of eligibility/ selection. In other words, whether the State Government was entitled to lay down a condition of performance of medical service as rule of eligibility/selection.

17. In the case of Shri Ram Krishna Dalmia v. S.R. Tendolkar the Supreme Court has observed as under:-

"Article 14 forbids class legislation; it does not forbid reasonable classification. In other words to pass the test of permissible classification two conditions must be fulfilled, (i) that the classification is founded on intelligible differentia which distinguishes persons or things that are grouped to-

gather from others left out of the group and, (ii) that differentia must have a rational relation to the object sought to be achieved. The first group of persons for whom seats have been reserved are the sons and daughters of residents of Union territories other than Delhi. These areas are well known to be comparatively backward and with the exception of Himachal Pradesh they do not have any Medical College of their own. It was necessary that persons desirous of receiving medical education from these areas should be provided some facility for doing so. As regards the sons and daughters of Central Government servants posted in Indian Missions abroad it is equally well known that due to exigencies of their service these persons are faced with lot of difficulties in the matter of education. Apart from the problems of language, it is not easy or always possible to get admission into institutions imparting medical education in foreign countries. The Cultural, Colombo Plan and Thailand scholars are given admission in medical institutions in this country by reason of reciprocal arrangements of educational and cultural nature. Regarding Jammu & Kashmir scholars it must be remembered that the problems relating to them are of a peculiar nature and there do not exist adequate arrangements for medical education in the State itself for its residents. The classification in all these cases is based on intelligible differentia which distinguishes them from the group to which the appellants belong."

18. In the case of Kumari Chitra Ghosh and another v. Union of India and others the Supreme Court has noticed the aforesaid case and has observed, as under ;

"9. It is the Central Government which bears the financial burden of running the medical college. It is for if to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial geographical or other reasonable basis it is not for the Courts to interfere with the manner and method of making the classification."

"10. The next question that has to be determined is whether the differentia on which classification has been made has rational relation with the object to be achieved. The main purpose of admission to a medical college is to impart education in the theory and practice of medicine. As noticed before the sources from which students have to be drawn are primarily determined by the authorities who maintain and run the institution, e.g., the Central Government in the present case. In P. Rajendran v. State of Madras it has been stated that the object of selection for admission is to secure the best possible material. This can surely be achieved by making proper rules in the matter of selection but there can be no doubt that such selection has to be confined to the sources that are intended to supply the material. If the sources have been classified in the manner done in the present case it is difficult to see how that classification has no rational nexus with the object of imparting medical education and also of selection for the purpose."

19. In the case of D.N. Chanchala etc. v. The State of Mysore and others etc. the Supreme Court has observed, as under:

"14. In view of this consequence, Counsel for the petitioner made three submissions; (1) that once the petitioner was eligible for admission to a medical college affiliated to the Karnataka University according to the Ordinances of that university, the State Government could not make rules, the effect of which was to deprive her of admission; (2) that the university wise distribution of seats provided under Rule 9(1) was discriminatory and being without any rational basis violated Article 14 of the Constitution ; and (3) that the reservation of seats under Rules 4 and 5 for the various categories of persons set out therein was far more excessive than permitted by the decisions of this Court and was in violation of Article 15(4). Consequently, Rules 4 and 5 laying down such reservation should be held invalid."

"15. We propose to deal with these submissions in the order in which they were placed before us by Counsel. As seen earlier, there are two sets of provisions dealing with the teaching of medical courses. The first consists of Ordinances of the Universities, and the second consists of the rules framed by the Government for selection of candidates for admission to the Pre-Professional/B.Sc. Part I leading to M.B.B.S. degree. The Ordinances framed by the three universities are made under the different Universities Act setting up those universities and under the powers reserved to them under them. These Ordinances are made for the purposes set out in those Acts and for carrying out those purposes. One of such purposes would be the maintenance of certain academic standards in the various faculties taught in the colleges affiliated to the universities. For the purposes of maintaining such standards the universities lay down certain minimum qualifications for eligibility for entrance in those faculties. These Ordinances and regulations made under the Acts lay down the minimum qualifications required for eligibility and are not to be confused with rules for admission. A candidate may have the minimum qualification so as to make him eligible for entrance in a particular faculty. That does not mean that his being eligible necessarily makes him entitled to admission in that faculty. For, admission can only be commensurate with the number of available seats in such a faculty."

"16. The medical colleges in question are not university colleges but have been set up and are being maintained by the State Government from out of public funds. Since they are affiliated to one or the other of the three universities, the Government cannot frame rules or act inconsistently with the Ordinances or the regulations of the universities laying down standards of eligibility. It is nobody's case that the Government has made rules which are in any way inconsistent with the rules-for eligibility laid down in such Ordinances and regulations."

"17. Since the Government has set up these colleges and maintains them, it has prima facie the power to regulate admission in its own institutions. Counsel for the petitioner pointed out to us no provision from the University Acts which deprives the Government of the power of making rules for admission in its own colleges. That being so, it cannot be said that the Government has no power to regulate admission in its own colleges or that because a student is eligible for admission under the University Ordinances, he automatically gets a right to admission which he can enforce in a Court of law."

"22. ....Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged. See Chitra Ghosh v. Union of India . In our view, the rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Article 14."

"23. The last challenge to the validity of these rules was based on the allegation that they lay down excessive reservation for certain categories of candidates. As already stated, under Clauses (a) to (i) of Rule 4, sixty, out of the present aggregate of 765 seats at the disposal of the Government, are set apart for the various categories of persons therein mentioned. As aforesaid, the Government is entitled to lay down sources from which selection for admission would be made. A provision laying down such sources is strictly speaking not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive. The reservation, as contemplated by Article 15, is the one which is made under Rule 5. ....."

20. In the case of State of Andhra Pradesh and another v. Lavu Narendra Nath and others etc. the Supreme Court has observed, as under:

"7. We have therefore to examine whether the Government had a right to prescribe a test for making a selection of a number of candidates from out of the large body of applicants for admission into the first year M.B.B.S. course and whether such action of the Government contravened any provision already made by the legislature in that respect. Under Article 162 of the Constitution the executive power of a State extends to the matters with respect to which the legislature of a State has power to make laws but this is subject to the provisions of the Constitution. As the Government runs these colleges, it undoubtedly has a right and a duty to make a selection from the number of applicants applying for admission if all could not be admitted. If there was no legislation covering this field Government would undoubtedly be compe-

tent to prescribe a test itself to screen the best candidates. We have next to scrutinies the provisions of the Andhra University Act relied on by the High Court to see whether the action of the Government ran counter to any of those provisions. Under section 23 of the Act it was a body known as the Academic Council of the University which had the power by regulations of prescribing all courses of study and of determining curricula and the general control of leaching within the university and was responsible for the maintenance of the standards thereof. Under sub-section (2)(h) of the Act these powers include the power to make regulations regarding the admission of students to the university or prescribing examinations to be recognised as equivalent to university examinations or the further qualifications mentioned in sub-section (1) of section 33 for admission to the degree courses of the university. Under section 33 no student was to be eligible for admission to a course of study qualifying for admission to a post-matriculation university examination unless he had passed the examination prescribed as qualifying for admission to such course or an examination recognised by the Academic Council with the previous sanction of the State Government as equivalent thereto and possessed such further qualifications, if any, as might be prescribed. Sri Venkateswara University, the only other University functioning in this area, was constituted under a similar statute and had almost identical provisions as those mentioned above."

