Madras High Court
Dr.Preethiswary S vs Dr.G.Kamaleshwaran
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 05.05.2017 Pronounced on: 06.05.2017 CORAM: THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN W.A.Nos.453, 484, 490, 491, 498, 499, 506, 527, 536 and 537 to 546 of 2017 and Connected Miscellaneous Petitions W.A.No.453 of 2017 1.Dr.Preethiswary S. 2.Dr.Thirunavukkarasu P. 3.Dr.Gokul R. 4.Dr.Arun P. .. Appellants vs. 1.Dr.G.Kamaleshwaran 2.The Principal Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai-9. 3.The Director, Directorate of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai-600 010. 4.The Secretary, Selection Committee, Directorate of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai-600 010. .. Respondents Prayer: Writ Appeal filed against the order passed by this Court dated 20.03.2017 passed in W.P.No.6094 of 2017. For Appellants in WA.No. 453/2017 : Mr.N.Suryasenthil For Appellants in WA.No. 484/2017 : Mr.C.Manishankar Additional Advocate General assisted by Mr.T.N.Rajagopalan Special Government Pleader For Appellants in WA.No. 490/2017 : Mr.G.Sankaran For Appellants in WA.No. 491/2017 : Mr.R.N.Amarnath For Appellants in WA.Nos. 498 & 499 & 537 to 546/2017 : Mr.P.Wilson, Senior Counsel assisted by Mr.K.P.Narayanan For Appellants in WA.Nos. 506 & 527/2017 : Mrs.G.Thilakavathy, Senior Counsel, assisted by Mr.K.V.Sajeev Kumar and Mrs.Bhavani Subbaroyan For Appellants in WA.No. 536/2017 : Mr.L.Chandrakumar For R1 in WA.No.453, 484, 490, 491, 498, 499, 506, 527, 537 to 545/2017 : Mr.G.Justin For R5 in WA.No.536/2017 For State Government in all Writ Appeals : Mr.C.Manishankar Additional Advocate General assisted by Mr.T.N.Rajagopalan Special Government Pleader For MCI in all W.As. : Mr.Vijay Narayan, Senior Counsel assisted by Mr.V.P.Raman For R2 to R20 in W.A.No.484/2017 : Mr.Godson Swaminathan COMMON JUDGMENT
These Writ Appeals are listed before this Court by way of Specially Ordered cases for the following reasons.
2 One Dr.Rajesh Wilson had filed W.P.No.6031 of 2017 on 03.03.2017 praying for issuance of a Writ of Mandamus directing the Director of Medical Education, Kilpauk, Chennai-600 010 and the Selection Committee, The Director of Medical Education, Kilpauk, Chennai-600 010, to implement the Regulation 9(IV) of Post Graduate Medical Education Regulation, 2000 as amended by adding 30% marks on the marks secured by him in the National Eligibility cum Entrance Test Post Graduate [in short NEET-PG] while preparing the rank list for admission to Post Graduate Course in 50% reserved category for Government Servants for the academic year 2017-2018 by passing orders on his representation dated 24.02.2017. The said writ petition was entertained and pendency of the same, the Medical Council of India, New Delhi-110 077, has been impleaded as the fourth respondent in the said writ petition. Since the cut-off date for admission is on 07.05.2017, the writ petition was taken up for final disposal. The respondents in the writ petition did not file their counter affidavits. Arguments were advanced on behalf of the writ petitioner contending that proviso to Clause (IV) of Regulation 9 of the Post Grade Medical Education Regulations, 2000 has been added, vide notification dated 15.02.2012, with effect from 27.02.2012 and as per the same, the petitioner is entitled for 10% of the marks to be obtained to be added along with the marks he had obtained in NEET for every completed year of service and therefore, he is entitled for 30% of the marks to be obtained to be added with his NEET marks and therefore, ranking may be done accordingly. The petitioner, in this regard, has also submitted a representation to the second respondent to comply with the above said provisions and there was no response.
3 The Writ Petitioner has placed reliance upon the judgment rendered by the Honble Supreme Court of India in State of Uttar Pradesh and Others v. Dinesh Singh Chauhan [2016 (9) SCC 749], wherein the scope of Regulation 9 of the Post Grade Medical Education Regulations, 2000 has been considered in detail and it has been held that Regulation 9 is a self-contained code regarding the procedure to be followed for admission to medical courses and it has been further held in the said decision that the State has no authority to enact any law, much less any executive instructions that may undermine the procedure for admission to Post Graduate Medical Courses enunciated by the Central Legislation and Regulations framed thereunder, being a subject falling within Schedule VII List I Entry 66 of the Constitution of India.
4 The learned Special Government Pleader appearing for the respondents 1 to 3 in the said writ petition contended that Regulation 9(IV) enables the State to give weightage in the marks as an incentive and therefore, relevant Clauses in the Prospectus for Post Graduate Medical Admission for the academic year 2017-2018 do not in any way undermine the said Regulation and by adopting the Principle of Harmonious Construction, the Regulations as well as the Prospectus can co-exist and the object of the same is to give incentive to doctors who are working in remote/difficult arrears and therefore, prayed for dismissal of this writ petition.
5 The learned Single Judge, after considering the rival submissions, held that Post Graduate Medical Education Regulations, 2000 formulated in exercise of the powers conferred under Section 33 read with Section 20 of the Indian Medical Council Act, 1956 with the sanction of the Central Government and hence, the State cannot adversely affect the standards laid down by the Centre and that apart, the Regulations are binding and the States cannot make any law which is in conflict with or adversely impinge upon the Regulations made by the MCI. The learned Judge further held that the State cannot have its own rationale to arrive at a different calculation in awarding of the weightage marks. The learned Judge, citing the said reasons, had disposed of the said writ petition, vide order dated 17.04.2017, directing the respondents 2 and 3 therein to follow the Regulations 9(4) of the Post Graduate Medical Education Regulations, 2000 by adding 30% on the marks secured by the petitioner in the NEET examination while preparing the ranking list for admission to the Post Graduate Course in 50% reserved category for Government servants for the academic year 2017-2018 and also made it clear that admissions can and ought to be made only on the basis of the above said Regulations.
6 The in-service candidates who are parties to the said writ petition, after obtaining leave, had filed W.A.Nos.453, 484, 490, 491, 498, 499, 506 and 527 of 2017 and moved before the Second Bench of this Court [Honble Mr. Justice Huluvadi G.Ramesh and Honble Mr.Justice RMT.Teeka Raman] and the Division Bench found that since the pleadings have not been completed, disposing of the matter involving complex issues at the stage of admission, would not be proper and directed the learned counsel for the parties to complete their pleadings at the earliest and they may seek for appropriate date for early hearing during vacation and granted liberty to the learned counsel for the parties to move the Honble Chief Justice for hearing the matter during vacation and the parties are at liberty to move the Vacation Bench for early hearing and disposal of the matter. Accordingly, in the light of the urgency, especially with regard to the adherence of the time limit prescribed for completing the admission, the Registry has placed the matter before the Honble The Chief Justice and vide order dated 28.04.2017, the said Writ Appeals were directed to be listed before the Specially Constituted Bench consisting of the Honble Mr.Justice K.K.Sasidharan and Honble Mr.Justice S.M.Subramaniam.
7 The Writ Appeals were listed for hearing on 02.05.2017 and after hearing the submissions made by the respective learned counsel appearing for the parties, Judgments were reserved on 02.05.2017 and were pronounced on 03.05.2017.
8 The Honble Mr. Justice K.K.Sasidharan, in the judgment dated 03.05.2017 found that MCI Regulations provide for 30% of the NEET marks as weightage by way of incentive marks and the State norms restricts the weightage marks at 10% and there is no dilution of the standards set by MCI by taking 90% of the marks secured by the candidate in NEET and 10% for rural service, calculated in the marks indicated in the Prospectus. The learned Judge further observed that two regulations have to be construed harmoniously to achieve the common object of encouraging service in remote and difficult areas and to award incentive marks for such service. The learned Judge further observed that there is absolutely no conflict between the Central Regulation and the State Policy on account of different criteria followed for awarding incentive marks and the method evolved by the State therefore, meet the Equality Test under Article 14 of the Constitution of India. The learned Judge has also considered the issue relating to reservation in favour of in-service candidates and found that the writ petitioner did not make a challenge to the legality and correctness of the Prospectus issued by the State of Tamil Nadu and challenge is made only to the method adopted by the State Government for awarding incentive marks and held that the question as to whether the State was correct in reserving 50% of the seats in each specialty and in each college for service candidates requires to be decided in an appropriate proceedings with opportunities to the parties to file counter affidavit. The learned Judge having found that the writ petition was filed only for the relief of Mandamus and therefore, it is not permissible to expand the scope of the related appeals and test the validity of all the Clauses in the Prospectus and felt that there is no need to consider the legality and correctness of the Prospectus fixing 50% each for the in-service candidates and the award of uniform marks for both service and non-service candidates for experience, in the present intra court appeals. The learned Judge further observed that 07.05.2017, being the cut off date prescribed by the Honble Supreme Court of India for counselling, the questions regarding reservation for in-service candidates and award of incentive marks for experience for both the in-service and non-service candidates are kept open to be decided in appropriate proceedings. The learned Judge, citing the said reasons, had set aside the order dated 17.04.2017 made in W.P.No.6031 of 2017 passed in the writ petition and moulded the relief by directing the Selection Committee, Directorate of Medical Education to consider the case of the petitioner in W.P.No.6031 of 2017 for awarding weightage marks in accordance with the method indicated in the Prospectus for the year 2017-2018.
