Kerala High Court
Dr.Saji.I.K vs State Of Kerala on 10 March, 2014
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 6TH DAY OF JUNE 2014/16TH JYAISHTA, 1936
WP(C).No. 5818 of 2014 (B)
---------------------------
PETITIONER:
----------------------
DR.SAJI.I.K.,AGED 42 YEARS,
S/O.KITTA, INDEEVARAM, WEST NADA,
KODUNGALLUR, NOW WORKING AS JUNIOR CONSULTANT (ORTHO),
TALUK HEAD QUARTERS, KODUNGALLUR.
BY SRI.RENJITH THAMPAN,SENIOR ADVOCATE
ADV. SMT.P.R.REENA
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM.
2. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM.
*ADDL.R3 TO R6 IMPLEADED:
R3. DR.GEORGE K.A., AGED 42 YEARS,
S/O.AUGUSTINE K.J., KATTITHARA HOUSE,
EAST OF AROOR CHURCH, AROOR PO,
ALAPPUZHA DISTRICT, PIN - 688 534,
NOW WORKING AS CIVIL SURGEON, COMMUNITY HEALTH
CENTRE, KURATHIKAD, MAVELIKARA TALUK,
ALAPPUZHA DISTRICT.
R4. DR.RUBY,AGED 43 YEARS,
S/O.N.S.RAJAPPAN, KRISHNA GAYATHRI,
C.M.C. 28/588, NEAR MANORAMA JUNCTION,
CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688 524,
NOW WORKING AS CIVIL SURGEON, TALUL HOSPITAL,
THURAVUR.
R5. DR.JAYA MARY, AGED 46 YEARS,
W/O.DR. MANIKANTAN.J.,
MANIKANTA SADANAM,
PUNUKANNOOR, PERUMPUZHA P O,
KERLAPURAM, KOLLAM DISTRICT,
PIN - 691 504, NOW WORKING AS ASSISTANT
INSURANCE MEDICAL OFFICER,
ESI DISPENSARY,KOTTARAKARA.
Kss ..2/-
..2....
WPC.NO.5818/2014 (B)
R6. DR.V.SHREEKALA,
AGED 48 YEARS, W/O.DR.SURESH,
NANDANAM, CHOTAYIL,
KILIMANOOR PO,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 601,
NOW WORKING AS INSURANCE MEDICAL OFFICER,
ESI DISPENSARY,SADANANDAPURAM,
KOLLAM DISTRICT.
*ADDL.R3 TO R6 ARE IMPLEADED AS PER ORDER DATED 10/03/2014
IN I.A.NO.3749/2014.
**ADDL.R7 TO R14 IMPLEADED:
R7. DR.ASHA K.JOHN,
AGED 46 YEARS, W/O.DR. JOS GOODWILL,
RESIDING AT KATTUPARAMBIL HOUSE,
EDAVANAKAD, ERNAKULAM - 682 502.
R8. DR.CHERIYAN J.VITHAYATHIL,
AGED 46 YEARS,
S/O.V.J.JOHN,
RESIDING AT M - 126, CHANGAMPUZHA NAGAR,
KALAMASSERY, ERNAKULAM- 682 033.
R9. DR.SURESH M.,
S/O. CHANDRASEKHARA KURUP,
AGED 46 YEARS, ASSISTANT SURGEON,
C.H.C., OLAVANNA, KOZHIKODE, RESIDING AT
KINATTINKARA HOUSE, NELLIKKODE, KOZHIKODE - 16.
R10. DR.JEEVA GOPALAN K.M.,AGED 42,
ASST.SURGEON, PHC EDAKKAD, W/O.VINOD KUMAR,
KANNUR DISTRICT, SREEPADAM, NEAR KOTTACHERI
PETROL PUMP, P.O. THANA, KANNUR - 12.
R11. DR.DEEPA K.A.,
W/O. DR. SURESH, AGED 42 YEARS,
ASST.SURGEON PHC, PERUMANNA, KOZHIKODE,
RESIDING AT KINATTINKARA HOUSE,
NELLIKKODE, KOZHIKODE - 16.
R12. DR.FLEMY JOSE, AGED 47 YEARS,
W/O.DR.JOY, CHIRIANKADATH, POONTHOL,
THRISSUR DISTRICT, PIN - 680 004, NOW WORKING
AS A SUPERINTENDENT, TALUK HEADQUARTERS
HOSPITAL AT PATTAMBI, PALAKKAD DISTRICT,
PIN - 679 303.
Kss ..3/-
...3....
WPC.NO.5818/2014 (B)
R13. DR.SHEEBA T. JOSEPH,
THENGUMPATTIL HOUSE,
GOLDEN ENCLAVE,
CHEVAYOOR, KOZHIKODE.
