Madras High Court
Dr.Preethiswary S vs Dr.G.Kamaleshwaran
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON :: 02.05.2017 DELIVERED ON : 03.05.2017 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN AND THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM 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 versus 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 Writ Appeal filed against the order passed by this Court dated 20.03.2017 passed in W.P.No.6094 of 2017. Appearance :- Mr.Manishankar, A.A.G, Assisted by Mr.T.N.Rajagopalan, Spl.G.P. ... For State Government in all Writ Appeals. Mr.P.Wilson, Senior counsel, for M/s.K.P.Narayanan ... appellant in W.A.No.498 & 499 of 2017 and 537 to 546 of 2017 Mrs.G.Thilagavathy for M/s.K.V.Sanjeev Kumar ... appellant in W.A.No.506 / 2017 and Mrs.Bhavani Subbaroyan ... appellant in W.A.No.527 / 2017 Mr.L.Chandrakumar ... appellant in W.A.No.536 of 2017 Mr.G.Sankar ... appellant in W.A.No.490 of 2017 Mr.Vijay Narayan, Senior counsel for Mr.V.P.Raman ... Medical Council of India in all writ appeals Mr.G.Justin ... 1st respondent in all W.As. Mr.P.Godson Swaminath ... Implead petitioner in W.A.484/17 C.M.P.No No.7461 of 2017 Mr.N.Surya Senthil ... appellant in W.A.No.453 of 2017 Mr.R.N.Amarnath ... appellant in W.A.No.491/2017 COMMON JUDGMENT
K.K.SASIDHARAN, J.
Introduction:-
(a) The Hon'ble Supreme Court, taking into account the factual position that provision in the form of grant of weightage marks was introduced to give incentive to the in-service candidates and to attract more graduates to join as medical officers, in the health sector and more particularly in rural areas and that such incentives is just, proper and reasonable and fulfills the test of Article 14 of the Constitution being in larger public interest, made the following observation relating to service in remote and difficult areas, on 16 August 2016, in State of Uttar Pradesh and others vs. Dinesh Singh Chauhan (2016 (9) SCC 749) :
To determine the academic merit of candidates, merely securing high marks in NEET is not enough. The academic merit of the candidate must also reckon the services rendered for the common or public good. Having served in rural and difficult areas of the State for one year or above, the incumbent having sacrificed his career by rendering services for providing health care facilities in rural areas, deserve incentive marks to be reckoned for determining merits.
(emphasis supplied)
(b) The methodology adopted by the State for reckoning the services rendered by the Doctors in the remote and different areas for awarding incentive marks is the subject matter of this litigation.
The core issue :-
2. Whether the State Government has the authority to issue any executive order identifying the remote and difficult areas for the purpose of granting weightage by incentive marks for admission to Post Graduate Courses and fixing marks for service in the Government hospitals in such areas, notwithstanding the post graduate Medical Regulations, 2000, issued by the Medical Council of India (hereinafter referred to as MCI), indicating a different methodology for award of incentive marks by weightage is the core issue that arises for determination in these batch of Writ Petitions, posted before us during summer vacation, pursuant to the request made by all the parties, in view of the deadline fixed for completion of selection process for admission to Post Graduate Course, for the academic year 2017-18.
3. Background of the litigation :-
(a) The First respondent in the intra court appeals in W.A.No.484 of 2017 etc. batch filed a Writ Petition in W.P.No.6031 of 2017 for issuance of a Writ of Mandamus to the Director of medical Education and Selection Committee constituted for admission to the Post Graduate Courses, to implement Regulation 9(IV) of the Post Graduate Medical Education Regulations, 2000 (hereinafter referred to as P.G. Regulations) by adding weightage marks for his medical service in a hilly area, with the marks obtained in National Eligibility cum Entrance Test, (NEET), for admission to Post Graduate Course against the 50% reserved category for in-service candidates for the academic year 2017-18.