9 The common judgment authored by the Honble Mr.Justice K.K.Sasidharan was circulated to the Honble Mr.Justice S.M.Subramaniam and the learned Judge respectfully disagreed with the views and conclusions and authored the dissenting judgment.
10 The Honble Mr.Justice S.M.Subramaniam formulated the question Whether the Prospectus issued by the State Government for admissions to Post Graduate Medical Courses is in contradiction or in consonance with the Regulations issued by MCI? The learned Judge, after extracting Section 10(D) of the Indian Medical Council Act, 1956 and the Clauses in the Prospectus, held that any Prospectus and selection procedures notified by the State Government should be in accordance with the MCI Regulation and NEET marks awarded through common entrance examination cannot be altered or tinkered by the State and a separate procedure cannot be adopted for awarding incentive marks. The learned Judge further found that no reservation was granted for post graduate medical courses and 50% reservation was awarded only for post graduate diploma courses by virtue of Regulation 9(1)(b) of MCI Regulation and therefore, the Prospectus issued by the State of Tamil Nadu granting 50% reservation for in-service candidates for admission to post graduate medical courses are directly in violation of MCI Regulation. The learned Judge further observed that since no such reservation is permissible, as the reservation of granting 50% reservation for Post Graduate Diploma Course have different objectives and the same cannot be converted by the State for admission to the Post Graduate Courses also and Clause 33(b) of the Prospectus will not stand under the scrutiny of Articles 14 and 16 of the Constitution of India, in view of the fact that it creates a class within a class amongst the eligible candidates.
11 The learned Judge also taken note of the decision in Dinesh Singh Chauhan case (cited supra) and after extracting the relevant paragraphs, found that institutional reservation by the State is impermissible under the Constitution and the State has no authority to issue any such order, when the MCI Regulation itself is self-contained code and nothing under the regulation granting separate channel for admission to in-service candidates. The learned Judge also taken into consideration the judgment rendered by the Honble Supreme Court of India in Sudhir v. State of Kerala [2015 (6) SCC 685] and noted that the Apex Court has taken a firm view on MCI Regulations, more particularly, admission to Post Graduate Medical Courses and held that any deviation or violation will result in discrimination and will affect the uniformity in selection procedures and the whole object of NEET examination and prescription of regulation by MCI is to maintain uniformity in the standards of admission for postgraduate courses. The learned Judge, after taking note of the above cited decision, held that Prospectus issued by the State of Tamil Nadu creates a separate reservation for in-service candidates by allotting 50% of seats, converting NEET marks and by awarding 10 marks separately for in-service candidates which are in violation of MCI Regulations. The learned Judge also taken note of the fact that both for service and non-service candidates, the NEET marks are converted from 100 to 90 and therefore, an additional 10 marks for in-service candidates are awarded as per the Prospectus and this will also create discrimination between in-service and non-service candidates and as such, conversion by the State Government is impermissible under MCI Regulations.
12 The learned Judge has also considered the issue regarding repugnancy in respect of Article 254, 7th Schedule Entry 25 List III and the Prospectus and taken note of the judgment rendered by the Division Bench of this Court in the decision in The Tamil Nadu Dr.M.G.R. Medical University v. P.Anand [2011 (6) CTC 801] and held that the State Government cannot adopt same standard for admission to the Under Graduate Courses and Post Graduate Courses and any dilution of the standards in higher education will certainly have an adverse impact in the quality of medical education and it affects the diagnosis and nature of treatment provided to the general public. The learned Judge has also taken into consideration the judgment rendered by the High Court of Rajasthan in Civil Writ No.4005/2017 as well as the order dated 26.04.2017 made in W.P.No.7026 of 2017 [Punjab and Haryana High Court] and found that many States of our Country has recognized the importance of Regulation 9(IV) of MCI Regulations, 2000 and the State of Tamil Nadu is also has to fall in line with MCI Regulation without any clause in Prospectus issued in contravention with MCI Regulations, 2000.
13 The learned Judge also noted the decision in Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others [(2016) 7 SCC 353] rendered by a Constitution Bench of the Honble Supreme Court of India and found that provision of separate special marks is not in consonance with Regulation 9(IV) of the MCI Regulations, 2000 to that extent the same is to be declared as void and discriminatory. The learned Judge further found that the logic behind the inclusion of Government Medical College Hospitals of Thiruvarur, Nagapattinam and Ramanathanapuram Districts remain unexplained by the State and in the absence of any convincing justifiable reason, there is no scope for sustaining this nature of awareness of bonus marks in a clandestine manner and found that The Scheme of awarding marks prescribed under the MCI Regulations are entirely different from the manner in which, the State Government grants incentive marks to the in-service candidate served in rural, hilly and remote/difficult areas. The learned Judge found that though there is no prayer in the writ petition, this Court is inclined to mould the prayer in order to grant substantial relief to all concerned, to maintain uniformity amongst the candidates for determination of minimum standard of education for Post Graduate Degree / Diploma Courses in accordance with MCI Regulation, 2000.
14 It is relevant to extract the reliefs moulded in the writ appeals:
(1) Clause 16,17 and 33(b) under Chapter VI merit list of the Prospectus issued by the Government of Tamil Nadu are declared inconsistent/repugnant to Regulation 9 of the Post Graduate Medical Regulation, 2000 issued by the Medical Council of India and accordingly quashed.
(2) The Government of Tamil Nadu is directed to formulate the procedure for admission process in accordance with Regulation 9 and 9(IV) of the Post Graduate Medical Regulation, 2000 issued by the Medical Council of India.
(3) Accordingly, the Government of Tamil Nadu is directed to prepare merit rank list for admission to Post Graduate Degree/Diploma Courses in Tamil Government Medical Colleges, Government seats in self-financing colleges affiliated to Dr. MGR Medical University and Annamalai University for the Academic Year 2017-2018.
(4) The Government of Tamil Nadu is directed to conclude the merit rank list as per the above directions and proceed with the admission process as per the time frame, already fixed.
The learned Judge, citing the said reasons, has dismissed the Writ Appeals, vide common judgment dated 03.05.2017.
15 The Registry, in the light of the divergent views expressed by the learned Judges, had placed a note before the Honble Chief Justice as to the posting of these Writ Appeals and vide orders dated 03.05.2017, all the Writ Appeals are listed before this Court [M.Sathyanarayanan, J.]. In the light of the urgency, especially with regard to the cut off date prescribed by the Honble Supreme Court of India expires on 07.05.2017, on the very next day on 04.05.2017, all the Writ Appeals are listed for hearing.
16 It is relevant to extract Clause No.36 of the Amended Letters Patent of this Court:
36. Single Judges and Division Courts.- And We do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Madras. In the exercise of its original or appellate jurisdiction, may be performed by any judge, or by any Division Court thereof, appointed or constituted for such purpose and if such Division Court is imposed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided [they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case included who those first heard it.] 17 In Minor Senthilkumar v. The State of Tamil Nadu [(1991) 1 L.W. 113, 161 (DB)], it has been observed that failure to record the points of difference between the judges of a Division Bench will not invalidate the reference to third judge.
18 In All India Anna Dravida Munnetra Kazhagam v. State Election Commissioner [(2007) 2 MLJ 129, 214 paragraph 182], it has been held that where the specific point on which the difference has arisen has not been recorded, the difference as apparent from the discussions and conclusions of the two differing Judges should be culled out and decided on that basis without returning the matter for recording the difference.
19 A perusal of the orders passed by the learned Judges in these Writ Appeals did not indicate the point of difference and that a specific point on which difference has arisen has also not been recorded.
20 The Honble Mr.Justice K.K.Sasidharan has held the underlining object to award incentive marks for the doctors who have served in the notified area and give weightage to their experience of the MCI Regulations and the State Norms (Prospectus) have to be construed harmoniously to achieve the common object of encouraging such service. The learned Judge has also felt that there is no conflict between the Central Regulation and State Policy on account of different criteria followed for awarding incentive marks and the said method would also meet the Equality Test under Article 14 of the Constitution of India. The learned Judge further held that in the absence of challenge to the Prospectus, the correctness with regard to reservation of 50% of the seats in each specialty and in each college for service candidates requires to be decided in an appropriate proceedings with opportunities to the parties to file counter and the Court is not expected to travel beyond the scope of the Writ Petition and should confine its decisions to the matter in issue.
21 The Honble Mr.Justice S.M.Subramaniam, by placing reliance upon Dinesh Singh Chauhan case (cited supra), found that the Scheme of the Prospectus of the State provides unfair advantage to the in-service candidates and thus, creates disparity amongst in-service and non-service candidates and the scheme under deviated method of granting incentive to in-service candidate in the Prospectus, is not falling in line with the Scheme enunciated under the MCI Regulations, 2000.
22 In the decision in All India Anna Dravida Munnetra Kazhagam's case (cited supra), it is held that it is not within the scope of reference for the 3rd Judge to travel beyond the difference of opinion between the two judges.
23 Similarly, the appellant in W.A.No.527 of 2017 prayed for a appropriate direction directing the respondents 2 to 4 for award of 30% of marks while preparing the rank list for the service candidates as specified in the Prospectus issued for the year 2017-2018.
24 Mrs.G.Thilagavathi, learned Senior Counsel assisted by Mrs.Bhavani Subbaroyan and Mr.K.V.Sajeev Kumar, learned counsel appearing for the appellants in W.A.Nos.506 & 527 of 2017 would submit that though one mark has been prescribed for the candidates serving in rural areas, the places have not been identified and in the absence of the same, the petitioners, who are working in the rural areas, are not likely to get one mark.