R14. DR.MANJUSHA S.,
W/O.HARI KRISHNA.A., AED 44 YEARS,
ASSISTANT SURGEON, TALUK HOSPITAL, FORT,
THIRUVANANTHAPURAM, RESIDING AT 'SARAS',
T.C.NO.36/1039, KAIRALI NAGAR - 16,
ENCHAKKAL, VALLAKADAVU PO,
THIRUVANANTHAPURAM - 695 008.
**ADDL.R7 TO R14 ARE IMPLEADED AS PER ORDER DATED 24/03/2014
IN I.A.NO.4373/2014, 4450/2014, 4537/2014, 4599/2014 AND 4635/2014
RESPECTIVELY.
R1 & R2 BY SR. GOVERNMENT PLEADER SRI.ROSHAN D.ALEXANDER
R3 TO R6 BY ADVS.SRI.C.S.MANU
SRI.S.K.PREMRAJ
R7 & R8 BY ADVS.SRI.T.B.HOOD
SMT.M.ISHA
R9,R10 &R11 BY SRI.T.KRISHNANUNNI,SENIOR ADVOCATE
ADV. SRI.SAJU.S.A.
R12 BY ADVS. SRI.M.B.SANDEEP
ADV. SMT.R.PRIYA
SMT.B.DHANYA
SRI.V.VISAL AJAYAN
R13 BY SRI.V.V.ASOKAN,SENIOR ADVOCATE
ADVS. SRI.K.I.MAYANKUTTY MATHER
SRI.RAHUL.P.
R14 BY ADV. SMT.SREEDEVI KYLASANATH
SMT.V.RENJU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-06-2014,ALONG WITH WP(C)NO.5858 OF 2014 AND CONNECTED
CASES, THE COURT ON 06/06/2014 DELIVERED THE FOLLOWING:
Kss
WP(C).No. 5818 of 2014 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1. COPY OF THE RELEVANT PORTION OF NOTIFICATION DATED
27.12.2010 OF MEDICAL COUNCIL OF INDIA PUBLISHED IN THE GAZETTE OF
INDIA IN ENGLISH AND HINDI.
EXHIBIT P2. COPY OF THE RELEVANT PORTION OF BULLETIN ISSUED BY THE
NATIONAL BOARD OF EXAMINATION FOR ALL INDIA POST GRADUATE MEDICAL
ENTRANCE EXAMINATION 2014.
EXHIBIT P3. COPY OF THE ADMIT CARD ISSUED TO THE PETITIONER FOR THE
ALL INDIA POSTGRADUATE ENTRANCE EXAMINATION.
EXHIBIT P4. COPY OF THE RESULTS OF ALL INDIA POSTGRADUATE MEDICAL
ENTRANCE EXAMINATION AS REGARDS THE PETITIONER.
EXHIBIT P5. COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT
REPORTED 2003(8) SCC 69.
EXHIBIT P6. COPY OF THE GOVERNMENT ORDER ALONG WITH THE RELEVANT
PORTION OF THE PROSPECTUS.
EXHIBIT P7. COPY OF THE GO(RT)NO.836/2014/H&FWD DATED 10/03/2014.
RESPONDENT(S)' EXHIBITS:
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EXHIBIT R1(A): COPY OF THE PGME (AMENDMENT) REGULATIONS, 2010 (PART
II) PUBLISHED BY NOTIFICATION NO.MCI.18(1)/2010-MED/49070 DATED
21/12/2010.
EXHIBIT R1(B):COPY OF THE PGME (AMENDMENT) REGULATIONS, 2012 (PART I)
PUBLISHED BY NOTIFICATION NO.MCI.18(1)/2010-med/62052 dated 15/02/2012.
EXHIBIT R1(C):COPY OF THE RECORD OF PROCEEDINGS DATED 23/10/2013 IN
RP(C) NO.2159-2268/2013.