"8. The above provisions of law do not make it incumbent upon the Government to make their selection in accordance with the marks obtained by the applicant-candidates at the qualifying examination. Obtaining 50% of the marks at the qualifying examinations was the first hurdle to be crossed by any candidate before he could submit an application for admission into a medical college. The Government which ran the colleges had the right to make a selection out of a large number of candidates and for this purpose they could prescribe a test of their own which was not against any law. Merely because they tried to supplement the eligibility rule by a written test in subjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed. The test prescribed by the Government must be considered in the light of a second hurdle for the purpose of a screening to find out who of all the candidates applying should be admitted and who should be rejected. Merely because the university had made regulations regarding the admission of students to its degree courses, it did not mean that anyone who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission to such courses of study. If the number of candidates applying for such admission far exceeds the number of seats available the university can have to make its choice out of the applicants to find out who should be admitted and if instead of judging the candidates by the number of marks obtained by them in the qualifying examination the university thinks fit to prescribe another test for admission no objection can be taken thereto. What the university can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B.B.S. course."

"9. In our view the test prescribed by the Government in no way militates against the power of Parliament under Entry 66 of List I of the Seventh Schedule to the Constitution, The said entry provides :

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

"The above entry gives Parliament power to make laws for laying down how standards in an institution for higher education are to be determined and how they can be co-ordinated. It has no relation to a test prescribed by a Government or by a university for selection of a number of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject."

"15. In our view there is no substance in any of the contentions as will be apparent from our conclusions noted above and the decisions of this Court bearing on this point. The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study. There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility. The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission; the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor."

21. In the case of Dr. Ambesh Kumar v. Principal, L.L.R.M. Medical College Meerut and others, 1986 Supp. S.C.C. 543 it has been observed, as under :

"12. In accordance with the said Government Order dated December 15, 1982, a candidate in order to be eligible for consideration for admission to the Post-graduate course on merit must have secured 55 per cent marks for admission to Post-graduate degree course and 52 per cent marks for admission to the Post-graduate diploma course. Thus a candidate having not secured the requisite marks in M.B.B.S. examination will be ineligible for consideration on the basis of merit for admission to the various Post-graduate course in medical college. The unsuccessful candidates who are not eligible for consideration according to this Government order have questioned the power of the State Government in making the aforesaid order on the ground that the Medical Council by its regulations has already laid down the requisite criteria or standards for admission to the Post-graduate courses in the Medical Colleges in accordance with the merits of the candidates concerned and as such the State Government is not competent to lay down further eligibility qualification for the candidates for being considered for admission in the Postgraduate courses - both in the degree and diploma courses. It has also been contended that the State Government is not competent to lay down or prescribe the said qualification which, it is alleged, encroaches upon the power of the Central Government as provided in Entry 66 of List I of the Seventh Schedule. It has also been pleaded in the petition that Entry 25 of List III of Seventh Schedule to the Constitution is subject to the provisions of Entry 66 of List I and as such the said Government order being repugnant to the Regulations made by the Indian Medical Council and approved by the Central Government pursuant to section 33 of the Indian Medical Council Act, is invalid."

"18. The said order modifies to a certain extent the earlier notification issued on October 15, 1982 inviting applications for admission to the Postgraduate courses as per notification dated December 3, 1980. In the notification dated December 3, 1980, the criteria for admission to the Post-graduate courses was on the basis of merit only. In para 2 of the said orders the manner how the merit is to be determined has been laid down. In that order there was no such criteria laid down as mentioned in the Government Order dated December 15, 1982. Two questions arise for our consideration which are firstly whether the State Government is competent to make the aforesaid order in question in exercise of its executive powers under Article 162 of the Constitution. This Article specifically provides that the executive powers of the State shall extend to matters with respect to which the legislature of the State has power to make laws. Entry 25 of the Concurrent List i.e. List III of the Seventh Schedule to the Constitution provides as follows :"

"19. The State Government can in exercise of its executive power make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the State legislature. The impugned order made by the State Government pursuant to its executive powers laying down the eligibility qualification for the candidates to be considered on merits for admission to the Post-graduate courses in Medical Colleges in the State, is valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in Entry 66 of List I. Entry 66 of List I is in the following terms :"

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

"21. The impugned Government Order dated December 15, 1982 lays down the criteria or eligibility qualification i.e. obtaining of 55 per cent marks by candidates seeking admission in the Post-graduate degree course and obtaining of 52 per cent marks by candidates seeking admission to Post-graduate diploma course for being considered for selection. Entry 25 confers on the State Government as well as the Stale legislature the powers to make orders in respect of matters mentioned in Entry 25 of List III of the Seventh Schedule to the Constitution i.e. with regard to medical education the only limitation being that such order of the State legislature will be subject to the provisions of Entry 66 List I i.e. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. The order in question merely specifies a further eligibility qualification for being considered for selection for admission to the Post-graduate courses (degree and diploma ) in the Medical Colleges in the State in accordance with the criteria laid down by Indian Medical Council. This does not in any way encroach upon the regulations that have been framed under the provisions of section 33 of the Indian Medical Council Act. On the other hand in order to promote and further the determination of standards in institutions for higher education, the State Government who runs these colleges provide an additional eligibility qualification....."

"22. In the instant case the number of seats for admission to various Postgraduate courses both degree and diploma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these course of study. In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by regulations made under the Indian Medical Council Act, cannot be said to be in conflict with the said regulations or in any way repugnant to the said regulations. It does not in any way encroach upon the standards prescribed by the said regulations. On the other hand by laying down a further qualification of eligibility it promotes and furthers the standard in an institution."

"23. The Government who runs these colleges has the right to prescribe a test of eligibility as has been held by this Court in the case referred to above."

"26. On a consideration of the aforesaid decisions we are unable to hold that the impugned order dated December 15, 1982 has in any way contravened or encroached upon the power of the Central legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List I of Seventh Schedule to the Constitution. There is no conflict between the regulations and also the order in question. The State Government by laying down the eligibility qualifications namely the obtaining of certain minimum marks in the M.B.B.S. examination by the candidates has not in any way encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the Central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification. We are in full agreement with the reasoning and conclusion of the High Court in this respect. This contention, therefore, in our considered opinion, is without any merit."

22. In the case of Ajay Kumar Singh and others v. State of Bihar and others , the Supreme Court has observed, as under :

"18. A review of the provisions of the Act clearly shows that among other things, the Act is concerned with the determination and co-ordination of standards of education and training in medical institutions. Sections 16, 17, 18 and 19 all speak of "the courses of study and examinations to be undergone" to obtain the recognised medical qualification. They do not speak of admission to such courses, section 19-A expressly empowers the Council to "prescribe the minimum standards of medical education" required for granting undergraduate medical qualification. So does section 20 empower the Council to prescribe standards of postgraduate medical education but "for the guidance of universities" only. It further says that the Council "may also advise universities in the matter of securing uniform standards for postgraduate medical education throughout India". (The distinction between the language of section 19-A and section 20 is also a relevant factor, as would be explained later.) Clause (j) of section 33 particularises the subjects with respect to which Regulations can be made by the Council. It speaks of the courses and period of study and the practical training to be undergone by the students, the subjects of examination which they must pass and the standards of proficiency they must attain to obtain the recognised medical qualifications but it does not speak of admission to such courses of study. Indeed, none of the sections aforementioned empower the Council to regulate or prescribe qualifications or conditions for admission to such courses of study. No other provision in the Act does. It is thus clear that the Act does not purport to deal with, regulate or provide for admission to graduate or postgraduate medical courses. Indeed, insofar as Postgraduate courses are concerned, the power of the Indian Medical Council to "prescribe the minimum standards of medical education" is only advisory in nature and not a binding character. In such a situation, it would be rather curious to say that the regulations made under the Act are binding upon them. The Regulations made under the Act cannot also provide for or regulate admission to Postgraduate courses in any event."