25 In response to the said submission, Mr.T.N.Rajagopalan, learned Special Government Pleader, on instructions, would submit that if the petitioners are serving in Primary Health Centres in the rural areas, their claim for award of one mark will be considered and the said submission, on instructions, is placed on record.
26 In view of the prayer sought for by the appellants in the writ appeals and in the light of their affidavits dated 04.05.2017, which travels beyond the scope of reference to this Court on account of difference of opinion between the two Honble Judges, counter affidavits are yet to be filed by the respondents including the official respondents, this Court is not inclined to take up the said matters viz., W.A.Nos.506 & 527 of 2016 and the said Writ Appeals are to be de-linked.
27 Mr.C.Manishankar, learned Additional Advocate General assisted by Mr.T.N.Rajagopalan, learned Special Government Pleader appearing for the State Government in all these writ appeals has invited the attention of this Court to the orders passed by the learned Judges as well as the typed set of documents and would submit that in the Prospectus for Post Graduate Admissions for the year 2017-2018, inclusion of 50% seats reserved for All India Quota at 50% of seats in each specialty in Post Graduate Courses is allocated to the doctors serving in Government Hospitals with stringent condition that on selection, they are required to serve in the Government till they reach superannuation and they have to execute a bond for a sum of Rs.40 lakhs and the said stringent condition has been imposed solely with the object of providing quality and timely health care to the people of the State, especially to those living in rural, remote and hilly arrears. It is the further submission of the learned Additional Advocate General that relevant Clauses in the Prospectus are in tune with Regulation 9(IV) as well as proviso to Post Graduate Regulations, 2000 and though the proviso provides for awarding incentive marks at the rate of 10% of the marks obtained for each years of service in the remote and/or difficult areas and Clause (IV) of Regulation 9 provides experience marks for all candidates upto a maximum of 10 and it is also not in dispute that the reservation policy of an individual State cannot be tinkered and the States are also entitled to impose conditions to State quota seats for Under Graduate and Post Graduate levels. It is the further submission of the learned Additional Advocate General that as per the Prospectus 90 marks for entrance examination and 10 marks for experience have been fixed taking into consideration the situation and ground reality prevailing in the State and if that procedure/system is given a go-by, it is extremely difficult to get doctors with qualifications and experience to serve in rural/remote/hilly/difficult areas. It is also submitted by the learned Additional Advocate General that doctors who are serving in those areas are having legitimate expectation to get incentive marks so as to enable them to get admission in Post Graduate Courses and any deviation would definitely shatter their expectations and taking into consideration the humanitarian service rendered to the people residing in those areas, the State thought fit to encourage those class in the Prospectus and prays for setting aside the impugned order passed in the writ petition and also to uphold the reasons assigned by the Honble Mr.Justice K.K.Sasidharan, in the common judgment dated 03.05.2017.
28 Mr.P.Wilson, learned Senior Counsel appearing for the appellants in WA.Nos.498 and 499/2017, had formulated the following points for consideration:-
[1]Whether the Writ Petition is maintainable without challenging the NEET and State Prospectus?
[2]Whether the writ petition is maintainable without impleading the necessary party, viz., National Board of Examinations which is the designated authority under section 10-D of the Medical Council of India Act?
[3]Whether a candidate who has participated in the Written Test accepting the Prospectus is entitled to seek from the Court contrary to the Prospectus?
[4]Whether the impugned Judgment is right in awarding 30% of incentive marks to the p who claims to have joined Government Service and served in a hilly area which category is not contemplated under Regulation 9[4] Proviso?
[5]Is not the Medical Council of India having approved the NEET-PG Examination Prospectus issued by National Board of Examination estopped from taking a contrary stand to that of Prospectus?
[6]When the State with Constitutional goal of improving public health has extended a promise to the doctors to award incentive marks, will not the impugned judgment denude the said power and frustrate its constitutional obligations?
[7]Whether the Appellant doctors who having executed a bond and joined the services after accepting the promise the promise of state are entitled to experience and incentive marks by virtue of principles of legitimate expectation?
[8]Whether the State by virtue of insertion of Regulation 9-A has power to regulate the admission and counselling by drawing a merit list on the basis of marks set out in State Prospectus and NEET exams?
[9]Whether awarding of experience marks for all MBBS candidates and incentive marks for in-service candidates by State as contemplated in G.O.Ms.NO.704, Health and Family Welfare Department, dated 27.03.2017 while drawing the merits list is well within the power of the State under Entry 25 List III and does not reduce the standards of medical education and therefore, Regulation 9[4] Proviso which is illustrative and not exhaustive has to be read harmoniously?
[10]Whether after insertion of section 10-D by Amendment Act 39 of 2015, the Medical Council of India is not empowered to prescribe the terms of Prospectus including the conduct of uniform entrance examination?
[11]Whether the Regulations 9[4] Proviso circumscribes the power of the State Government in awarding experience and incentive marks for the students and bar the State to lay down any additional categories pursuant to its concurrent power under Entry 25 List III?
[12]Whether the impugned Judgment which has not taken note of the insertion of Section 10-D of Indian Medical Council Act, 9-A Post Graduate Medical Examination Regulations 2000, the ratio laid down by the Constitutional Bench in the Modern Dental College [2016 [7] SCC 353] upholding the power of the State Government to frame admission procedures under Entry 25, List III, is liable to be set aside?
29 The learned Senior Counsel appearing for the appellants has invited the attention of this Court to the Information Bulletin for National Eligibility cum Entrance Test [Post Graduate] for admission to MD/MS/Post Graduate Diploma Courses 2017 conducted by the National Board of Examinations and would submit that as per the Flow Chart for NEET-PG 2017 for admission to Post Graduate Courses available at inner page No.9 and would submit that in respect of All India 50% no service candidates will be considered and in respect of State Quota seats, Government seats are owned and controlled by the State Government and admission process is to be undertaken and completed by the concerned designated Counselling Authority of Private Colleges/Institutions/Institutes/Universities/Deemed Universities using NEET-PG Courses and as per the applicable Regulations and / or their eligibility criteria, Reservation policy etc. In the light of the same, the relevant clauses in the Prospectus issued by the fourth respondent for the academic year 2017-18, prescribing the method of marks subject to the maximum of 10, is perfectly in order.
30 The learned Senior Counsel appearing for the appellants would submit that it is also ensured that persons who are selected to Post Graduate Degree shall execute a bond for a sum of Rs.40 Lakhs with two sureties, two of which should be permanent Government servants in the same or higher rank as that of the candidate and one surety should be the parent of the candidate and also shall furnish an undertaking that they will serve in Government till their superannuation and the incentive marks as well as the stringent condition has been imposed with a view to benefit the people of Tamil Nadu, who are approaching the Government Hospitals/Primary Health Centres for treatment and more particularly, to the advantage of the people living in hill / remote / rural / difficult areas and the said laudable object is to be appreciated.
31 It is the further submission of the learned Senior Counsel appearing for the appellants in WA.Nos.498 & 499/2017 that even as per the above cited Regulations read with Proviso, remote / hill /rural / difficult areas especially, defined by the State Government / competent authority from time to time and much prior to the introduction of the said proviso during the year 2012, the State Government had identified remote / hill /rural / difficult areas and it was also taken into consideration by the Hon'ble Supreme Court of India reported in 2012 [8] SCC 203 [Sathyabrata Sahoo Vs. State of Orissa], and in the said matter, validity of Clause 11.2 of the Prospectus for selection of candidates in the Government Medical College of Orissa, came to be challenged on the ground that additional weightage for candidates who are employees of Government of Orissa, and their occupation in rural/tribal/backward areas.
32 The learned Senior Counsel appearing for the appellants would submit that admittedly, the Prospectus has not been put to challenge and 10 marks provided in the Prospectus as an incentive is less than the marks prescribed in NEET and the learned Judge [Hon'ble Mr. Justice K.K.Sasidharan] has taken into consideration the noble object of encouraging the doctors serving in rural areas, had applied the Principle of Harmonious Construction and found that the Regulations as well as the proviso and the Prospectus can co-exist and since the time limit prescribed for PG Medical courses expires on 07.05.2017, relevant clauses in the Prospectus ought not to have been quashed. The learned Senior Counsel has also adopted the arguments of the learned Additional Advocate General as to the legitimate expectation on the part of the appellants to get incentive marks for having served in hill / rural / remote / difficult areas and prays for sustainment of the common judgment passed by the Hon'ble Mr. Justice K.K.Sasidharan.