(b) The first respondent in the intra court appeal in W.A.No.453 of 2017 filed W.P.No.6094 of 2017, challenging the Government Order in G.O.Ms.No.29 dated 8 February 2017 issued by the Government of Tamil Nadu adding more areas to the list of backward, rural, hilly and remote areas and the grant of weightage marks to the medical officers, working in those areas for admission to the Post Graduate Course for the academic year 2017-18. Before the writ Court, the Secretary to Government, made a written assurance that weightage marks would be awarded taking into account the areas declared in the prospectus for the year 2016-17 and that the Government Order in G.O.Ms.No.29 dated 8 February 2017 would be kept in abeyance. The learned Single Judge recorded the said submission and disposed of the Writ Petition in W.P.No.6094 of 2017 along with 14 other Writ Petitions. The order dated 20 March 2017 in W.P.No.6094 of 2017 is challenged in W.A.No.453 of 2017.
(c) The learned Single Judge allowed the Writ Petition in W.P.No.6031 of 2017 holding that the State cannot make any law in conflict with the regulations framed by M.C.I. The learned Judge observed that the Post Graduate Regulations would hold good for the Post Graduate Admission 2017-18 and weightage marks should be given in accordance with the proviso to regulation 9(iv) and not in the light of the methodology indicated in the prospectus issued by the Directorate of Medical Education for the year 2017-18. The learned Judge made it clear that Regulation 9 is the only effective and permissible basis for granting admission to in-service candidates. The learned Judge directed the Selection Committee to award 30% marks to the Writ Petitioner by way of weightage.
4. Summary of submissions:-
(a) The learned Additional Advocate General appearing on behalf of the appellants in W.A.No.453 of 2017 contended that there is no conflict between the Post Graduate Regulations framed by the MCI and the method adopted by the State Government for the grant of incentive marks. According to the learned Additional Advocate General, the Government of Tamil Nadu has been giving incentive marks for in-service candidates taking into account their rural service at least from the year 1992. The system worked well all these years. According to the learned Additional Advocate General, the first respondent in the appeal failed to challenge the prospectus issued by the Government. The learned Single Judge, notwithstanding the fact that there was no challenge to the prospectus in the writ petition made sweeping observations about the validity of the prospectus. The learned Additional Advocate General further contended that inspite of the fact that the first respondent is not entitled for incentive marks in accordance with the Regulations issued by the MCI or the State, still, a mandamus was issued to award him weightage marks. The learned Additional Advocate General placed reliance on the judgment of the Constitutional Bench in Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others [(2016) 7 SCC 353] and contended that the scope of Entry 66 must be construed limited to its actual sense of "determining the standards of higher education"and not of laying down admission process.
(b) The learned Senior Counsel for the appellants in W.A.Nos.498 and 499 of 2017 took us through the prospectus, the judgment in Modern Dental College and Research Centre (cited supra) and a Full Bench decision in Dr.Murari vs. Dr.R.Kamalakannan, (1999 (3) CTC 675), and contended that since there was no challenge to the prospectus, the learned Single Judge ought to have dismissed the writ petition. The learned Senior Counsel contended that the Doctors were given a promise that they would be given incentive marks and as such, the State is bound to adhere to its promise, as otherwise, it would be a violation of the principle of legitimate expectation. The learned Senior Counsel further contended that the State is well within its powers under Entry 25 List III to evolve a method for awarding incentive marks. It was contended that the Proviso to Regulation 9 (iv) is illustrative and not exhaustive and as such, it has to be read harmoniously with the method adopted by the State for giving weightage marks.
(c) The learned counsel for the appellant in W.A.No.490 of 2017 contended that the learned Single Judge failed to take into account Section 10(D) of the Indian Medical Council Act, which was enacted after reviewing the judgment reported in 2014 (2) SCC 305.
(d) The learned counsel for the appellant in W.A.No.536 of 2017 contended that the State has not violated the MCI Regulation, by adopting the method for giving weightage marks. According to the learned counsel, 90% of the weightage marks would cover the marks obtained in NEET and as such, the norms adopted by the State is not violative of the MCI Regulations.
(e) The learned Senior Counsel for the appellant in W.A.No.527 of 2017 contended that the State was perfectly correct in fixing the incentive marks. According to the learned Senior Counsel, benefit should be given to all the candidates, taking into their service in the rural areas and it should not be limited to the remote and difficult areas indicated in the MCI Regulations.
(f) The learned counsel for the appellant in W.A.No.491 of 2017 adopted the arguments of the appellants in W.A.Nos.498 and 499 of 2017.