"19. The Regulations made by the Medical Council in 1971 (revised up to January 1978 (s/c 1988) speak generally of students for postgraduate training being selected "strictly on merit judged on the basis of academic record in the undergraduate course". This is more in the nature of advice and not a binding direction. The regulation does not say that no reservations can be provided under Article 15(4). The power conferred upon the State by Clause (4) of Article 15 is a constitutional power. The said power obviously could not have been overridden or superseded by a Regulation made by the Indian Medical Council under the Act. The Regulation must be read consistent with Article 15(4) and if so read, it means that the students shall be admitted to postgraduate training strictly on the basis of merit in each of the relevant classes or categories, as the case may be. Any other construction seeking to give an absolute meaning to the said Regulation would render it invalid both on the ground of travelling beyond the Act. It may also fall foul of Article 15(4)....."

"24. In our opinion, the situation in the case before us is no different. The State will regulate the admission policy and at the same time adhere to the standards determined by the Indian Medical Council."

"26. Even if one relates the Indian Medical Council Act to Entry 25 of List III in addition to Entry 66 of List I, even then the position is no different-for the Indian Medical Act does not purport to regulate the admissions or admission policy to postgraduate medical courses. The field is thus left free to be regulated by the State. The State can make a law or an executive rule; in this case it has chosen to make an executive rule."

23. In the case of State of M.P. v. Nivedita Jain. , while dealing with the regulation framed by the Indian Medical Council, relaxing the minimum qualifying marks for Scheduled Castes and Scheduled Tribes candidates for admission, the Supreme Court has proceeded to observe, as under :

"Entry 66 in List I (Union List) of the 7th Schedule to the Constitution relates to 'coordination and determination of standard in institutions for higher education or research and scientific and technical institutions'. This entry by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst candidates who are eligible for such admission. On the other hand, Entry 25 in List III (Concurrent List) of the same Schedule speaks of 'education, including technical education, medical education in universities, subject to Entries 63, 64, 65 and 66 of List I .... vocational and technical training of labour'. This entry is wide enough to include within its ambit the question of selection of candidates to medical colleges and there is nothing in the Entries 63, 64 and 65 of List I to suggest to the contrary. We are, therefore, of the opinion that Regulation II of the Council which is merely directory and in the nature of a recommendation has no such statutory force as to render the order in question which contravenes the said regulation illegal, invalid and unconstitutional."

24. From the aforesaid decisions it is clear that the State has ample power and authority to prescribe conditions for admission to undergraduate and postgraduate medical courses. The same, in no way, impeaches upon the power of the Central Government conferred under Entry 66 in List I (Union List) of 7th Schedule of the Constitution. The said Entry deals merely with co-ordination and determination of standard in institutions for higher education or research and scientific and technical institutions. The same does not deal with laying down conditions for selection of candidates for admission to Medical Colleges. This, the State Government, can legitimately provide for, in exercise of power conferred by Article 162. The same would be within its competence under Entry 25 in List III (Concurrent List) of the 7th Schedule. Regulations made by Medical Council of India under Indian Medical Council Act provide for laying down of standards of medical education. They do not provide for conditions for admission to medical colleges. These Regulations are also not mandatory in nature but are merely recommendatory. Medical education is imparted and heavily financed by the State Government. It has, therefore, every authority to prescribe conditions of eligibility for admissions to medical courses. It has also the authority to select the source from which admissions are to be granted. Providing adequate medical facilities for the people is an essential part of the obligation undertaken by the Government in a welfare State. This is a constitutional obligation cast on the Government. The Government discharges this obligation by running hospitals and health centres both in urban and rural areas. This can be done only by ensuring services of qualified and competent doctors. The Government, therefore, is not only entitled but is obliged to do all that is required to fulfill this obligation. To achieve this object, it can always lay down minimum requirements for admissions to medical colleges.

25. In the case of Vincent Panikurlangara v. Union of India and others it has been observed, as under :

"16. A healthy body is the very foundation for all human activities. That is why the adage "Sariramadyam Khalu dharma Sadhanam". In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. This Court in Bandhua Mukti Morcha v. Union of India aptly observed :--

"It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case, to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Police and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educalional facilities, just as humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity, and no State neither the Central Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials".

"While endorsing what has been said above, we would refer to Article 47 in Part IV of the Constitution. That Article provides :-

"The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."

"This Article has laid stress on improvement of public health and prohibition of drugs injurious to health as one of the primary duties of the State. In Akhil Bharatiya Soshit Karmachari Sangh v. Union of India this Court has pointed out that, "the Fundamental Rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts. So they are made justiciable. However, it is also evident that notwithstanding their great importance, the Directive Principles cannot in the very nature of things be enforced in a Court of Law, but it does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the State." In a series of pronouncements during the recent years !his Court has culled out from the provisions of Part IV of the Constitution these several obligations of the State and called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality. As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority-perhaps the one at the top."

26. In the case of Kirloskar Brothers Ltd. v. Employees State Insurance Corpn. the Supreme Court, while dealing with provisions of Employees' State Insurance Act, 1948, has observed, as under:

"Every human being has the right to live and to feed himself and his dependents. Security of one's own life and livelihood is a precondition for orderliness. Liberty, equality and dignity of the person are intertwined precious rights to every citizen. Article 1 of the Universal Declaration of Human Rights, 1948 assures human sensitivity and moral responsibility of every State and that all human beings are born free and equal in dignity and rights. Article 3 assures everyone the right to life, liberty and security of person. Article 25(1) assures that everyone has a right to a standard of living adequate for the health and well being of himself and of his family, including, among other things, medical care, and right to security in the event of sickness, disability etc. Article 6 of the International Convenient on Civil and Political Rights, 1966 assures that every human being has inherent right to life. This right shall be protected by law. Article 7(b) recognises the right of everyone for the enjoyment of just and healthy conditions of work which ensures in particular safe and healthy working conditions....."

"Article 39(e) of the Constitution enjoins upon the State to secure health and strength of the workers....."

"Article 42, therefore, enjoins the State to make provision for just and human conditions to work and maternity relief. Article 47 imposes a duty on the State of improve public health."

Economic security and social welfare of the citizens are required to be reordered under rule of law. In C.E.S.C. Lid v. Subhash Chandra Bose , the Supreme Court has surveyed various functions of the State to protect safety and health of the workmen and emphasised the need lo provide medical care to the workmen to prevent disease and to improve general standards of health consistent with human dignity and right to personality. In para 32, it was held that the term 'health' implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable man power for economic development. Facilities of health and medical care generate devotion and dedication among the workers to give their best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruits of his labour, to keep him physically fit and mentally alert for leading a successful, economic, social and cultural life. It was held that "medical facilities are, therefore, part of social security and like gilt-edged security, it would yield immediate returns to the employer in the form of increased production and would reduce absenteeism on grounds of sickness, etc." It would thus save valuable manpower and conserve human resources.

"Health is thus a state of complete physical, mental and social well-being and right to health, therefore, is a fundamental and human right of the workman. (SCC P. 464, para 32).

"The maintenance of health is a most imperative constitutional goal whose realisation requires interaction of many social and economic factors. Just and favourable condition of work implies to ensure safe healthy working conditions to the workmen. The periodical medical treatment invigorates the health of the workmen and harnesses their human resources. Prevention of occupational disabilities generates devotion and dedication to duty and enthuses the workmen to render efficient service which is a valuable asset for greater productivity to the employer and national production to the State."

Interpreting the provisions of the Act in para 33, it was held that the Act aims at relieving the employees from health and occupational hazards. The legal interpretation is to ensure social order and human relations."