33 The learned Senior Counsel appearing for the appellants, in support of his submissions, placed reliance upon the following decisions:-
(i)Dr.R.Murali v. Dr.R.Kamalakannan and 3 Others [1999 (III) CTC675]
(ii) Dr.M.Vennila v. Tamil Nadu Public Service Commission [2005 (3) CTC 449]
(iii) State of Uttar Pradesh and Others v. Dinesh Singh Chauhan [(2016) 9 SCC 749]
(iv) Dr. Preeti Srivatsava and another v. State of M.P. and Others [(1999) 7 SCC 120]
(v) State of Punjab v. Dayanand Medical College and Hospital and Others [(2001) 8 SCC 664]
(vi) Dr.Snehalatha Patnaik and Others v. State of Orissa and Others [(1992) 2 SCC 26]
(vii) Satyabrata Sahoo and Others v. State of Orissa and Others [(2012) 8 SCC 203]
(viii) M.S.Vijay Anand v. State of Tamil Nadu Rep. by its Secretary [MANU/TN/2539/2009]
(ix) Yatinkumar Jashbhai Patel and Otherws v. State of Gujarat and Others [MANU/GJ/0252/2017]
(x) Aarti Dhatwalia and Others v. State of H.P. and Others [MANU/GP/0178/2017]
(xi) Dr.M.Ashiq Nihmathullah Vs Government of Tamil Nadu [2005 [5] CTC 26]
(xii) Minor S. Janani Vs. State of Tamil Nadu [2006 [3] L.W.795] 34 Mr.G.Sankaran, learned counsel appearing for the appellants in WA.No.490/2017 has drawn the attention of this Court to the decision in State of Uttar Pradesh and Others v. Dinesh Singh Chauhan [2016 (9) SCC 749] and would submit that the proviso added to Regulation to 9[2][d] in terms of the Gazette Notification dated 19.12.2009 was the subject matter of consideration and question arose as to the challenge made to the Government Orders passed by the State of Uttar Pradesh with regard to the imposition of condition of working in three years in rural/difficult areas and in the context of the matter, the Hon'ble Supreme Court of India had observed that Regulation 9 is a self contained Code and as such, the State has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to post graduate medical courses enunciated by the Central legislation and regulations framed thereunder, being a subject falling within Schedule VII List I Entry 66 of the Constitution of India. It is the further submission of the learned Counsel appearing for the appellants that the relevant clauses in the Prospectus giving weightage marks in any way override/undermine the said Regulation as well as the proviso and though the proviso says that incentive marks at the rate of 10% for marks obtained for each years of service for serving in remote/rural/difficult areas upto the maximum of 30% marks obtained in NEET, the State Government thought fit to prescribe the maximum limit of 10% marks only and if the Principle of Harmonious Construction is adopted, the proviso as well as the relevant clauses in the Prospects can co-exist as both are framed with the noble and laudable object of encouraging doctors to serve in those areas.
35 It is also contended by the learned counsel appearing for the appellant that the provision for awarding weightage marks in respect of doctors serving in the above said areas is in vogue for quite long time and very recently, only in the year 2000, the Medical Council of India thought fit to incorporate the provision for awarding weightage marks for rendering service in remote/difficult areas and it has been modified, vide Notification of the Medical Council of India dated 15.02.2012, with effect from 27.02.2012. The learned counsel appearing for the appellant has also drawn the attention of this Court to Section 10(D) of the Indian Medical Council Act, 1956 and would submit that the said provision came to be inserted by Act 39 of 2016 with effect from 24.05.2016 that too after the proviso to Regulation 9(IV) of of the Post Graduate Medical Education, 2000 and in the light of the flow chart given by the National Board of Examination, who is the authority to conduct NEET examinations, the Prospectus cannot be found fault with and would further add that in the dissenting verdict, certain factual errors also occurred and the learned Judge, in the absence of challenge to the Prospectus, ought not to have moulded the relief and prays for setting aside the order passed in the writ petition and confirming the verdict of the Hon'ble Mr. Justice K.K.Sasidharan.
36 It is to be noted at this juncture that after passing of the orders in the writ petition, the respective learned counsel appearing for the appellants moved the Second Bench of this Court for early hearing and vide orders dated 27.04.2017, this Court directed the learned counsel for the parties to complete their pleadings at the earliest and they may seek the appropriate date for early hearing during vacation and granted liberty to the learned counsel for the parties to move the Honble Chief Justice for hearing the matter during vacation and the parties are at liberty to move the Vacation Bench for early hearing and disposal of the matter.
37 The appellants in W.A.No.484 of 2017, who are the respondents 1 to 3 in W.P.No.6031 of 2017, had filed the affidavit and it was sworn to by the first appellant. It is stated in the said affidavit that for the academic year 2017-2018, the Tamil Nadu Legislative Assembly had passed two separate Bills to enable continuance of State Policy for Under Graduate/Post Graduate admission which are awarded the assent of the President of India and prior to that, the Union Minister for Health and Family Welfare in his letter addressed to the Hon'ble Chief Minister of Tamil Nadu dated 08.09.2016 had given an assurance that States may impose conditions as they deem fit, on State quota seats at UG/PG level and based on the said assurance, the State Government had issued the Prospectus for the Post Graduate Medical and Dental courses, following NEET-PG entrance examination and continuing the existing policy of reserving 50 % of State Quota or Government seats for the candidates in Government seats with the preferential marking system followed in earlier years. In para 8 of the said affidavit dated 02.05.2017, the appellants in W.A.No.484 of 2017 took a stand that Clause 9(IV) of the Post Graduate Medical Education Regulations, 2000, providing incentives for service candidates has not been implemented for All India quota seats and despite the amendments made to the Regulations made in February 2012, they have not been insisted upon till now and the State's Admission policy has not been affected in the light of the discretion to the State Government.
38 The appellants in W.A.No.484 of 2017 also placed reliance upon the judgment rendered by the Hon'ble Supreme Court of India in Modern Dental College and Research Centre v. The State of Madhya Pradesh [(2016) 7 SCC 353] with regard to Entry 656 in List I wherein one of the Hon'ble Judge, namely Hon'ble Mrs.Justice R.Banumathi had observed among other things that only the State legislation can create equal level playing field for the students who are coming out from the State Board and other streams. It is further averred in the affidavit that despite investing huge amount of State funds and considering that 50 percent of State Government seats are surrendered to All India Quota, in effect the in-service reservation is only for 25 per cent of the overall number of seats in Post Graduate Degree and Diploma Medical Courses and the impugned order passed in the writ petition did not refer to the existing Government policy and practice and without any opportunity to any stakeholder to present the overall picture and without reference to the huge impact it is going to have on provision on health services in the Government Sector in all of the State. The appellants in W.A.No.484 of 2017 also took a stand that in the absence of any challenge to the Prospectus, the procedure as outlined in the Prospectus alone should be upheld, as any change midway through the process will not only be arbitrary but it will benefit only a selected few disproportionately without reference to the overall admission policy of the State Government which has a sound rationale and therefore, prayed for upholding the legality of the Prospectus.
39 The impleaded party/fourth respondent in the writ petition namely, the Medical Council of India had filed short response affidavit dated 01.05.2017 and they took a stand that in exercise of power conferred under 33 of the Indian Medical Council Act, 1956, Post Graduate Medical Education Regulations, 2000, came to be framed and Regulation 9 deals with the Regulation for Post Graduate Courses and those Statutory Regulations have to be held to be binding and mandatory by the Hon'ble Supreme Court of India. It is further stated that the benefit of proviso to Regulation 9 [IV] shall only be available to such in-service candidates who have secured the minimum marks at the respective percentiles as provided in Regulation 9[III] and have qualified the NEET-PG test and the weightage in marks as an incentive for each year of service in remote and/or difficult areas could be granted to the deserving in-service candidates only after they have secured the minimum marks at the respective percentiles as provided under Regulation 9][III] and cannot be provided in order to qualify the NEET-PG Test. Insofar as the 50% of the seats reserved for Medical Officers in the Government service is concerned, it is the stand of the Medical Council of India that it is available in respect of Medical Officers in the Government service who have served for atleast three years in remote and/or difficult areas and that after acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by the State Government / Competent Authority from time to time. The Medical Council of India would further aver that in the light of the judgment rendered by the Hon'ble Supreme Court of India in Sudhir v. State of Kerala [2015 (6) SCC 685] wherein it has been held that Regulation 9 is a complete Code itself for determining the academic merit of the candidates seeking admission in Post Graduate Courses. However, it has been given a complete go-by by the Prospectus and similar view was also taken in Dinesh Singh Chauhan's case [cited supra], and as such, it is impermissible to have reservation of seats in any Post Graduate Degree Courses except as indicated in the proviso to Regulation 9[IV] of the Post Graduate Medical Education Regulations, 2000.
40 Mr.Vijaya Narayanan, learned Senior Counsel assisted by Mr.V.P.Raman, learned Standing Counsel appearing for MCI/second respondent in W.A.No.484 of 2017 would submit that the issue involved in this writ appeal is no longer res integra for the reason that it has been considered in detail and in extenso in the two decisions rendered by the Hon'ble Supreme Court of India in Sudhir v. State of Kerala [2015 (6) SCC 685] and State of Uttar Pradesh and Others v. Dinesh Singh Chauhan [2016 (9) SCC 749]. The learned Senior Counsel appearing for the second respondent would contend that Clause Nos.16, 17 and 33 of the Prospectus issued by the appellant for Post Graduate Diploma and Degree Courses for the academic year 2017-2018 totally undermines the statutory provisions and submitted that Subordinate Legislation of the Indian Medical Council Act, 1956, namely Post Graduate Medical Education Regulations, 2000 was framed in exercise of power conferred under Section 33 r/w. 20 of the said Act which came into being with the previous sanction of the Central Government. The learned Senior Counsel appearing for the MCI/second respondent has drawn the attention of this Court to the said Clause in the Prospectus and would submit that as per the proviso to Regulation 9(IV) of Post Graduate Medical Regulation, 2000, while determining the merits of candidates, incentive marks at the rate of 10% for marks obtained for each years of service for serving in remote/rural/difficult areas upto the maximum of 30% marks obtained in NEET, especially defined by the State Government / competent authority from time to time. As per the said proviso, there cannot be any reservation for in-service candidates as contemplated in the Prospectus and marks cannot be awarded for each year completion of CRRI and the pattern of awarding marks is also not left to the discretion of the State Government/competent authority and Clause Nos.16 and 17 of the Prospectus runs contra to the said Regulations. It is the further submission learned Senior Counsel appearing for the MCI that proviso gives discretion to the State Government to define remote/difficult areas and whereas in the Prospectus it has been further classified as rural/hilly/remote/difficult areas and annexures containing the names of the area have also been published and in the light of the time constraint fixed for completion of NEET on 07.05.2017, MCI is not expressing any opinion for the present and the non-identification of the rural areas is the subject matter of challenge in another set of writ appeals.