/TRUE COPY/
P.A.TO JUDGE
Kss
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.Nos.5818 of 2014, 5858 of 2014,
5928 of 2014, 6409 of 2014, 6746 of 2014,
7300 of 2014, 7615 of 2014 & 7735 of 2014
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Dated this the 6th day of June 2014
J U D G M E N T
All these writ petitions are filed by Doctors who are in the service of Government in various departments. They challenge the prospectus for admission to Medical Post Graduate Degree/Diploma Course, 2014 issued by the Director of Medical Education to the extent it makes provision for reducing the qualifying criteria for service quota candidates in the All India Post Graduate Medical Entrance Examination 2014 (for short `AIPGMEE 2014'). The impugned clause, which is under challenge, reads as under:
"4-4.1 In order to have the optimum utilization of Service Quota seats and to tide over the dearth of specialists in Health Services Department, the qualifying criteria for Service Quota candidates in AIPGMEE 2014 is fixed as follows:
W.P.C.Nos.5858/2014 & conn.cases 2
Sl.No. Category Passing criteria
1 General 45 Percentage
2 SC/ST/SEBC 35 Percentage
3 PD 40 Percentage
2. The facts involved in the writ petition would disclose that pursuant to the directions issued by the Supreme Court in Christian Medical College, Velloor v. Union of India and Others [2014(2) SCC 305] by which notification described as Postgraduate Medical Education (Amendment) Regulations, 2010 (hereinafter referred as '2010 Regulations') to effect amendment to Postgraduate Medical Education Regulations, 2000 (hereinafter referred as '2000 Regulations'), by the Medical Council of India (for short `MCI') directing National Eligibility Common Entrance Test (for short `NEET') to be conducted on an all India basis for Postgraduate (PG) admissions, along with certain other notifications relating to MBBS, BDS and MDS courses were declared to be ultra vires the Constitution. Paragraphs 177 and 178 of C.M.C Velloor (supra) reads as under: W.P.C.Nos.5858/2014 & conn.cases 3
"177. In the light of our aforesaid discussions and the views expressed in the various decisions cited, we have no hesitation in holding that the Regulations on Graduate Medical Education (Amendment), 2010 (Part II) and the Postgraduate Medical Education (Amendment) Regulation, 2010 (Part II), whereby the Medical Council of India introduced the single National Eligibility-cum- Entrance Test and the corresponding amendments in the Dentists Act, 1948, are ultra vires the provisions of Articles 19(1)(g), 25, 26(a), 29(1) and 30(1) of the Constitution, since they have the effect of denuding the States, State-run universities and all medical colleges and institutions, including those enjoying the protection of the above provisions, from admitting students to their MBBS, BDS and postgraduate courses, according to their own procedures, beliefs and dispensations, which has been found by this Court in T.M.A. Pai Foundation case, to be an integral facet of the right to administer. In our view, the role attributed to and the powers conferred on MCI and DCI under the provisions of the Indian Medical Council Act, 1956, and the Dentists Act, 1948, do not contemplate W.P.C.Nos.5858/2014 & conn.cases 4 anything different and are restricted to laying down standards which are uniformly applicable to all medical colleges and institutions in India to ensure the excellence of medical education in India. The role assigned to MCI under Sections 10-A and 19-A (1) of the 1956 Act vindicates such a conclusion.
178. As an offshoot of the above, we also have no hesitation in holding that the Medical Council of India is not empowered under the 1956 Act to actually conduct NEET."
3. In the light of the above scenario, Central Government entrusted National Board of Examinations (for short `NBE') to conduct the test for admission to Post Graduate Medical Courses for the year 2014 and the instructions issued is in terms of a bulletin. The State Government also adopted the said examination by Government order dated 01/11/2013 declaring that admissions to Medical Post Graduate Courses in the State for 2014 will be on the basis of the examination conducted by NBE. It was also indicated that PG Medical/Dental aspirant candidates from the State shall participate in the W.P.C.Nos.5858/2014 & conn.cases 5 examination and obtain minimum eligibility marks as prescribed for getting admission to PG Medical/Dental courses. The Commissioner of Entrance Examinations also issued notification on 05/11/2013 in that regard, wherein candidates were called upon to obtain minimum eligibility marks as "prescribed". After conducting the requisite test, NBE published results on 01/02/2014. The prospectus for the year 2014 was approved as per Government Order dated 18/02/2014.
4. Clause 4-4 of the prospectus refers to qualifying criteria which indicates that all candidates have to qualify the AIPMGEE 2014 for admission. To be eligible for admission in any PG course in 2014, it shall be necessary for the candidate to obtain 50% and above. Therefore, the passing criteria for general category was prescribed as 50%, for SC/ST/SEBC as 40% and Physically Disabled (PD) at 45%. The contention of the petitioners is that when 50% is the eligibility marks prescribed for passing examination for W.P.C.Nos.5858/2014 & conn.cases 6 general category, a reduction in the qualifying criteria is made with reference to in service candidates in terms of clause 4-4.1. Their passing criteria for general category is 45%, for SC/ST/SEBC it is 35% and for PD it is 40%.
5. According to the petitioners, reducing the qualifying criteria from 50% to 45% in respect of service quota candidates have affected their avenues for admission in so far as the admissions are based on seniority of the candidates depending upon their service, as more persons senior to them will enter the field and those persons who had obtained 50% marks will not get an opportunity for admission.
6. Petitioners have raised the following contentions in order to challenge the aforesaid clause in the prospectus.
i) The Bulletin published by NBE clearly prescribes the eligibility marks in the qualifying examination as 50%.