"9. In Consumer Education & Research Centre v. Union of India a three-Judge Bench of this Court held (hat the jurisprudence of personhood or philosophy of the right to life envisaged in Article 21 of the Constitution enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality. The expression 'life' assured in Article 21 does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure facilities and opportunities to eliminate sickness and physical disability of the workmen. Health of the workman enables him to enjoy the fruits of his labour, to keep him physically fit and mentally alert. Medical facilities, therefore, is a fundamental and human right to protect his health."

27. In the case of Paschim Bangal Khet Mazdoor Samity and others v. State of West Bengal and another the Supreme Court has observed, as under:

"9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State, in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part Ill of the Constitution the position is well settled that adequate compensation can be awarded by the Court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution....."

"16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. See (Khatri (II) v. State of Bihar) . The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a time-bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same....."

28. The aforesaid decisions reiterate the State's obligation to provide health and other services as contemplated under Article 21, 39(e) and (f) and Article 47 of the Constitution. The aforesaid obligation of the State, it is clear, is sought to be met by issue of the present Government resolutions as the same provide that the object of issuing them is to provide adequate health service in the State more particular 'in rural areas where the same is found inadequate. In the resolutions it is further made clear that the Government is expending huge amounts to impart medical education and hence it finds that it is the social obligation on the part of students, who receive the benefits out of the funding by the State Government, to serve the Government in rural areas. It is, therefore, found necessary to ensure that sufficient number of medical officers are made available to provide basic health services to the community. In the circumstances, we find that the State Government is fully justified in issuing Government resolutions for regulating the admissions as also for laying down the selection criteria for the Postgraduate courses.

29. This takes us to the issue relating to merit being the lone criteria for selection for the Postgraduate registration. A question that is to be considered is, whether by issuing the aforesaid Government Resolutions, more particularly the Government Resolution dated 19th January, 1998 read with the clarificatory Government Resolution dated 6th February, 1998 makes admissions purely on merit or whether the merit criteria has been given a go by.

30. While considering the aforesaid Government Resolutions, one has to bear in mind the circumstances which have lead the State Government to issue, the same. In pursuance of directions now issued by the Supreme Court, admissions to the Postgraduate courses-conducted by the Bombay Municipal Corporation are required to be regulated by the Central Admission Procedure to be conducted by the State Government. As a consequence of this, all Postgraduate seats in the Government Colleges as also Municipal Colleges have now become available at the disposal of the State Government. As a consequence, many additional seats have now become available at the disposal of the Government. It is, therefore, apprehended that sufficient number of candidates, fulfilling the requirement of the Government Resolution dated 28th February, 1996; will not be available to fill up all the posts viz. the candidates who have completed one year of medical service.

31. In case of Dr. Ambesh Kumar (supra) it has been observed, as under:--

"It is pertinent to mention in this connection that the number of seats allotted to each of the prescribed courses is on the basis, of two seats per professor and there is a crying necessity in the State for more experts in various disciplines in Medicine and Surgery etc. |t is incumbent on the State Government to see that all these seats earmarked for each of these disciplines or courses are filled up. It appears from Annexure D to the petition in C. A. No. 6119 of 1983 that quite a considerable number of seats in various disciplines were kept vacant as the applicants did not fulfil the eligibility qualification framed by the State Government by its aforesaid order and as a result several Professors and Assistant Profes-

sors who are meant for imparting teaching in these disciplines were kept idle though a considerable fund had to be expended for meeting their emoluments. It is for the State to consider and to see that the seats are filled up in all the disciplines and they are not left vacant in spite of a large number of applicants applying for admission in the various disciplines and the State Government has to evolve such criteria of eligibility that all the seats in different M.D., M.S. degree and diploma courses are filled up."

If one keeps in mind the aforesaid prevailing circumstances, it would appear that the anxiety on the part of the State Government to relax the condition of one year Government service as a prerequisite for Postgraduate registration cannot be faulted. In the circumstances, granting admission also to candidates described in para 3.2(ii)(iii) of the Government. Resolution dated 19th January, 1998 i.e. permitting candidates who have performed less than one year's medical service cannot be faulted. Similarly, no fault can be found for permitting candidates prescribed in para 3.2.3) of the said Resolution, i.e. permitting candidates who have done no medical service at all for being considered for admission after the candidates described in para 2. (ii) & (iii) are exhausted. The object is apparent viz. not to let any seat go a waste and also to ensure provision of medical facilities and health care.

32. A further question, which requires to be considered, is whether the aforesaid Government resolution dated 19-1-1998, which seeks to consider all the candidates falling under para 2. (i), (ii) & (iii) together, is justified. The said paras have clubbed (i) candidates who have completed one years medical service in pursuance of the Government Resolution dated 28th February, 1996 alongwith (ii) candidates who have been provisionally selected for admission to post graduate courses for the term commencing from January, 1998 under Government. Resolution dated 3rd March, 1997 and have been given postings for medical service and have not completed one year service, as also (iii) candidates who nave appeared but have not been selected for admission to the post graduate courses for the term commencing from January, 1998 but have been given postings for medical service at the available vacant posts and have not yet completed their one year Government service. It is contended on behalf of those who have completed one year Government service that they have acted under the promise held out by Government Resolution dated 28th February, 1996 and have completed one year medical service as required. They are, therefore, entitled to be considered for registration in the first instance. They cannot be clubbed with candidates who have not completed the requisite period of medical service. It is, however, contended on behalf of candidates who have commenced their medical service under Government Resolution dated 3rd March, 1997, but have been unable to complete their one year service prior to the commencement of the post graduate courses commencing from January, 1998, that they can hardly be blamed as it was humanly impossible for anyone to complete the said one year's service as the Government Resolution itself is issued in March, 1997. Hence, it was not possible for any candidate to complete one year service by January, 1998. As far as this category of candidates is concerned, they had been excluded from consideration in the first round as per Government Resolution dated 22nd October, 1997. Several of these candidates, therefore, approached this Court by filing the present petitions. As far as these candidates are concerned their grievance is now met by the present Government Resolution dated 19th January, 1998 which treats them on par with the candidates who have completed one years' medical service. Both the aforesaid categories of candidates have a further grievance about the inclusion of candidates, who had failed to secure even provisional admission under Government Resolution dated 3rd of March, 1997 but have been given a postings for medical service and have performed medical service for a period below one year, are being clubbed along with them. It is also a contention of freshers, who are described in para 2. 3) that by not including them along with the candidates described in para 3, 2. (i), (ii) and (iii), merit criteria has been given a go by.