41 The learned Senior Counsel appearing for the MCI has invited the attention of this Court to Clause 33 of the said Prospectus and would submit that the said Clause also overrides the statutory provisions and in fact, gone to the extent of undermining the statutory powers vested with the Medical Council of India and though the Hon'ble Supreme Court of India in very many judgments had defined the powers of the MCI in respect of medical education, the State Government continues to ignore the same and picture is given that as if it is acting on sentiments. Insofar as the maintainability of the Writ Petition, without making challenge to the relevant clauses in the Prospectus, it is the submission of the learned Senior Counsel appearing for the MCI that the statutory and mandatory provisions of the Indian Medical Council Act are being violated by impugnity by some of the State Governments and it is impossible for the MCI to make a challenge to the said violations, which may be in the form of Legislations/Government Orders/Executive Instructions and invited the attention of this Court to the decisions in Bharathidasan University and Another v. All India Council for Technical Education and Others [(2001) 8 SCC 676] and Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise and Another [(2016) 3 SCC 643] and would submit that when the Regulations traverse beyond the Legislation, the Courts have to ignore it when the question of their enforcement arises and it is not necessary to challenge the vires or otherwise of the same.
42 The learned Senior Counsel appearing for the MCI/second respondent has also drawn the attention of this Court to paras 5, 40, 41, 42 and 44 of the common judgment delivered by Hon'ble Mr.Justice K.K.Sasidharan and would submit that the reasons assigned in the said judgment are contrary to the decisions of the Hon'ble Supreme Court of India in Sudhir's case and Dinesh Singh Chauhan's case (cited supra) and harmonizing the Legislations and the Government Orders does not arise at all for the reason that repugnancy can be only in respect of the provisions in the same Act or different Act and in the case on hand, admittedly, the Prospectus came to be framed on the basis of the Government Order which does not have the force of law.
43 The learned Senior Counsel appearing for the MCI meeting out the submission made by Mr.P.Wilson, learned Senior Counsel appearing for the appellants in W.A.Nos.498 and 499 of 2017, would submit that with regard to the impracticality in the manner in which the marks will be awarded in NEET, has also drawn the attention of this Court to para 35 of the Dinesh Singh Chauhan's case wherein the mode of awarding marks in NEET has also been discussed and hence, there may not be apprehension on the part of the candidates participating in the said test and would further add that in fact NEET gives level playing field to in-service as well as non-service candidates and even to fresh graduates as it is moulded in a scientific and realistic manner. Lastly it is submitted by the learned Senior Counsel appearing for the MCI/second respondent that the reasons assigned in the judgment delivered by the Hon'ble Mr.Justice S.M.Subramaniam are in consonance with the above said decisions of the Hon'ble Supreme Court of India as well as the provisions of the Indian Medical Council Act, 1956 and Post Graduate Medical Education Regulation, 2000 and therefore, prays for confirming the order passed in the writ petition.
44 Mr.G.Justin, learned counsel appearing for the first respondent/writ petitioner would submit that prior to the issuance of the Prospectus, the writ petition was filed and pendency of the same, the first appellant, in exercise of powers conferred under Article 162 of the Constitution of India, has passed a Government Order, based on which the Prospectus came to be formulated and since it ignores the above cited decisions of the Hon'ble Supreme Court of India as well as the statutory provisions, it is to be brushed aside and hence, there is no necessity on the part of the first respondent/writ petitioner to make a challenge to the relevant Clauses in the Prospectus. The learned counsel appearing for the first respondent/writ petitioner would contend that since the appellants in W.A.No.484 of 2017/respondents 1 to 3 in the writ petition had failed to follow the statutory provisions, rather ignored it, a Writ of Mandamus was rightly filed to enforce the statutory Regulations and on that ground also, the writ petition is maintainable. The learned counsel appearing for the first respondent/writ petitioner, in support of his submissions, has placed reliance upon the decisions in (2012) 7 SCC 433 [Priya Gupta V. State of Chhattisgarh and others] ; (2012) 7 SCC 389 [Asha Vs. Pt.B.D.Sharma University of Health Sciences and Others] ; and [2011] 3 SCC 617 [Chowdhury Navin Hemabhai and others Vs. State of Gujarat and others].
45 Mr.P.Wilson, learned Senior Counsel and Mr.G.Sankaran learned counsel appearing for the appellants in the respective Writ Appeals reiterated their submissions and it is the primordial submission of Mr.P.Wilson, learned Senior Counsel appearing for the appellants in W.A.Nos.498 and 499 of 2017 that in the light of the judgment rendered in Modern Dental College and Research Centre's case (cited supra), the Government Order is having the force of law and the Prospectus came to be issued on that basis is sustainable and since the State Government with the laudable object of providing medical service to the people residing in remote/hill/difficult area and awarded incentive marks for quite some time and in respect of the current academic session also, it has been indicated so and all of a sudden, they should not be deprived of the benefits of the said proviso to Regulation 9(IV) of the Post Graduate Medical Education Regulations, 2000.
46 Mr.G.Sankaran, learned Senior Counsel appearing for the appellants would contend that insofar as the candidates in Government service in above said areas, the appellants in W.A.No.484 of 2017 may be directed to follow the annexure given to the Prospectus in letter and spirit and in the next academic year they may revamp/re-issue the same.
47 This Court paid its anxious consideration and best attention to the submissions made by the respective learned Senior Counsels and the learned counsels appearing for either parties and scanned through the materials placed before it in the form of typed set of documents and also considered the relevant decisions relied on in support of the said submissions.
48 This Court has already pointed out in the earlier paragraphs that the first respondent in these writ appeals, viz., Dr.Rajesh Wilson had filed WP.No.6301/2017 on 03.03.2017 and it came to be disposed of on 17.04.2017 and pendency of the same, the Medical Council of India was Suo motu impleaded as the fourth respondent. It appears that the respondents 1 to 3 in the said writ petition, who are the appellants in WA.No.484/2017, did not file their counter and arguments were advanced based on the decision reported in 2016 [9] SCC 745 [Dinesh Singh Chauhan's case [cited supra]. The in-service candidates, who are aggrieved by the said order after obtaining leave, filed these writ appeals and fresh points were urged and a Division Bench of this Court, which heard all the appeals by way of Specially Ordered Cases, given a split verdict and therefore, it is listed before this Court by way of a Reference as per the orders passed by the Hon'ble The Chief Justice.
49 The respective learned Senior Counsels and the learned Counsels for the parties have also raised fresh grounds and new points and therefore, this Court is constrained to consider the same and hence, it may have to give some more findings than those given by the learned Judges in their judgments.
50 The contentions put forth is classified as follows:-
[a] Maintainability of the Writ Petition [b] Repugnancy [c] Indian Medical Council Act, 1956 and Post Graduate Medical Education Regulations, 2000 framed under Section 33 read with section 20 of the Act.
[d] Identification of remote and difficult areas.
Contention-[a] 51 The writ petition was filed by the first respondent for issuance of a writ of mandamus to implement Regulation 9[IV] of the Post Graduate Medical Education and Regulations, 2000 and after entertainment of the said writ petition, in pursuant to the Government Order, the Prospectus for admission of students to Post Graduate Diploma and Degree courses for the academic year 2017-2018 came to be formulated. It is the primordial submission of Mr.P.Wilson, learned Senior Counsel appearing for the appellants in WA.Nos.498, 499 and 537 to 546/2017 that in the absence of challenge to the relevant impugned Clauses in the Prospectus, the writ petition is per se not maintainable.
52 The 1st respondent / writ petitioner seeks the implementation of a statutory regulation framed under the Indian Medical Council Act, 1956 [Central Act 102 of 1956] and the appellants / respondents 1 to 3 in the writ petition in Ground No. [J] in WA.No.484/2017 raised the ground that it is submitted that the Hon'ble Judge failed to note that if the Regulation 9 [IV] of the Post Graduate Medical Education and Regulation, 2000 as amended, is followed, the objective of providing quality health care to the rural and needy people, would be defeated. 53 In the said Writ Appeal, the first appellant / first respondent in the writ petition, took a stand that the word may in the proviso to Regulation 9 [IV] gives them discretion and thus, from the above said ground, the attitude exhibited by the appellants is to not to follow the said Regulation. It is a well settled position of law that the State as well as its Instrumentalities are expected to abide and follow the rule of law. The first respondent / writ petitioner is seeking a Writ of Mandamus, merely praying for implementation of the said statutory provision.
54 In the decision reported in 2001 [8] SCC 676 [Bharathidasan University and another Vs. All India Council for Technical Education and others], obtaining of the approval by the said University under the provisions of the All India Council for Technical Education Act, 1987 [AICTE Act] came up for consideration and it was the stand of the University that it need not obtain such a permission and the said stand was repealed. In paragraph 14 of the above cited judgment, it is observed that consequently when the power to make regulations is confined to certain limits and made to flow in a well defined canal within the stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the Courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly, when the party in sufferance is a respondent to the lis are proceedings cannot confer any further sanctity or authority and validity which is shown and found to obviously patently lack. 55 In the judgment reported in 2016 [3] SCC 643 [Shree Bhagwati Steel Rolling Mills Vs. the Commissioner of Central Excise and Another], the scope of Rules and Regulations which are in the nature of Subordinate Legislation found to be ultra vires, came up for consideration and in paragraph No.29, it is held that, .....This Court has specifically stated that the rules or regulations which are in nature of the Subordinate Legislation which are ultra vires, are bound to be ignored by the Courts when the question of their enforcement arises and the mere fact that there is no specific relief sought for to strike down or declare them ultra vires would not stand in the Courts way of not enforcing them. In the case on hand, the Prospectus came to be issued on the basis of a Government Order and it is the contention of the learned counsel appearing for the first respondent / writ petitioner as well as the Medical Council of India that Clauses Nos.16, 17 and 33[b] totally ignore / negate / undermine the statutory provisions. In the light of the said decisions, it is not necessary on the part of the first respondent / writ petition to make a challenge to the said clauses of the Prospectus and therefore, this Court is of the view that the writ petition is maintainable.