Central Government has approved the same and therefore State Government has no power to issue prospectus diluting W.P.C.Nos.5858/2014 & conn.cases 7 the eligibility criteria and reducing the qualifying marks in the entrance examination.
ii) When 2010 Regulations is declared unconstitutional by the Supreme Court, the earlier position revives, which inter alia prescribes 50% marks for the entrance examination.
iii) State Government has no power to legislate on the subject having effect of lowering any standards prescribed by MCI and the said clause in the prospectus is unreasonable.
iv) Though the State Government has enacted the Kerala Medical Officers' Admission to Post Graduate Courses under Service Quota Act, 2008 (hereinafter referred to as the 'Service Quota Act') in so far as no rules have been framed in terms with the procedure prescribed under sub sections (1) and (2) of section 5 of the Act, it is not open for the Government to incorporate an eligibility criteria less than what is prescribed for members of general category. W.P.C.Nos.5858/2014 & conn.cases 8
v) In the absence of any such rules governing the field, the State has no executive power to incorporate such a provision in the prospectus as such a power is not available to the State Government under Article 162 of the Constitution of India especially in the light of the statutory provision under Section 25(vi) of the Kerala University of Health Sciences Act, 2010 (hereinafter referred as `the KUHS Act').
7. Counter affidavit is filed by the State Government supporting the stand taken by them. It is inter alia contended that Section 5(3) of the Act clearly permits the Government to provide details for eligibility to admission, duration of course, allotment, fee to be paid, reservation of seats etc. in the prospectus before commencement of admission. In the absence of a Central legislation coming under Entry 66 of List I of the 7th Schedule to the Constitution of India, the State Government has the legislative competence to enact the Service Quota Act and when the W.P.C.Nos.5858/2014 & conn.cases 9 Statute clearly prescribes the authority of the Government to prescribe an eligibility criteria for candidates in Government service, the prospectus has been issued well within the powers of the Government.
8. It is further contended that the 2000 Regulations was amended by virtue of 2010 Regulations and the MCI introduced NEET wherein eligibility criteria was fixed for different categories of candidates. The amendment was effected by substituting Clause 9. It again underwent amendment by introduction of 2012 Regulations. The Supreme Court formed an opinion that the power conferred on MCI under the provisions of the Indian Medical Council Act, 1956 do not contemplate anything different and are restricted to laying down standards which are uniformly applicable to all Medical Colleges and institutions in India to ensure the excellence of medical education in India. It was therefore held that MCI cannot conduct NEET. It is contended that the notification making certain relaxation in W.P.C.Nos.5858/2014 & conn.cases 10 the eligibility criteria of the service candidates were issued taking into account the acute dearth of qualified service quota candidates for admission to Post Graduate Medical Service. Therefore a policy decision had to be taken to incorporate Clause 4-4.1 in the prospectus for service quota candidates alone.
9. Learned senior counsel Sri. Kurian George Kannanthanam appearing for the petitioners, first contended that the State Government has no authority to issue the impugned clause in the prospectus as the power to frame law with reference to admission to post graduate course in medical education is with the Central Government in terms of Entry 66 of List I. In so far as already regulations have been framed by MCI and though the amended regulations have been declared to be unconstitutional by the Supreme Court, Union of India, having insisted for 50% marks in the qualifying examination to be the minimum requirement for eligibility, when the field is occupied by the Central W.P.C.Nos.5858/2014 & conn.cases 11 Legislation, it is not open for the State Government to have issued a prospectus. Reference is also made to a Division Bench of this Court in Mohammed Riaz v. State of Kerala [2011 (2) KLT 294] in which it is held that having regard to Entry 25 of List III and Entry 66 of List I, State has the right to control education, including medical education so long as the field is not occupied by any Union legislation and while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union under Entry 66 of List I. It is further held that though State can make rules for admission, they have to be consistent with and without adversely affecting the standards of education, as are prescribed by the Union in exercise of powers under Entry 66 of List I. It is also held that though there could be a separate and exclusive channel of entry or source of admission for in-service candidates, there has to be only one common entrance test for determining W.P.C.Nos.5858/2014 & conn.cases 12 the eligibility for post graduation for in-service candidates and those not in service. The prescription as to the requirement of an entrance examination with a minimum eligibility bench mark to be acquired in that entrance test for postgraduate medical education is within the field covered by Entry 66 in List I and the competence of the State Legislature to make a law with reference to Entry 25 in List III would not enable it to make any such law encroaching on the field occupied by Entry 66 in List I.
10. It is further argued that the State Government, having accepted the examination conducted by NBE in terms of Ext.P1 which prescribes 50% qualification for general category, there was no reason to make any amendments to the same in the form of a prospectus. It is contended that the prospectus has been issued after the marks were published by NBE and therefore it is only for helping certain persons in service that such a relaxation is made. The prospectus was issued only on 18/02/2014 when the marks W.P.C.Nos.5858/2014 & conn.cases 13 were published on 01/02/2014.
11. With reference to the Service Quota Act, it is contended that Section 5(3) only gives power to the Government to issue the details of eligibility in the prospectus and does not enable the Government to prescribe the eligibility criteria as no rules have been framed in terms of Section 5(1) and 5(2) of the Act.