33. Before one considers the validity or otherwise of the aforesaid Government Resolutions one has to bear in mind that the basic object behind issuing the present Government Resolutions commencing from February, 1996 to February, 1998. The object is to make medical service for two years compulsory, one year being required to be performed prior to the postgraduate registration and one year after completion of the postgraduate courses. The ultimate object behind the exercise is to provide health service in the State. The State Government is expending huge amounts towards medical education. It is, therefore, legitimate that it expects the doctors who have availed of medical education at its expense, to render medical service under the State. Having regard to the fact that there is greater tendency of medical practitioners, more especially who have procured Postgraduate degrees, to flock in urban areas to augment their earnings, there is lesser tendency for such doctors to go to the rural areas. Having regard to the inadequacy of the medical and health care service in rural areas the anxiety on the part of the State Government to seek medical service in rural areas is fully justified. Hence, the initial requirement of performing medical service, we find, is fully justified. In the circumstances, we find that Government service for the period of one year, which is required to be performed prior to Postgraduate registration, cannot be said to be unsustainable. We further find that, on account of seats of colleges conducted by Bombay Municipal Corporation, having become available to the Central Pool and being made available for being filled up by the State Government, many (around 273) additional seats have become available. Hence, the anxiety that all the available seats should be filled up and should not be permitted to go a waste, is fully justified. It is apparent that all available seats will not be filled up by the candidates prescribed under para 2(i) of the said Government Resolution viz. the candidates who have completed one years medical service. In the circumstances, relaxation of requirement for ensuring that the seats do not go a waste, cannot be faulted. Similarly, the candidates who had appeared but not selected and who have performed medical service on account of the postings being made available to them, being included for being considered for registration, also cannot be faulted. All the aforesaid candidates are those who have passed their undergraduate medical course viz. M.B.B.S. All of them, in pursuance of the requirement contained in Government Resolution dated 28th February, 1996 and 3rd March, 1997, have performed medical service. Considering candidates who have been provisionally selected for admission but are yet to complete one year's Government service and those who had not been so selected and have yet performed medical service, though have not completed one year, are also being held eligible for selection only to ensure that no seat goes a waste. Registration, however, will be granted strictly on their inter-se merit in respect of candidates appearing in the aforesaid three categories. As far as candidates falling in para 2. 3) of the said Resolution are concerned, they are fresh graduates. They have not performed any medical service at all. They, therefore, fall in a distinct category. They, therefore, will not be justified in claiming that they should also be considered alongwith others. Others have performed medical service in compliance with the requirement of the aforesaid Government Resolutions. Whereas freshers have performed no medical service at all even so they have not been totally excluded from consideration. They will be considered only after the candidates in para 2 (i), (ii) and (iii) are considered. Since the candidates falling under para 2.3) of the said Resolution have not at all complied with the basic requirement of performance of medical service, they cannot claim to be clubbed with those who have performed the same. As far as the candidates who have performed medical service are concerned, they will be considered strictly in accordance with their inter-se merit. In the circumstances, the submission that merit has been given a go by, cannot be sustained.

34. The next issue relates to the validity of the Government Resolutions dated 22nd October, 1997 and 19th January, 1998 in the light of section 65 of the Maharashtra Universities Act, 1994. Section 65 of the Act provides, as under :

"65. In accordance with the reservation policy of the State Government for the weaker sections of society, admissions to all courses in the university departments and affiliated colleges shall be made on the basis of competitive merit in accordance with the rules, if any, made by the State Government and published in the Official Gazette, or by the university and published in the university Gazette by the university:

Provided that, where model rules have been framed by the State Government in the interest of students throughout the State, the university shall adopt the same and such rules shall be published in the university Gazette or the Official Gazette as the case may be, at least six months before the start of any academic session which shall begin not later than first August every year:

Provided further that, having regard to the maintenance of discipline, the authority concerned shall have the power to refuse admission to a student."

Emphasis provided

35. The aforesaid section, it is apparent, requires admissions to all courses in the university and colleges to be made on the basis of merit. The same have to be in accordance with the rules to be made by the State Government or by the university and published either in the Official Gazette or the university Gazette. The same, under the proviso, is required to be published in the Gazette at least six months before the start of an academic session. The object of the aforesaid provision is to give sufficient notice of the rules for admission to the students and that they are not taken unawares or by surprise. The aforesaid provision was considered by a Full Bench of this Court in the case of Govinddas Mannulal Shroff v. State of Maharashtra, 1996(III) LJ. 622. In para 15 of the judgment, the Full Bench has observed, as under:

"15. Such a situation could have been avoided if the State Government had followed section 65 of the Maharashtra Universities Act, 1994. Section 65 of the said Act requires that Model Rules for admission should be published in the university Gazette or Official Gazette six months in advance in the interest of students. Though these Rules are not framed under section 65, in the interest of students, it would be necessary to publish them or make them known earlier and not just on the eve of admission affecting prejudicially so many students. In fact, section 65 is statutory recognition of well established principle that fair play requires that any major change in the admission process should be made known to the students well in advance. Instead of exercising this power in the manner prescribed by the Act, last minute changes are made by the respondents in admission Rules which affect the young students adversely and keeps the coveted education system tense or in suspense with annual challenges in Court which increase the work-load of the Court unnecessarily....."

36. As far as the Government Resolutions, in question, are concerned, the basic Government Resolution requiring one year Government service, was issued on 28th February 1996 which is more than a year prior to the Government Resolutions dated 22nd October, 1997 and 19th January, 1998. In the circumstances, the candidates who are aspiring for registration for January, 1998 term have had almost two years notice of the requirement. In the circumstances, we find that the aforesaid Government Resolutions cannot be successfully assailed on the ground that they fail to comply with the provisions of section 65 of the Maharashtra Universities Act, 1994.

37. The next issue related to the applicability of the Government Resolutions prescribing one year medical service to Bombay Municipal Colleges also. Shri Apte, the learned Additional Advocate General has made a statement that as far as the candidates, who have graduated from the Municipal Colleges are concerned, they have already done their medical service in Municipal hospitals. They will, therefore, be treated as having completed one year medical service. They will, therefore, be considered alongwith candidates who have passed from Government Medical Colleges and have completed one year Government service as contemplated by Government Resolutions dated 28th February, 1996. In view of the statement nothing survives in the said issue.

38. The next issue relates to the admissions already granted to candidates on the basis of the Government Resolution dated the 3rd of March, 1997. Whether the same are merely provisional or whether they amount to confirmed registration subject only to the completion of one year medical service. The material provision in regard to the resolution provides as under :

"Selection of candidates for admission to post graduate course for term commencing in the year January, 1998 be made on temporary basis as per existing rules, during the month of February, 1997" Emphasis provided The resolution further provides, as under :---

"After satisfactory completion of one year Government service the candidates should be treated as eligible for post graduation study course. If the candidate fail to complete one year Government service satisfactorily, his temporary selection for Post graduation course stands cancelled automatically. Candidates who have completed one year Government service before admission to Post graduation course in term January, 1998 will be considered for final selection as per existing rules. After completion of admission procedures if any Post graduate seats are left, these seats will be made available to the term commencing from the July, 1998."

"The responsibility of providing Government service after temporary selection of the candidates for post graduation will be of Dy. Director of Health Service i/c circles. Dean's of Medical Colleges should co-operate Dy.

Directors in this work."                Emphasis provided

39. The aforesaid wordings of the Resolution make it clear that the candidates have been selected on provisional basis and their admissions are made on a temporary basis. It clearly provides that candidates, after completing one year of service, would be treated as eligible for Post graduate course. It is further clarified that candidates completing one year Government service will be considered for final selection. The use of the phrase 'on temporary basis' and the fact that they will be eligible for being considered for final selection only after completion of one year Government service, is indicative of the fact that the admissions are merely provisional and not final. It they were to be granted confirmed registration, in March, 1997 itself, there was no question of they being considered for selection once again for the term commencing from January, 1998. The scheme underlying the resolutions is to earmark candidates who - are prima facie found suitable for registration and send them for medical service preferably in the subjects for which they are likely to be granted final registration. They would, however, be considered afresh after completing one year service as is laid down under the said Resolution. Moreover, none of the candidates have paid any fees for the Postgraduate course nor have they been registered with the university. All this will be done only after final selection for registration is made. In view of the aforesaid, we hold that said candidates have been merely selected provisionally and have been given postings for medical service and they have not been finally selected and there are no confirmed selections. Hence, no right vests in them to claim that they have already been selected for registration.