Contention -[b] 56 It is not doubtful that the regulations framed by the Medical Council of India in exercise of powers conferred under Section 33 read with Section 20 of the Indian Medical Council Act, 1956, are held to be statutory in character and it bind all Universities and Colleges and it bind all the concerned authorities who are conducting medical courses and the said regulations are also mandatory in nature. The Hon'ble Apex Court in the decision reported in 1998 [6] SCC 131 [Medical Council of India Vs. State of Karnataka] and the decision of a Constitution Bench reported in 1999 [7] SCC 120 [ Dr. Preeti Srivatsava and another v. State of M.P. and Others] held so and subsequently, in very many decisions, the said position has been reiterated. Mr.P.Wilson, learned Senior counsel appearing for the appellants in WANos.498, 499 and 537 to 546/2017 made a valiant effort that the first appellant, by virtue of the powers conferred under Article 162 of the Constitution of India, has issued a Government Order based on which, the Prospectus came to be formulated and it is having a force of law and in the event of any repugnancy between the Prospectus, which is having a statutory backing in the form of Government Order vis-a-vis the Post Graduate Medical Education Regulations, 2000, harmonious construction is to be adopted so that both provisions will co-exist and the Hon'ble Mr. Justice K.K.Sasidharan, in the judgment in the writ appeals, had done that exercise to the betterment of the in-service candidates, who are serving in hilly/remote/difficult areas and in support of his submissions, has placed reliance upon the decision reported in 1986 [Supp] SCC 543 [Dr.Ambesh Kumar and others Vs The Principal, LLRM Medical College, Meerut and Others]. The facts of the case would disclose that the State of Uttar Pradesh, in exercise of its executive power relating to matters referred to Entry 25 of the Concurrent List, has passed a Government Order in the absence of any law made by the State Legislature and the Hon'ble Supreme Court of India has held that the impugned order lays down the criteria or eligibility of qualification and Entry 25 confer such powers upon the State Government and merely specify an 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 the Medical Council and the same 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, 1956. It is a well settled position of law that the Central Government or State Government can give administrative instructions but the same will not per se lead to the presumption that they are statutory in character. Admittedly, in the case on hand, in the field of medical education, the Medical Council of India is constituted as the sole authority to oversee it and only in the event of any gaps, the administrative instructions can be issued to fill it up.
56 [a] The Hon'ble Supreme Court of India in M.Karunanithi Vs. Union of India reported in 1979 SCR [3] 431 : AIR 1979 SC 898, has considered the issue relating to Repugnancy and observed that the Repugnancy may result in the following circumstances:-
(i) Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
(ii) Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with cl. (2) of Art. 254.
(iii) Where a law passed by the State legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the lay may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List an entrenchment, if any, being purely incidental or inconsequential.
(iv) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Art 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and over-rule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Art. 254. [263 F-264 D].
In the decision reported in 2007 [5] MLJ 246 [Indira Gandhi College for Women Committee, rep. by its Secretary G.Mohan, Madurai-625006 Vs. State of Tamil Nadu rep.by its Secretary, Information and Tourism Department, Chennai and others], this Court has held in paragraph No.19 as follows:-
1. Where the provisions of a Central Act and a State Act in the concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with Clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the state Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the president would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. [emphasis supplied] This Court is of the considered view that the Government Order based on which, the Prospectus was framed/formulated cannot be equated with law or Legislation and therefore, the question of Repugnancy between the Prospectus and the statutory provisions and Subordinate Legislations in the Indian Medical Council Act, 1956, does not arise at all for consideration. Even otherwise, the Hon'ble Supreme Court of India in the decision in Sudhir's case as well as in Dinesh Singh Chauhan's case [cited supra] had given a categorical finding regarding the primacy of the Post Graduate Medical Education Regulation, 2000, more particularly, Regulation 9.
56 [b] The decision rendered by the Division Bench of Rajasthan High Court in D.B.Civil Writ Petition No.4518/2017 dated 07.04.2017 [Dr. Chandra Prakash Sharma V. State of Rajasthan through its Principal Secretary, Department of Medical and Health, Secretariat, Jaipur and others] and the decision dated 26.04.2017 in Civil Writ Petition No.7026/2017 [Rajesh Kumar and another v. State of Punjab and Others] rendered by a Division Bench of Punjab & Haryana High Court, are also in tune with the decision rendered by the Hon'ble Supreme Court in Dinesh Singh Chauhan's case [cited supra].
57 This position leads to the incidental question to Schedule No.VII List I Entry 66 in the Union List and List No.III Entry 25 in the Concurrent List of the Constitution of India and the issue came up for consideration before the Hon'ble Supreme Court of India in the decision reported in 1995 [4] SCC 104 [State of Tamil Nadu and another Vs Adhiyaman Educational and Research Institute and others], wherein, the scope of those Entries in relation to the provisions of the Tamil Nadu Private Colleges [Regulation] Act, 1976 and the Madras University Act, 1923, vis-a-vis, the All India Council for Technical Education Act, 1987 [AICTE] and in paragraph No.41 of the said judgment, the Hon'ble Supreme Court has summed up the legal position and test applicability. In paragraph No.44[ii] of the said judgment, it has been stated that to the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. Further, in paragraph No.44[iii], it has observed that if there is a conflict between two Legislations, unless the State Legislation is saved by the main part of Clause [2] of Article 254, the State Legislation being repugnant to the Central Legislation, the same would be inoperative. 58 It is the submission of Mr.P.Wilson, learned Senior Counsel appearing for the appellants in WA.No.498, 499 and 537 to 546/2017 that the Government Order, based on which, the Prospectus came to be formulated and issued, is having a force of law and the State Government under Entry 25 of the Concurrent List, is entitled to prescribe guidelines for admission of students in Post Graduate Courses. In the considered opinion of the Court, the said submission lacks merit and substance for the reason that the Government Order containing administrative instructions, cannot be equated with the Statute and the field of medical education is already occupied in the form of the Central Legislation, viz., the Indian Medical Council of India, 1956, and various Regulations framed therein.
59 The issue was also considered in the decisions of the Hon'ble Supreme Court of India reported in 2015 (6) SCC 855 [Sudhir and Others Vs. State of Kerala and Others] and 2016 [9] SCC 749 [State of Uttar Pradesh and Others Vs. Dinesh Singh Chauhan] [both cited supra] and while dealing with the issue, Dr. Preeti Srivatsava's case reported in 1999 [7] SCC 120 [cited supra] has also been taken into consideration and it has been held that Regulation 9 of the Post Graduate Medical Education Regulations, 2000, is a complete Code by itself and any law with regard to that will beyond legislation competent of the State Legislation.
60 In the light of the above settled decisions, this Court is of considered view that the Indian Medical Council Act, 1956, and various Regulations framed thereunder, especially, the Post Graduate Medical Education Regulation, 2000, are having primacy and therefore, the appellants in WA.No.484/2017 are bound to follow the same and the only leverage given to them is to identify the remote and difficult areas.
Contention-[c] 61 The respective learned Senior Counsels as well as the other learned counsel appearing for the appellants made a vehement and forceful submissions by inviting the attention of this Court to the Prospectus and would submit that the State Government with a laudable and noble object, is providing incentives to the doctors who are serving in the remote / hilly / difficult areas and insofar as the present academic session also, they were hopeful that the same procedure/system will continue and all of a sudden, their ambition and dream are likely to be shattered and would further add that the State Government is having competence to prescribe guidelines in Clauses 16, 17 and 33[b] of the Prospectus.
62 Per contra, Mr.Vijay Narayan, learned Senior Counsel assisted by Mr.V.P.Raman, learned Standing counsel appearing for the Medical Council of India, has drawn the attention of this Court to the decisions rendered in Sudhir's case [2015 [6] SCC 685] and Dinesh Singh Chauhan's case [2016 [9] SCC 749] and would submit that those decisions had given a complete answer to the points urged on behalf of the appellants and invited the attention of this Court to the relevant paragraphs in the said decisions.
63 Mr.P.Wilson, learned Senior Counsel appearing for the appellants in WA.Nos.498, 499 and 536 to 547/2017 has invited the attention of this Court to some decisions including the Constitution Bench decision rendered in Dr.Preeti Srivatsava's case [1999 [7] SCC 120 ] and the decision rendered in State of Madhya Pradesh Vs Gopal D.Trithani reported in 2003 [7] SCC 83.