12. It is further argued that in the absence of any statutory provision, Government cannot invoke Article 162 of the Constitution of India. The argument is that the KUHS Act has been enacted by the Government which gives power to the University under Section 25(vi) of the Act to prescribe minimum eligibility criteria for all admissions. When the Statute gives power to an authority for prescribing the eligibility for admissions to various courses which includes PG medical courses, it was not open for the Government to invoke Article 162 of the Constitution of India. Learned Senior Counsel relied upon the judgment of the Supreme W.P.C.Nos.5858/2014 & conn.cases 14 Court in P.H. Paul Manoj Pandian v. P. Veldurai, [(2011) 5 SCC 214]. Reference is made to paragraphs 46 and 47 which reads as under:
"46. Under Article 162 of the Constitution, the executive power of the State extends to matters with respect to which the State Legislature has power to make laws. Yet the limitations on the exercise of such executive power by the Government are twofold; first, if any Act or law has been made by the State Legislature conferring any function on any other authority, in that case the Governor is not empowered to make any order in regard to that matter in exercise of his executive power nor can the Governor exercise such power in regard to that matter through officers subordinate to him. Secondly, the vesting in the Governor with the executive power of the State Government does not create any embargo for the legislature of the State from making and/or enacting any law conferring functions on any authority subordinate to the Governor.
47. Once a law occupies the field, it will not be open to the State Government in exercise of its W.P.C.Nos.5858/2014 & conn.cases 15 executive power under Article 162 of the Constitution to prescribe in the same field by an executive order. However, it is well recognised that in matters relating to a particular subject in absence of any parliamentary legislation on the said subject, the State Government has the jurisdiction to act and to make executive orders. The executive power of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. But, such orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the appropriate legislature. Subject to these limitations, such rules or orders may relate to matters of policy, may make classification and may determine the conditions of eligibility for receiving any advantage, privilege or aid from the State."
13. Learned senior counsel Sri.Ranjith Thampan specifically relied on the judgment in Harish Verma v. Ajay Srivastava [(2003) 8 SCC 69] wherein it is held that though in-service candidates formulate a class by themselves for whom a separate channel of entry has been carved out and W.P.C.Nos.5858/2014 & conn.cases 16 within the group there may be scope for assigning weightage for the rural service rendered, for the purpose of determining the order of merit inter se, the condition as to minimum qualifying marks as prescribed by the Medical Council of India cannot be relaxed. It is further argued that clause 4-4.1 of the prospectus is totally unreasonable as there is no dearth of candidates who become qualified in the examination. It is pointed out that out of the 51 seats in Post Graduation and 40 seats in Diploma course, there are more than 200 service quota candidates who were qualified and having more than 50%.
14. The learned counsel Sri.P.K.Vijayamohanan and Sri.Salim P.A. reiterated the arguments of the senior counsels.
15. The learned senior Government Pleader, Sri.Roshen D.Alexander argued that the State has the legislative competence to enact a special Statute for the service candidates under Entry 25 of List 3. The validity of the Act W.P.C.Nos.5858/2014 & conn.cases 17 has not been challenged in any manner and by virtue of Section 5(3) of the Act, the State Government is entitled to publish prospectus showing the eligibility criteria of candidates in service quota. 40% seats of PG Medical courses is reserved for candidates from State Government service and among which it is possible for the Government to prescribe an eligibility criteria. The guidelines issued by NBE for the 2014 examination is not a legislation in terms of Entry 66 of List 1 and in that event, since the field is not occupied by any Statute of the Central Government, it is open for the State Government to prescribe eligibility criteria for the service candidates. Reference is also made to the order issued by the Government proposing to treat the examination conducted by NBE as a qualification examination for Degree as well as post graduate medical admission. But it is made clear that the said examination will be subject to the State's power to fix admission as well as eligibility criteria. Reference is made to the Constitution W.P.C.Nos.5858/2014 & conn.cases 18 Bench judgment in Dr.Preeti Srivastava v. Union of India [1999(7) SCC 120] in which a portion of paragraph 35 reads as under:
"Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also W.P.C.Nos.5858/2014 & conn.cases 19 necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254."
16. It is further argued that there is no unreasonableness in the decision taken by the Government to reduce the eligibility marks for service candidates. The said decision has been taken after elaborate discussions and taking into consideration the requirement of specialized Doctors in the State. As far as the contention regarding violation of Article 162 of the Constitution of India, it is argued that when a specific Statute is promulgated by the State under Entry 25 of List III and it has received the assent of the President of India under Article 254(2) of the Constitution, and when the power to issue prospectus is made by virtue of the power vested under the said Statute, it is not open for the petitioners to contend that the Government has no power. Invocation of Article 162 arises W.P.C.Nos.5858/2014 & conn.cases 20 only if no such power is available with the Government.