40. This takes us to the issue relating to the effect of Aurangabad and Nagpur Bench judgments. It is contended on behalf of candidates who have been provisionally selected, that the issue has already been answered by two judgments of this Court. By the judgments, it has been held that the admissions which have been granted are confirmed admissions. Hence, no contrary decision can be taken in the present petitions. In Writ Petition No. 3971 of 1997 and Writ Petition No. 4548 of 1997, which is decided by Aurangabad Bench (Corarn: Chapalgaonkar, J.) on 23rd December, 1997 respondent Nos. 6 and 7 therein had been selected for the M.D. Course in January, 1997 for the term commencing from January, 1998. They again applied for being registered in the Course commencing from July, 1997. The question which arose for consideration was, whether the same amounted to double/concurrent registration which is prohibited under the rules. In the judgment, reference is made to the Government Resolutions dated 28th February, 1996 and 3rd March, 1997 and it is found that the respondent Nos. 6 and 7 are not entitled to be registered for the July session as they were already registered in January, 1997. Though there is a reference to the aforesaid Resolutions, the same have neither been quoted nor discussed. The issue whether the selections made under the aforesaid resolutions were provisional or were confirmed selections, was neither raised nor considered and decided. The judgment proceeds on the assumption that the said candidates have been duly registered for January, 1998 session and a finding is given that they are not again entitled for being registered for July, 1997 session. Since the issue was not raised and decided, we find that the same has no application in the present case. Similar is the position in respect of the decision of the Nagpur Bench in Writ Petition No. 1018 of 1997 in which one of us viz. Justice Radhakrishnan was a party. The order makes it clear that the petition was dismissed summarily at the stage of admission itself. The material part of the order provides, as under :

" ...... The learned A.G.P. has produced before us a xerox copy of the letter written by petitioner on dated 31-3-1997 wherein he has stated that as he was registered for D.C.M. he will not be appearing for D.C.H. in April 1997 as there is no provision for concurrent registration since he is getting registration in M.D. Paediatrics. The Nagpur University Ordinance No. 28 of 1980 also prohibits any candidate for concurrent registration in Post-graduate diploma and degree examination. In view of this, no interference is required. Petition is summarily dismissed."

41. The aforesaid decision, it is clear, proceeds on two counts (i) that the petitioner himself had written a letter wherein he has voluntarily withdrawn from appearing for D.C.H. examination in April, 1997 and (ii) the petitioner himself has stated that there is no provision for concurrent registration and that he had got registration in M.D. Paediatrics. Petitioner, in that petition, in the circumstances, had made two concessions viz. that he was not insisting upon appearing in D.C.H. for which the petition had been filed. He made further concession that appearing would amount to double registration. It is on these concessions that the Court decided not to interfere by recording that Ordinance No. 28 of 1990 also prohibits concurrent registration. In our view, the issue arising in the present petitions was neither raised nor decided. The aforesaid decisions, therefore, will have no application in the present petitions.

42. The next issue for consideration is, whether the registration, under the present Government Resolutions, would be purely on merit or whether merit has been given a go by. It is submitted on behalf of the petitioners, who are freshers i.e. those who have just passed out undergraduate medical course, that registration to be granted under the impugned Government Resolutions will not be strictly according to merit. According to them, candidates who have just passed out M.B.B.S. course are entitled for registration under the Rules framed by the Medical Council of India and the University. They are entitled to seek registration. They should, therefore, be considered on par with the other candidates. If candidates who have done medical service are first considered, meritorious candidates belonging to the fresh graduate candidates will be deprived of registration though they may be more meritorious. It is contended that the State Government is not authorised to impose performance of medical service as prerequisite for registration. Making medical service compulsory and as a condition precedent for registration, is illegal. The Government is, therefore, not entitled to give preference to candidates on the ground that they have performed medical service. Giving them preference would amount to giving go by to merit and merit alone. It would, therefore, be useful to consider whether, and in what circumstances, by passing the test of merit and merit alone can be sustained. The Supreme Court, in the case of Dr. Jagadish Saran and others v. Union of India has, inter alia held, as under :

"20. Again, if the State finds that only students from the backward regions, when given medical graduation, will care to serve in that area, drawn towards it by a sense of belonging, and those from outside will, on graduation leave for the cities or their own regions, it may evolve a policy of preference or reservation for students of that university. That strategy ensures the probability of their serving the backward people for whose benefit the medical courses were opened. Such measures which make for equality of opportunity for medical education and medical service for backward human sectors may be conslitutionalised even by Article 14 and 15....."

"36. When a university or other institution may usefully be made the instrument for promotion of facilities for equal educational opportunity for a class or a region, the State may legitimately resort to institutionally classified reservation ......"

43. The above decision would show that reservation based on university area has been recognised based on its backwardness. The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has, therefore, to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14. The Supreme Court, in the case of N. Vasundara v. State of Mysore has observed, as under :

"If classification based on residence does not impinge upon the principle of equality enshrined in Article 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned rule seems to be an attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors, they have indeed a fundamental right as citizen to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But these possibilities are permissible and inherent in our constitutional setup and these considerations cannot adversely affect the constitutionality of the otherwise valid rule. The problem as noticed in Minor P. Rajendra case and as revealed by a large number of cases which have recently come to this Court is that the number of candidates desirous of having medical education is very much larger than the number of seats available in medical colleges.' The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14....."

44. Supreme Court in the case of Nidamarti Maheshkumar v. State of Maharashtra and others was considering Rule 8(2) of the Rules framed by the State Government, which stated that the qualification required for admission to M.B.B.S. Course in the State of Maharashtra was passing of the 12 standard examination held by the Maharashtra State Board of Secondary and Higher Secondary Education. The rule was challenged on the ground of Article 14 being violated and the High Court upheld the validity of the Rule. An appeal was preferred to the Supreme Court. The Supreme Court discussed its earlier judgment in Dr. Pradeep Jain's case, (supra) in para 4 and referred to two factors mentioned above, which may justify departure from the principle of selection based on merit viz. i) the State interest and (ii) Region's claim of backwardness. Then in para 6 of the judgment at page 1367, the Court considered the argument viz. region-wise classification of admission to medical colleges being defended on the ground that Vidarbha and Marathwada regions are backward as compared to Pune and Bombay regions which were more advanced. The Court referred to the fact that there was no material placed before it to show that the entire region within the jurisdiction of the university in Vidarbha was backward or that the entire region within the Pune university jurisdiction was advanced and referred to the fact that there may quite possibly, in the Pune university jurisdiction, be rural areas which are backward and equally so, there may be, in the region within the jurisdiction of the university in Vidarbha areas which are not backward. Then in para 7 of the judgment, at pages 1369 and 1370, the Supreme Court has observed, as under:--

"7. But we would like to make it clear that it would not be unconstitutional for the State Government to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even it the percentage stipulated by the State Government is on the higher side, it would not fall foul of the constitutional mandate of equality. There are two reasons why such reservation or preference would be constitutionally permissible. In the first place it would cause a considerable amount of hardship and inconvenience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical college in the entire State were to be based on merit without any reservation or preference regionwise. It must be remembered that there would be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result they would be effectively deprived of a real opportunity for pursuing the medical course even though on paper they would have got admission in the medical college. The opportunity for medical education provided to them would be illusory and not real because they would not be able to avail of it. Moreover some difficulty would also arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to persue medical education in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hostels. We are therefore of the view that reservation or preference in respect of a certain percentage of seats may legitimately be made in favour of those who have studied in schools or colleges within the region of a particular university, in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The only question is as to what should be the extent of such reservation or preference. But on this question we derive considerable light from the decision in Dr. Pradeep Jain's (supra) where we held that reservation based on residence requirement or institutional preference should not exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made and that the remaining 30 per cent of the open seats at the least should be made available for admission to students on All - India basis irrespective of the State or the university from which they come. We would adopt the same principle in case of regionwise reservation or preference and hold that not more than 70 per cent of the total number of open seats in the medical college or colleges situate within the area of jurisdiction of a particular university, after taking into account other kinds of reservations validly made, shall be reserved for students who have studied in schools or colleges situate within that region and at least 30 per cent of the open seats shall be available for admission to students who have studied in schools or colleges in other regions within the State."