64 In Sudhir's case reported in 2015 [6] SCC 685, the writ petition was filed praying for a direction for selection of in-service Medical Officers for Post Graduate Medical Education u/s.5[4] of the Medical Officer Admission Rule, Post Graduate Courses In-Service Quota Act, 2008 [Kerala Act 29 of 2008] and the High Court had allowed the writ petition with a direction to select them strictly on the basis on inter-se senority of the candidates who have taken the Common Entrance Test held under auspices of the Medical Council of India and it was put to challenge before the Hon'ble Apex Court. The primordial ground on which the challenge was made to the validity of the said Act was that the said Legislature could not enact a law that would make selection for admission to the Post Graduate Courses depending solely on the seniority of the in-service candidates, without prescribing minimum conditions of eligibility for the candidates and thereby, the said piece of legislation had violated the regulations framed by the Indian Medical Council Act, 1956. The in-service doctors who were arrayed as the respondents in the appeal filed before the Hon'ble Apex Court, contended that but for the provision permitting the quota for service aspirants for admission to Post Graduate Courses, it would be difficult to compete with fresh Graduates who may be academically better of than the candidates who were since long given up their studies and devoted themselves entirely to the service of the people at large, some of them inhabiting to remote and difficult areas of the State. The Medical Council of India contended that as per the regulations, the students for Post Graduate courses can only be selected only on the basis of inter-se academic merit and any other method of selection, is therefore, by necessary application, forbidden and also took a stand that inasmuch as the State Regulation has attempted to introduce another method of selection which has the effect of subverting the Medical Council of India Regulations, the impugned Enactment was passed and of course, the Kerala High Court has agreed that the admission to the Post Graduate Courses can be made only on the basis of inter-se seniority of the candidates who appeared in the Common Entrance Examination. But, at the same time, thought fit to issue a direction for selection of in-service medical officers also. The Hon'ble Supreme Court, after taking note of Adhiyamans's case reported in 1995 [4] SCC 104i, Gopal D.Trithani's case reported in 2003 [7] SCC 83 ; Dr.Preeti Srivatsava's case reported in 1999 [7] SCC 120 and yet another two decisions, had considered the scope of Entry 66 of List I and Entry 25 of List III, had held as follows:-
....
24.It is in the light of the above pronouncements futile to argue that the impugned legislation can hold the field even when it is in clear breach of the right in holding that inasmuch as the provisions of section 5[4] of the Impugned Enactment provides a basis for selection of candidates different from the one stipulated by the MCI Regulations it was beyond the legislative competence of the State Legislature. Having said that, the High Court adopted a reconciliatory approach when it directed that seniority of the in-service candidates will continue to play a role provided the candidates concerned have appeared in the Common Entrance Test and secured the minimum percentage of marks stipulated by the Regulations. The High Court was, in our opinion, not correct in making that declaration. That is because, even in Gopal D.Trithani case, this Court has allowed in-service candidates to be treated as a separate channel for admission to Post Graduate Course within that category also admission can be granted only on the basis of merit. A meritorious in-service candidate cannot be denied admission only because he has an eligible senior above him though lower in merit. It is now fairly well settled that merit and merit alone can be the basis of admission among candidates belonging to any given category. In-service candidates belong to one category. Their inter se merit cannot be overlooked only to promote seniority which has no place in the scheme of the MCI Regulations. That does not mean that merit based admissions to in-service candidates, cannot take into account the service rendered by such candidates in rural areas. Weightage for such services permissible while determining the merits of the candidates in terms of the third proviso to Regulation 9 [supra]. Suffice it to say that Regulation 9 remains as the only effective and permissible basis for granting admission to in-service candidates, provisions of section 5[4] of the impugned Enactment notwithstanding. That being so, admissions can and ought to be made only on the basis of inter-se merit of the candidates determined in terms of the said principle which give no weightage to seniority simpliciter. 65 In the decision reported in 2016 [9] SCC 749 -Dinesh Singh Chauhan's case, the very scope of legality of the proviso to Clause IV of the Regulation 9 of the Post Graduate Medical Education Regulations, 2000, came up for consideration and whatever points urged herein by the respective learned counsel for the appellants were urged in the said case also. The Hon'ble Supreme Court of India has taken into consideration the decisions in Sudhir's case, Dr.Preeti Srivatsava's case and Satyabratha Sahoo Vs. State of Orissa reported in 2012 [8] SCC 203 and other decisions and has formulated the following question for determination, viz., whether the High Court exceeded its jurisdiction in setting aside the Government Order dated 28.12.2014, providing for reservation to in-service candidates, when the writ petition filed by the in-service candidates was limited to equate them with the in-service candidates who had experience of working in remote or difficult areas. The High Court of Judicature at Allahabad, in the judgment which was the subject matter of appeal before the Apex Court by placing reliance on the decision of the Apex Court, opined that it would not be permissible in law for the State Government to provide reservation for in-service candidates in Post Graduate Degree courses in violation of Regulation 9. The Hon'ble Supreme Court of India, in paragraphs No.10 and 19 of the judgment, observed that concededly, the action taken on the basis of such a void Government Order, would be nothing short of a nullity in law. The Apex Court after extracting Regulation 9 of the Post Graduate Medical Education Regulation, 2000, in paragraphs No.27 and 29 held as follows:-
....
27.Thus, understood, the Central enactment and the regulations framed thereunder do not provide for reservation for in-service candidates in Post Graduate degree Courses. As there is no express provision prohibiting reservation to in-service candidates in respect of admission to Post Graduate degree courses, it was contended that providing for such reservation by the State Government is not impermissible in law. Further, there are precedents of this Court to suggest that such arrangement is permissible as a separate channel of admission for in-service candidates. This argument does not commend to us. In the first place, the decisions pressed into service have considered the provisions regarding admission process governed by the regulations in force at the relevant time. The admission process in the present case is governed by the Regulations which have come into force from Academic Year 2013-14. This Regulation is a self- contained Code. There is nothing in this Regulation to even remotely indicate that a separate channel for admission to in-service candidates must be provided, at least in respect of Post Graduate Degree Courses. In contradistinction, however, 50% seats are earmarked for the Post Graduate Diploma Courses for in-service candidates, as is discernible from Clause (VII). If the Regulation intended a similar separate channel for in- service candidates even in respect of Post Graduate Degree Courses, that position would have been made clear in Regulation 9 itself. In absence thereof, it must be presumed that a separate channel for in-service candidates is not permissible for admission to Post Graduate Degree Courses. Thus, the State Government, in law, had no authority to issue a Government Order such as dated 28th February 2014, to provide to the contrary. Hence, the High Court was fully justified in setting aside the said Government Order being contrary to the mandate of Regulation 9 of the Regulations of 2000, as applicable from Academic Year 2013-14.
.....
29.In the present case, we have held that providing 30% reservation to in-service candidates in Post Graduate Degree Courses is not permissible. It does not however, follow that giving weightage or incentive marks to in-service candidates for Post Graduate Degree Courses entails in excessive or substantial departure from the rule of merit and equality. For, Regulation 9 recognizes the principle of giving weightage to in-service candidates while determining their merit. In that sense, incentive marks given to in-service candidates is in recognition of their service reckoned in remote and difficult areas of the State, which marks are to be added to the marks obtained by them in the NEET. Weightage or incentive marks specified in Regulation 9 are thus linked to the marks obtained by the in-service candidate in the NEET and reckon the commensurate experience and services rendered by them in notified remote/difficult areas of the State. That is a legitimate and rational basis to encourage the Medical Graduates/Doctors to offer their services and expertise in remote or difficult areas of the State for some time. Indisputably, there is a wide gap between the demand for basic health care and commensurate medical facilities, because of the inertia amongst the young doctors to go to such areas. Thus, giving specified incentive marks (to eligible in-service candidates) is permissible differentiation whilst determining their merit. It is an objective method of determining their merit. 66 The Apex Court also taken into consideration Gopal D.Trithani's case reported in 2003 [7] SCC 83 and found that the Medical Council of India itself has framed a regulation predicating one Merit List by adding weightage marks [remote and difficult areas] assigned to in-service candidates for determining merit in NEET. The Hon'ble Supreme Court of India in the said decision also framed a crucial question in paragraph No.34 that whether the norm specified in Regulation 9 regarding incentive marks, can be termed as excessive and unreasonable? and held that Regulation 9, as applicable, does not permit preparation of two Merit Lists as predicated in Trithani's case [2003 [7] SCC 83]. Regulation 9 is a complete Code. It prescribes basis for determining the eligibilities of the candidates including the method to be adopted for determining inter-se merit on the basis of one Merit List of candidates appearing in NEET including by giving commensurate weightage of marks to the in-service candidates.