17. Adv.Sri.Hood T.B, the learned counsel appearing for one of the impleading applicants who supports the State, relies upon paragraphs 52 and 53 of the Srivastava's case (supra) in order to substantiate the legislative competence of the State Government in issuing the prospectus. Paragraphs 52 and 53 reads as under:
52. Mr Salve, learned counsel appearing for the Medical Council of India has, therefore, rightly submitted that under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of postgraduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed regulations which govern postgraduate medical education.
These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. Since the W.P.C.Nos.5858/2014 & conn.cases 21 standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I.
53. Secondly, it is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the Concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List III will also be subject to any existing relevant provisions made in that connection by the Union Government subject, of course, to Article 254.
18. Further reference is made to the judgment in Sourav Chowdhary v. Union of India [(2003) 11 SCC 146] to contend that when a subordinate legislation is repealed, the previous law does not survive and the entire legislation fails. It is also contended that in so far as there is no regulation made by MCI prescribing an eligibility criteria for candidates and the eligibility criteria has only been fixed by NBE which is not under any Statute, it is possible for the W.P.C.Nos.5858/2014 & conn.cases 22 Government to fix the eligibility marks. It is further argued that the judgment in Mohammed Riaz (supra) is based on a factual situation when MCI Regulations were in force, whereas as matters stand now, the MCI Regulations stand repealed by virtue of the judgment in CMC Velloor (supra). Learned counsel also relied upon the Constitution Bench judgment of the Supreme Court in Firm A.T.B. Mehtab Majid and Co. v. State of Madras [(1963) Supp (2) SCR 435] [AIR 1963 SC 928] in which paragraph 20 reads as under:
"20. It has been urged for the respondent that if the impugned Rule be held to be invalid, old Rule 16 gets revived and that the tax assessed on the petitioner will be good. We do not agree. Once the old Rule has been substituted the new Rule, it ceases to exist and it does not automatically get revived when the new Rule is held to be invalid."
Reference is also made to the judgment in Zile Singh v. State of Haryana, [(2004) 8 SCC 1) wherein it is held that the process of substitution consists of two steps: first, the old W.P.C.Nos.5858/2014 & conn.cases 23 rule is made to cease to exist and, next, the new rule is brought into existence in its place.
19. Sri.Titus Mani, learned counsel appearing for MCI, in a few cases supports the stand of the petitioners by contending that when the amendment to the 2000 Regulations has been declared to be illegal by the Supreme Court in CMC Velloor case (supra), the previous 2000 Regulations comes into force and therefore State Government cannot reduce the eligibility criteria for one category of candidates and a uniform mark is required for general category which includes persons from service as well. Learned counsel relied upon judgment of the Supreme Court in Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation, [(2011) 5 SCC 435] wherein it was held that "once the old rule has been substituted by the new rule, it stands obliterated, thus ceases to exist and under no circumstance can it be revived in case the new rule is held to be invalid and struck down by W.P.C.Nos.5858/2014 & conn.cases 24 the Court, though the position would be different in case a statutory amendment by the legislature is held to be bad for want of legislative competence. In that situation, the repealed statutory provisions would revive automatically." Learned counsel also relied upon paragraphs 49 and 51 of Preeti Srivastava's case (supra) in order to substantiate his contentions regarding the legislative competence of the Central Government to enact laws with reference to post graduate medical courses.
20. Having regard to the arguments raised by the learned counsel appearing for the petitioners as well as the respondents, the following issues arise for consideration.
i) The effect of CMC Velloor case (supra) on the Regulations framed by MCI.
ii) Whether there is any legislation which occupies the field of prescribing eligibility marks for PG Medical admission, enacted under Entry 66 of List 1 of the Constitution of India.
W.P.C.Nos.5858/2014 & conn.cases 25
iii) Legislative competence of the State Government to prescribe eligibility marks for service candidates as against the marks prescribed for candidates coming under general category.
iv) Whether Section 5(3) of the Act enables the Government to issue the prospectus with the impugned clause at 4-4.1.
v) Whether the impugned clause at 4-4.1 can be saved under Article 162 of the Constitution of India in the light of existence of Section 25(vi) of the KUHS Act.
21. For easy reference, I am referring to the documents as exhibited in W.P.C.No.5858 of 2014.
22. Ext.P1 is the information bulletin for AIPGMEE 2014. This bulletin indicates that the examination is for admission to 50% MD/MS/Diploma courses seats. It is further indicated that the Government of India established NBE in 1975 with the object of improving quality of medical education. NBE has been notified by Ministry of Health and W.P.C.Nos.5858/2014 & conn.cases 26 Family Welfare, Government of India to conduct competitive entrance examination on all India basis for admission to All India 50% quota. It further states that the examination will be governed by the rules and regulations specified by the Government of India, MoH and FW/Directorate General, Health Services and orders of Hon'ble Court.