45. The aforesaid decisions, it would, be clear, have recognised reservation on the basis of residence as also on basis of State interest of regional backwardness. Departure from the strict rule of merit is recognised on the aforesaid basis.

46. In the case of Dr. Sadhna Devi and others v. State of U.P. and others the Supreme Court has observed, as under:

"12. In the case of Slate of M.P. v. Nivedita Jain 15% of the seats for various categories of medical courses in Madhya Pradesh has been reserved for Scheduled Caste and Scheduled Tribe candidates which meant that out of 720 available seats, 108 seats were reserved for Scheduled Castes and another 108 seats were reserved for Scheduled Tribes. When the result of Pre-Medical Examination was published only 18 seats in the category of Scheduled Castes and 2 seats in the category of Scheduled Tribes could be filled because the other candidates could not acquire the qualifying marks laid down under Rule 20. Ninety seats remained vacant in the reserved category for the Scheduled Castes. Likewise, 106 seats remained vacant in the category of seats reserved for the Scheduled Tribes. Thereafter, the Government relaxed the requirement of qualifying marks by 7%. As a result of this seven more candidates in the category of Scheduled Castes and one more in the category of Scheduled Tribes got admitted. Faced with the situation that even after relaxation a large number of seats reserved for Scheduled Castes and Scheduled Tribes remained vacant, the State Government passed an order on 9-9-1980 for completely relaxing to the minimum qualifying marks for these two categories. The Government Order was as under :

"The Government has taken a decision that the candidates belonging to the Scheduled Castes and Scheduled Tribes be admitted to the Medical Colleges in the seats reserved for them in accordance with the merit to be determined on the basis of the marks obtained by then in the Pre-Medical Examination and that for this purpose, the condition relating to the obtaining of minimum qualifying marks be removed....."

"14. This Court, on appeal after referring to the provisions of the Indian Medical Council Act reversed the decision of the High Court and held: (S.C.C. pp. 312-13, para 21:

"......Regulation I prescribes the eligibility of a candidate for admission to medical courses. For maintaining proper standards in Medical Colleges and Institutions it comes within the competence of the Council to prescribe the necessary qualification of the candidates who may seek admission into the Medical College......On the other hand the language in Regulation II which relates to selection of candidates clearly goes to indicate that the Council itself appears to have been aware of the limitation on its powers to frame any such regulation regarding the procedure or process of selection of candidates for admission to the medical course out of the candidates qualified or eligible to seek such admission. ...The Council itself appears to have apprehended that what is contained in Regulation II is merely in the nature of a recommendation and this is evident from the language used in Regulation II particularly when the same is contrasted with the language used by the Council in Regulation I. Regulation II begins with the words 'selection of students in a medical college should be based solely on merit'. We are of the opinion that the use of words 'should be' in Regulation II is deliberate and is intended to indicate the intention of the Council that it is only in the nature of recommendation...."

"15. It was held that the authority of the Council extended to the sphere of maintaining proper medical standards in the medical colleges or institutions necessary for obtaining recognised medical qualifications. It was open to the Council to lay down the minimum educational qualifications required of a student for getting admission into a medical college. In other words, the eligibility of a candidate who may seek to get admission into a medical college for obtaining recognised medical qualifications may be prescribed by the Council. But how the selection was to be made out of the eligible candidates for admission into the medical college was a matter which had necessarily to depend on circumstances and conditions in a particular State."

"19. But the Government has gone one step further. It has now laid down that it will not be necessary for the special category candidates to obtain even the minimum qualifying marks in the admission tests in order to gain admission to the Postgraduate medical courses. In other words, the seats reserved for the three special categories of candidates will be filled up by the candidates belonging to these three special categories even if they fail to obtain the minimum qualifying marks in the tests held. In other words, the candidates belonging to the three special categories who have passed the M.B.B.S. examination will have to take the test for admission to Postgraduate medical courses but that will be an idle formality because they will qualify for admission to the Postgraduate medical courses even though they do not secure the minimum qualifying marks in the tests."

"20. In our view, this rule comes in conflict with the direction given by the Postgraduate Medical Education Committee that 'students for Postgraduate training should be selected strictly on merit. It was open to the State Government to say that selection to the Postgraduate medical courses should be made on the basis of the performance of the candidates in the M.B.B.S. examination only. But the State Government has chosen to hold a test among the persons who have passed the M.B.B.S. examination in order to select candidates for postgraduate courses. It has laid down minimum qualifying marks for admission. Candidates belonging to the three special categories who secure the minimum qualifying marks will have to be admitted so long as their quota of seats is not filled up. But if the special category candidates fail to secure the minimum marks in the tests held, it is not open to the Government to say that even then the special category of candidates must be selected for the Postgraduate courses. If this is done, the merit will be sacrificed altogether."

"22. This Court had occasion to go into this question in the case of Ajay Kumar Singh v. State of Bihar , in which one of us (B.R Jeevan Reddy, J.) was a member. It was held in that case, after considering the judgment of this Court in the case of State of M.P. v. Nivedita Jain , that the State will regulate the admission policy and at the same time adhere to the standards determined by the Indian Medical Council. It was further observed in that case that the impugned provisions of the State of Bihar provided a uniform eligibility criterion of 50 per cent for general candidates and for candidates belonging to "Other Backward Classes" and 40 per cent for members of Scheduled Castes and Scheduled Tribes. Only when students in requisite number were not available, the said criterion was reduced to 40 and 30 per cent respectively. The small distinction in eligibility criteria can, by no stretch of imagination, be said to impinge upon the determination or coordination of standards in institutions of higher learning."

"23. There can be no doubt that the State may, if it feels necessary to do so, encourage the Backward classes by reserving seats at the undergraduate level for persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes. We have some reservation as to whether this policy of reservation can be extended to the postgraduate level. It was held in the case of Jagadish Saran Dr. v. Union of India :

"......We may here extract the Indian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration:

'Students for postgraduate training should be selected strictly on merit judged on the basts of academic record in the undergraduate course. All selection for Postgraduate studies should be conducted by the universities.'"

"24. The importance of merit being the only criterion for admission to Postgraduate medical courses viz. M.D., M.S. and the like was also emphasised in the case of Pradeep Jain (Dr.) v. Union of India .

"26. Before we part with this case, we may refer to another judgment of this Court in Mohan Bir Singh Chawala v. Punjab University , in which it was observed after a review of the case-law that "the higher you go, in any discipline, lesser should be the reservations of whatever kind."

The removal of qualifying requirement for Scheduled Castes, Scheduled Tribes and other Backward Class candidates was, thus, found impermissible. However, what is emphasised by Counsel is, what may be permissible for undergraduate courses will yet not be permissible for super-specialities such as Postgraduate courses. He has, therefore, laid stress on the observations contained in para 22 and 23 of the case of Dr. Jagdish Saran (supra) of the Supreme Court wherein it is inter alia held that best talent cannot be totally excluded from competing with the other candidates; that the reservations must be kept in check by demands of competence. One cannot extend shelter of reservation where minimum qualifications are absent. All the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage, which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the country for the sake of province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalisation when the Constitution mandates for every one equality before and equal protection of law, may be fatal folly, self-defeating educational technology and anti-national if made a routine rule of State policy. At the level of Ph.d., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. The Indian Medical Council has rightly emphasised that playing with merit for pampering local feeling will boomerang. Midgetry, where summitry is the desideratum, is a dangerous art. Students for Post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course....'.