67 It is also the submission of Mr.P.Wilson, learned Senior Counsel appearing for the appellants in WA.Nos.498, 499 and 537 to 546/2017 that the procedure for weightage of marks in NEET is almost impracticable and the State Government in the Prospectus has restricted the marks to a maximum of 10 and it will be advantageous to doctors who are serving in remote/difficult/hilly areas. The mode of awarding marks in NEET is also discussed in the above cited judgment in paragraph No.35 and it has been held that this provision has been brought into force in larger public interest and not merely to provide institutional preference or for that matter to create separate channel for in-service candidates much less reservation. It is unfathomable as to how such a provision can be said to be unreasonable or irrational. The Apex Court also distinguished Satyabrata Sahoo's case reported in 2012 [8] SCC 203 and in paragraphs No.37 and 38, held that in the said case that the challenge of direct candidates was about allowing in-service candidates to compete for seats earmarked for direct category by giving weightage of marks. However, in the present case, there is no separate channel for two categories in respect of Post Graduate degree courses and Regulation 9[2] and proviso to Clause IV of Regulation 9 in force, corresponding to the third proviso to Regulation 9[2] as interpreted, is in the nature of giving additional marks as incentive to in-service candidates, commensurate with the length of service notified as remote/difficult areas in the State and also dependent on marks obtained by them in NEET. In paragraph No.39, it is observed by the Hon'ble Supreme Court of India that ..... Regulation 9 is a complete Code by itself and ....... any law with regard to that will be beyond legislation and competence of the State Legislature and in paragraph No.42, further observed that .... authorities are, therefore, oblige to continue with the admission process strictly in conformity with Regulation 9. The Hon'ble Apex Court in paragraph No.4 of the above cited decision, observed that considering the above, the inescapable conclusion is that the procedure evolved in Regulation 9 in general and proviso to Clause [IV] in particular, is just, proper and reasonable and also fulfills test of Article 14 of the Constitution of India being in larger public interest. The Apex Court having taken note of the fact that admission was already completed in respect of the academic year 2015-2016, moulded the relief and directed all concerned to follow the admission process for the academic year 2016-17 and onwards strictly in conformity with the Regulations in force governing the procedure for selection of candidates for Post Graduate Medical degree courses and including determination of relative merit of the candidates who had appeared in NEET by giving weightage of incentive marks to eligible in-service candidates. 68 In the considered opinion of the Court, the Dinesh Singh Chauhan case [cited supra], reported in 2016 [9] SCC 749, gives a complete answer to the points/grounds urged by the respective learned counsel for the appellants. It is to be noted at this juncture that the said judgment came to be delivered on 16.08.2016 and is also reported and despite the finding has been given as to the mandatory nature of Regulation 9 of Post Graduate Medical Education Regulation, 2000, the appellants in WA.No.484/2017, for the reasons best known to them and in ignorance and in violation of law laid down by the Hon'ble Supreme Court of India, had issued a Government Order, which is purely administrative in nature, based on which, issued the Prospectus for admission of students to Post Graduate Degree and Diploma courses for the academic session 2017-18.
69 In the light of the above said attitude exhibited by the appellants in WA.No.484/2017 / respondents in WP.No.6031/2017, it is relevant to consider the decision rendered by the Apex Court reported in 2014 [1] SCC 552 [Aneesh D.Lawande and others Vs. State of Goa and others]. The facts leading to the said case would reveal among other things, that the State of Goa had framed a set of rules, viz., Goa [Rules for Admission to Post Graduate Degree and Diploma Courses of the Goa University at the Goa Medical College] Rules, 2004 and the said rules governs admission to the Medical as well as Dental Colleges-Government Colleges affiliated to Goa University. In pursuant to which, the students / candidates had also appeared in NEET held in November December 2012 for the Medical courses as well as for the Dental courses and subsequently, results were announced and the writ petitioners who secured ranks which entitled them to be admitted to the Post Graduate Courses in various streams in the State of Goa. The High Court of Mumbai at Goa had entertained the writ petition filed by the students who have failed in NEET and passed an interim order, directing the respondents to hold Counselling in respect of both categories of students and permit admissions to students who have passed NEET subject to further orders to be passed by the Hon'ble Supreme Court. The writ petitions were transferred to the file of the Apex Court and in the interregnum, some events took place and as a result, candidates who had qualified in NEET examination and had been admitted, were compelled to leave the College and the students who were qualified under the above said rules were admitted and therefore, challenge was made before the Hon'ble Supreme Court of India by invoking Article 32 of the Constitution of India. It is relevant to extract the Preface in paragraph No.3, which reads thus:-
3.We have begun with such a prefatory note and referred to the aforesaid pronouncements as the facts, as have been uncurtained, would shock one's conscience. A deliberate labyrinth which not only assasults the majesty, sanctity and purity of law, but also simultaneously creates a complex situation as far as possible so that there is some sanguine cathartic effect. 70 The Hon'ble Supreme Court of India noted with anguish that the State of Goa in spite of the order passed, took a decision on 25.07.2013 to cancel the provisional admission given to the students on the basis of NEET merit examination and made the following observations:-
24......The act indubitably shows total lack of prudence. The authorities in the Government are required to understand that the basic governance consists in the act of taking considered, well vigilant, appropriate and legal decisions. It is the sacrosanct duty of the Government to follow the law and the pronouncements of the Court and not to take recourse to such subterfuges. The Government should have reminded itself the saying of Benjamin Disraeli:-
I repeat that all power is a trust that we are accountable for its exercise that, from the people and for the people, all springs, and all must exist.
25.It may not be out of place to state here that every public authority has a duty coupled with power. Before exercising the power one is required to understand the object of such power and the conditions in which the same is to be exercised. Similarly, when one performs public duty he has to remain alive to the legal position and not be oblivious of it. In this context, we may refer to the authority in Superintending Engineer, Public Health, U.T. Chandigarh and others v. Kuldeep Singh and others[5] wherein the Court has reproduced the observations of Farl Cairns L.C. in the House of Lords in Julius v. Lord Bishop of Oxford[6] which was quoted with approval by this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji[7]. The succinctly stated passage reads thus: -
There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. But, unfortunately, here the authorities of the State Government have felt courageous enough to play possum and proceeded to crucify the fate of the candidates who had been protected by the verdict of this Court. Such an action is absolutely impermissible. Thus analysed the letter dated 25.7.2013 deserves to be lancinated and we so do. The writ petitioners, who have been admitted on the basis of the NEET examination, shall be allowed to prosecute their studies. 71 As rightly pointed out by Mr.Vijay Narayan, learned Senior Counsel assisted by Mr.V.P.Raman, learned Standing counsel appearing for MCI, despite repeated pronouncements made by the Hon'ble Supreme Court of India as to the primacy of the Medical Council of India in respect of medical education, some of the State Governments had chose to ignore the same and framed their own guidelines in total contravention and violation of the mandatory statutory regulations framed under the Indian Medical Council Act, 1956 and issuance of the Government Order and the formulation of the Prospectus by the third appellant in WA.No.484/2017 is one such instance.
72 The appellants are expected to abide by the statutory rules and regulations and are bound by the orders passed by the Apex Court which is the law declared under under Article 142 of the Constitution of India and for the best of reasons, had ignored it and also seek to justify their stand on the ground of sentiments and sympathy and for the present piquant situation, they are alone to be blamed.
Contention-[d] 73 The Hon'ble Mr. Justice S.M.Subramaniam had taken note of various decisions of the Hon'ble Supreme Court of India, especially, the decision reported in 2015 [6] SCC 685 [Sudhir's case] and the decision reported in 2016 [9] SCC 749 [Dinesh Singh Chauhan's case] and had held that Clause Nos.16, 17 and 33[b] of the Prospectus are declared inconsistent / repugnant to Regulation 9 of the Post Graduate Medical Education Regulations, 2000. Though the learned Judge in paragraph No.68 of the order observed that in-service candidates are bound to get the benefit of the incentive marks, it is to be observed that the term in-service candidates is referable to the candidates who are serving in remote/hilly/difficult areas as per the proviso to Regulation 9[IV]. This Court, in the earlier paragraphs had pointed out that the first appellant thought fit to define the words hill/remote/difficult areas and the identification of the place as well as the non-inclusion of the medical officers serving in rural areas which is the subject matter of challenge in WA.Nos.506 & 527/2017 and felt that counter affidavit is to be filed by the State Government justifying the identification of the areas. Insofar as rural areas is concerned, this Court had taken note of the fair submission made by Mr.T.N.Rajagopalan, learned Special Government Pleader on instructions that the doctors who are serving in Primary Health Centres in Rural areas, will be considered under the category and strictly in accordance with the Prospectus insofar as defining and identification of the said areas are concerned. The said submission is placed on record.
74 It is to be noted at this juncture that the crucial date expires on 07.05.2017 and in the event of holding that the said identification is not in consonance with the said proviso, it may create hardships to the successful candidates who had cleared NEET and even otherwise, the proviso gives discretion to the State Government / competent authority to define remote and difficult areas and to that extent, the said identification for the academic session 2017-2018, warrants no interference.
75 The result of the above said discussions / findings is that the appellants are bound to strictly follow and implement Regulation 9 and more particularly, Regulation 9[IV] and proviso therein and ensure full compliance.
76 This Court, on an exhaustive analysis and thorough consideration and appreciation of the materials placed before it and also on independent application of mind, is of the considered opinion that the directions given in the judgment dated 03.05.2017 of the Hon'ble Mr. Justice S.M.Subramaniam, are in consonance with the settled legal position except with regard to identification of hilly and remote/difficult areas for the reasons assigned in paragraph No.74.
77 In the result, W.A.Nos.453, 484, 490, 491, 498, 499, 536 and 537 to 546 of 2017 are dismissed and the directions issued / moulded reliefs granted by the Hon'ble Mr. Justice S.M.SUBRAMANIAM, in paragraph No.71 of the common Judgment dated 03.05.2017, except with regard to identification of hilly and remote / difficult areas done by the appellants in WA.No.484/2017 in terms of proviso to Regulation 9[IV] of the Post Graduate Medical Education Regulations, 2000; are to be implemented forthwith. W.A.Nos.506 and 527 of 2017 are de-linked. No costs. Consequently, the connected miscellaneous petitions are also dismissed.
78 This Court place it on record, the valuable assistance rendered by the respective Senior Advocates and Counsels appearing for the parties, enabling it to give this verdict at the shortest possible time.
06.05.2017 Index : No Internet : Yes AP/JVM To
1.The Principal Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai-9.
2.The Director, Directorate of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai-600 010.
3.The Secretary, Selection Committee, Directorate of Medical Education, 162, EVR Periyar Salai, Kilpauk, Chennai-600 010.
4.The Secretary, The Medical Council of India, Pocket -14, Sector-8, Dwarka Phase-I, New Delhi-110 077.
M.SATHYANARAYANAN, J.
AP/JVM Common Judgment in W.A.Nos.453, 484, 490, 491, 498, 499, 506, 527, 536 and 537 to 546 of 2017 06.05.2017 http://www.judis.nic.in