23. No doubt, as per Ext.P1 notification, a candidate concerned should acquire 50% marks in the competitive examination for a pass and qualification for allotment. None has a case that Ext.P1 has the force of law and is a legislation in terms of Entry 66 of List 1 of the Constitution of India.
24. One of the contentions urged is that in CMC Velloor Case (supra), the Supreme court has only declared the 2010 Regulations for post graduate admission as unconstitutional which prescribes a common entrance examination NEET. One of the arguments is that though 2010 Regulations have been declared to be void, 2000 W.P.C.Nos.5858/2014 & conn.cases 27 Regulations as well as 2012 Regulations still survive. Though in Joint Action Committee of Air Line Pilots' Assn. of India case (supra) it is held that in case a statutory amendment by the legislature is held to be bad for want of legislative competence, the repealed statutory provisions would revive automatically. The said statement of law will not apply to subordinate legislation and too when by virtue of 2010 Regulations the previous provision was substituted. The position of law is clear from the Constitution Bench judgment in Firm A.T.B. Mehtab Majid and Co. (supra) wherein it is held that once the old Rule has been substituted with a new Rule, it ceases to exist and it does not automatically get revived when the new Rule is held to be invalid. Zile Singh (supra) also deals with a similar situation and it is held that substitution of a provision results in repeal of the earlier provision and its replacement by the new provision.
W.P.C.Nos.5858/2014 & conn.cases 28
25. Therefore, when Regulation 9 of 2010 Regulations is declared as ultra vires the Constitution in CMC Velloor case (supra), clause 9 of 2000 Regulations will not survive. 2012 Regulations only makes some changes to 2010 Regulations and the same also will not survive. Therefore, as matters stand now, there is no regulation, rule or statutory provision which enables the petitioners to contend that fixation of eligibility marks for the P.G Medical Entrance Examination is covered by any legislation under Entry 66 of List 1 of the Constitution of India.
26. When there is no such Statute or subordinate legislation with reference to fixation of eligibility marks, it is not in dispute that by issuing the prospectus, State Government had treated the examination conducted by NBE as the qualifying examination for P.G/Diploma courses. While so, a prospectus is issued by the Government which, according to them, is in terms of Section 5(3) of the Service Quota Act. The first issue to be considered is whether while W.P.C.Nos.5858/2014 & conn.cases 29 issuing the prospectus under Section 5(3) of the Act, the Government can fix an eligibility criteria different from what is prescribed by NBE. As far as general open category is concerned, State Government has adopted the eligibility marks as 50%. In respect of service candidates, the eligibility marks is reduced to 45%. It is not in dispute that as held in Preeti Srivastava's case (supra) if the field is not occupied by any Central legislation, the Government can bring in legislation under Entry 25 of List III. It is well settled that both the Union as well as the States have the power to legislate on education including medical education, subject, of course to Entry 66 of List I, which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also co-ordination of such standards. It is also held that State has the right to control education including medical education so long as the field is not occupied by any Union legislation and while controlling education in the State, it cannot impinge on W.P.C.Nos.5858/2014 & conn.cases 30 standards in institutions for higher education as it is exclusively within the purview of the Union Government. While prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Union can legislate on admission criteria also and in that event, the State will not be able to legislate in this field, except as provided in Article
254. The vires of the Service Quota Act is not in dispute and it is a legislation which has received the assent of the President of India under Article 254(2) of the Constitution. The contention of the petitioners is that Clause 5(3) does not enable the Government to reduce the qualification criteria contrary to what is stated for general/open categories and they seek support of the judgment of this court in Mohammed Riaz (supra). Section 5 of Service Quota Act reads as under:
"5. Procedure for selection:-
(1) The Government may set apart seats W.P.C.Nos.5858/2014 & conn.cases 31 not exceeding forty percent of the total seats available to State quota in an academic year, for selection of Medical Officers under service quota considering their service under the Government for admission to Post Graduate Medical Courses in the Medical Colleges of the State in such manner as may be prescribed.
(2) The academic qualification for admission to the Post Graduate Course shall be M.B.B.S degree with minimum fifty percent marks and the other qualifications shall be such as may be prescribed.
(3) The details of eligibility for admission, the duration of courses, allotment, fee to be paid, reservations of seats and such other details shall be published every year in the prospectus before the commencement of admission.
(4)The Postgraduate Course Selection Committee shall finalise the selection list strictly based on the seniority in service of the Medical Officers and following such other criteria as may be prescribed.
(5) The selection list finalised under sub-
section (4) shall be published by the Post W.P.C.Nos.5858/2014 & conn.cases 32 Graduate Course Selection Committee for the information of the applicants."