47. Further reliance is placed on a decision of the Supreme Court in the case of D.N. Chanchala v. The State of Mysore and others, (supra) wherein it has been observed that the object of selection for admission to the Medical Colleges, considered in the background of the Directive Principles of State Policy contained in our Constitution, appears to be to select the best material from amongst the candidates in order not only to provide them with adequate means of livelihood, but also to provide the much needed medical aid to the people and to improve public health generally.

48. Reliance is placed on the case of Dr. Pradeep Jain and others v. Union of India and others, where a distinction is made in regard to merit criteria for undergraduate courses as compared to Postgraduate courses. In para 22 of the judgment it is provided, as under :

"22. So much for admission to the M.B.B.S. course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to the Post-graduate courses, such as, M.D., M.S. and the like. There we cannot allow excellent to be compromised by any other considerations because that would be detrimental to the interest of the nation. It was rightly pointed out by Krishna lyer, J., in Jagdish Saran case, and we wholly endorse what he has said:

The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of Ph. D., M.D. or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency. Here equality, measured by matching) excellence, has more meaning and cannot be diluted much without grave risk."

49. Reliance is also placed on a decision of this Court in the case of (Dr. (Mrs.) Mona Agarwal Subhashkumar Aggarwal v. Mahatma Gandhi Institute of Medical-Sciences, through its Dean, Sewagram District Wardha and others), which dealt with priorities being granted on the basis of rural service. In the decision, it has been observed, as under:

"9. As regards Shri Choudhary's first contention, also the position is no different. It will be seen that the priorities regarding the rural service as provided in the Rules would be applicable only if on merits the two candidates are on the same pedestal. This priority regarding the rural service cannot be used to by-pass the merit. If the petitioner and the respondent No. 3 had the equal marks in the subject of Gynaecology and Obstetrics, then and then alone the further priorities could be seen and in that case, the respondent No. 3, who was covered by category (i) of Rule 7 governing the Rules of Admission, could have been preferred to the present petitioner. But where the petitioner is clearly a better candidate having secured more marks in the subject of Gynaecology and Obstetrics, her case cannot be compared with the respondent No. 3, nor could her claim for the registration be denied on the ground that she was placed in category (iii) of Rule 7. This is a plain and apparent meaning of Rule 7. The argument of Shri Choudhary that if both the petitioners and the respondent No. 3 were eligible for being admitted, then the priorities as envisaged in Rule 7 must be honoured, is obviously incorrect. It is needless to say that merit is a first consideration for admission to these courses. The priorities in Rule 7 would work only if there is a question of comparison between the two candidates, which comparison could be only on the basis of merits. In the matter of merits, the petitioner being a better candidate her case is not comparable to the respondent No. 3 and, therefore, there is no question of the priorities being involved. We have also carefully seen the Rules for Admission. Rule No. 9 clearly provides the method of calculation to determine the comparative merit of the candidates. It is an admitted position that the Selection Committee here, after calculating the comparative merit, in keeping with Rule 9 of the Rules, has found the petitioner to be a better candidate in comparison to the respondent No. 3. The argument of Shri Choudhary, therefore, has to be rejected."

50. As against this, reliance is also placed on a decision of the Supreme Court in the case of Kumari Chitra Ghosh and another v. Union of India and others, wherein it is observed that, the Government which bears the financial burden of running the medical college is entitled to lay down the criteria for eligibility. The Government cannot be denied the right to decide from what sources the admission will be made as from the very nature of things it is not possible to throw the admission open to students from all over the country. From what sources the candidates are to be admitted is essentially a question of policy and that depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial geographical or other reasonable basis, it is not for the courts to interfere with the manner and method of making the classification.

51. We find an echo of the same reasoning in the case of D.N. Chanchala etc. v. The State of Mysore and others etc., (supra) wherein it has been observed that the object of selection for admission to the medical colleges, considered in the background of the Directive Principles of State Policy contained in our Constitution, appears to be to select the best material from amongst the candidates in order not only to provide them with adequate means of livelihood, but also to provide the much needed medical aid to the people and to improve public health generally.

52. The above decisions show that it is open to the State Government to prescribe additional conditions apart from the ones prescribed by the University or Medical Council of India for the purpose of granting admission to medical courses. In the case at hand, the additional condition imposed by the State Government is the requirement of the performance of medical service, the same, in our view, is fully justified.

53. Admissions, which are contemplated under the present Government Resolutions have laid down the requirement of medical service as a pre-requisrte for the purposes of admission. Those who have performed medical service have been put into one class. Admissions to candidates belonging to this class will be granted strictly according to their inter se merit. Hence, the merit criteria has been strictly maintained. As far as freshers, who have just passed their M.B.B.S. are concerned, they have not performed the medical service. They, therefore, are placed in a different class. Since they have not performed any medical service they cannot be treated at par with those who have performed medical service. Even this category of candidates have not been totally excluded. They will be considered after the claim of those who have performed medical service is considered. In the circumstances, we find that the impugned Government Resolutions cannot be successfully assailed as it is found that it is open to the State Government to impose additional conditions. The State Government expends large amounts towards medical education which is far above the amounts recovered towards fees. The State Government is, therefore, entitled to call upon the beneficiary of the expenditure viz. the doctors to perform medical service since the doctors have benefited from the medical education provided by the State, it is their duty to perform medical service. The State Government is duty bound to provide for medical facility in order to promote public health. The State Government is entitled to ensure public health and welfare as much in rural areas as in urban. Calling upon the doctors to perform rural service, therefore, is fully justified. Similarly, The State Government is justified in relaxing the condition of one years medical service in order to ensure that the Postgraduate medical seats, in the ensuing Postgraduate course commencing from January, 1998, do not go a waste. The State Government is, therefore, justified in taking steps to ensure that additional seats which have now become available from the colleges run by the Bombay Municipal Corporation do not go a waste. Once it is found that the State is justified in relaxing the condition of one year medical service no fault can be found when it has decided to club the candidates who have completed one year medical service with those who have done less than one year medical service. It is only on this basis that the merit criteria can be adhered to. Similarly, the candidates who had not earlier been selected but have all. the same performed medical service have also been clubbed in this category of candidates. The laid category would ordinarily pose no threat to the prospects of those who have been provisionally selected as they would ordinarily be more meritorious than the ones who had not been selected. Since they have also performed medical service, their inclusion in this category cannot be faulted. As far as the freshers are concerned, they form themselves into a distinct category viz. the category of candidates who have performed 'no medical service'. They form an independent category and have been rightly placed in a distinct category. The object behind the additional condition of performing medical service is to provide medical health and care throughout the State. This is sought to be achieved both at the urban and rural areas. Hence, categorising the candidates who have performed medical service distinct from the candidates who have not performed medical service is justified. The rule, which require one year medical service, is a valid rule. It has a rational nexus to the object sought to be achieved and hence there is no violation of the principles of equality enunciated under Article 14 of the Constitution. The candidates who have performed medical service are equals and form part of one class and the candidates who have not performed medical service form part of a distinct class and this classification has justification to the object to be achieved, of providing medical health care by the State Government. In the circumstances, we hold that the Resolutions under which admissions to the postgraduate medical courses will now be granted viz. the Government Resolutions dated 28th February, 1996, 3rd March, 1997, 19th July, 1997, 22nd October, 1997, 19th January, 1998 and the clarification issued vide Government Resolution dated 6th February, 1998, are in order. The State Government will, therefore, be entitled to grant registration on the basis of the aforesaid resolutions.

54. Rule in the aforesaid petitions are accordingly disposed of in the aforesaid terms. No orders as to costs.