27. It is not in dispute that Sections 5(1) and 5(2) clearly indicates that such a procedure has to be adopted as prescribed by the Rules. Though Rules have been framed, the same does not provide for a provision which enables the Government to reduce the eligibility criteria. Section 5(3) however indicates that the details of eligibility for admission among other matters shall be published in the prospectus before commencement of admission. In fact, Section 5(1) and 5(2) by itself cannot be read as foreclosing the right of the Government to invoke Section 5(3) to mention details of eligibility for admission, which apparently includes the eligibility in the examination, which is conducted in addition to the qualifications prescribed under the Rules framed pursuant to sections 5(1) and 5(2). A perusal of Exts.P2 and P3 indicates that the Government had only adopted the examination conducted by NBE for the purpose of allotment of seats in the State as well, since the Government did not W.P.C.Nos.5858/2014 & conn.cases 33 conduct any separate examination. True that, NBE had fixed 50% minimum marks for the eligibility examination which is adopted by the Government for general category candidates as well. But it was clearly indicated in Exts.P2 and P3 that the admission procedure will be in accordance with the prospectus issued by the Government. When specific power is conferred on the Government in terms of Section 5(3) to mention eligibility details in the prospectus, as far as service quota candidates are concerned, it cannot be contended that in the absence of framing rules as provided under sections 5(1) and 5(2), the Government has no right to fix a different eligibility criteria for service candidates. In Mohammed Riaz (supra), this court, while considering the vires of section 5(4) of the Service Quota Act, held as under:
"In a State where there are more universities than one, the appropriate provision of Regulation 9(2) would apply. The principles of law emanating from the above include that the prescription as to the W.P.C.Nos.5858/2014 & conn.cases 34 requirement of an entrance examination with a minimum eligibility bench mark to be acquired in that entrance test for postgraduate medical education is within the field covered by Entry 66 in List I and the competence of the State Legislature to make a law with reference to Entry 25 in List III would not enable it to make any such law encroaching on the field occupied by Entry 66 in List I. The M.C.I. Regulations framed under S.33 of the IMC Act is insulated from any contradiction by any State legislation. Therefore, the State cannot make a law doing away with the requirement, for in-service candidates, to participate in the common entrance test for admission to postgraduate medical courses and obtaining the minimum eligibility requirement prescribed by the M.C.I. in the Regulations.
The conclusion is that the provision in S.5(4) of the State Act that the select list of in-service medical officers for postgraduate medical education shall be strictly on the basis of seniority is subject to the requirement that such selection can be made only from among those in-service medical officers who have undergone the common entrance test W.P.C.Nos.5858/2014 & conn.cases 35 for postgraduate medical education and have obtained the minimum eligibility bench mark in that test in terms of the M.C.I. Regulations."
The above proposition of law, of course, applies only when clause 9(2) of 2000 Regulations was in force. The present situation is that MCI Regulations are not in force and therefore the said judgment has no application to the facts of this case. Same is the situation with reference to the judgment of the Supreme Court in Harish Verma (supra).
28. Therefore, I am of the view that it was well within the power of the Government to prescribe an eligibility criteria for service candidates under Section 5(3) of the Act by prescribing the same in the prospectus. When such a power is available and it is invoked by the Government, the question of invoking power under Article 162 does not arise. Under these circumstances, I do not think that Clause 4-4.1 suffers from any infirmity as far as the power of the Government is concerned.
29. The next question to be considered is whether the W.P.C.Nos.5858/2014 & conn.cases 36 impugned provision in the prospectus is, in any way unreasonable. According to the petitioner, the reason stated for incorporating such a provision is "optimum utilization of service quota seats and to tide over the dearth of specialists in Health Services Department." This, according to the petitioners, is arbitrary and unreasonable in so far as there is no dearth of specialists in Health Service Department. It is, inter alia, contended that out of the limited seats available for Post Graduate/Diploma course in the State, the number of candidates are more than double, if reference is made to the previous years' data. The respondents, however rely upon the requirement of specialists in Health Service Department and it is submitted that such a decision has been taken along with discussions at various level of consideration, taking into account the overall situation in the Health Service Department. When it is open for the Government under a particular Statute to deviate from the fixed formula and prescribe eligibility criteria different from W.P.C.Nos.5858/2014 & conn.cases 37 what has been followed earlier, it only reflects the policy of the Government, which cannot be termed as unreasonable in any form. When the Government has exercised its statutory power to incorporate in the prospectus a provision which permits more in-service candidates to have the benefit of admission to Post Graduate/Diploma course, despite the fact that such qualifying persons will be considered for admission based on seniority, it cannot be said that the decision is arbitrary, unreasonable or mala fide in any manner.
In the said circumstances I am of the view that the petitioners are not entitled for any relief and accordingly the writ petitions are dismissed.
(A.M.SHAFFIQUE, JUDGE) jsr W.P.C.Nos.5858/2014 & conn.cases 38