(g) The learned Senior Counsel for MCI contended that the prescription in the prospectus issued by the State giving reservation to in-service candidates is in violation of the MCI Regulations prescribing reservation only for the Diploma Course. The learned Senior Counsel contended that the Supreme Court time and again held that the MCI is the only authority to frame Regulations and norms in the field of Medical Education. The learned Senior Counsel submitted that Government of Tamil Nadu issued the prospectus in question in total violation of the Medical Council of India norms and as such, those clauses are all liable to be set aside. The learned Senior Counsel further contended that the prospectus proceeds as if one mark would be given to the service as well as non-service candidates, which is not contemplated in the Regulation framed by the MCI. The learned Senior Counsel contended that the prospectus to the extent it violated the norms prescribed by the MCI is liable to be quashed.
(h) The learned counsel for the impleaded parties in W.A.No.484 of 2017 adopted the arguments advanced on behalf of the Medical Council of India. According to the learned counsel, the State erred in framing a policy in total violation of the Regulations framed by the Medical Council of India.
(i) The learned counsel for the first respondent in W.A.No.484 of 2017 contended that there is no need to challenge the prospectus in view of the settled legal position that the State Government is not given power to evolve a method for awarding incentive marks, in case, there is a Regulation issued by the MCI for the very same purpose. The learned counsel contended that the first respondent in the respective writ petitions filed the writ petition in W.P.No.6031 of 2017 as he is entitled to 30% marks on account of his service in a hilly area. The learned counsel justified the direction given by the learned single Judge.
(j) The learned counsel for the appellant in W.A.No.453 of 2017 contended that the Government was not correct in keeping the Government Order in G.O.Ms.No.29 dated 8 February, 2017 in abeyance. The learned counsel contended that the appellants are also entitled to claim incentive marks in view of the Government Order in G.O.Ms.No.29. Since the Government Order is now kept in abeyance, the appellants are denied of an opportunity to take part in the selection process for admission to the Post Graduate medical course in the notified category.
5. The individual issues :-
1.Whether the Writ Petition filed by the first respondent in W.A.No.498 of 2017 and other connected Writ appeals is maintainable without challenging the Government regulation awarding incentive marks as indicated in the prospectus for 2017-18;
2.Whether the method evolved by the State Government for giving weightage for service in remote and difficult areas by way of incentive marks is in conflict with the method prescribed by the Medical Council of India in the Post Graduate Admission Regulations, 2000.
6. Resolution of issues:-
The State is enjoined to take steps for the welfare of its people taking into account the constitutional mandate. The state is expected to provide medical facilities to the poor and downtrodden people, living in hilly, tribal, backward, remote, rural and difficult areas. The right to live a healthy life is now elevated to a right guaranteed under Article 21 of the Constitution of India. The medical officers appointed by the State in its medical service were reluctant to go to the villages and more particularly in tribal and hilly areas for rendering medical service. In cities, better work environment and facilities are available and this luxury culture prompted many a medical professionals to settle down in municipal areas and metropolitan cities. This situation made the Central Government and States to evolve a method to attract talents to the rural India. The Government both at the Centre and States felt that grant of weightage marks for discharging medical service in rural, backward, hilly and tribal areas would enable the medical professionals, gain experience and better opportunity to secure admission for post graduate course. The decision to grant incentive marks for rural service was the result of such serious thinking.
7. The Hon'ble Supreme Court in Snehelata patnaik vs. State of Orissa, 1992(2) SCC 26, suggested the States to consider giving weightage up to a maximum of 5% in favour of in-service candidates who have done rural service for five years or more.
8. The State of Tamil Nadu has been the pioneer in identifying the rural, hilly and difficult areas and giving incentive for service in the primary health centres and hospitals in such areas. The State Government from time to time took policy decisions to award weightage marks as an incentive for rural practice, so as to encourage the medical professionals to join the posts and thereafter to secure admission in Post Graduate Course by making use of the weightage marks.
9. The Government of Tamil Nadu has been issuing orders giving incentive marks every year since 1992. Subsequently, in the year 2007, the Government has issued a comprehensive order in G.O.Ms.No.456 Health and Family Welfare Department, dated 19 December 2007, indicating the Government Policy for admission to Post Graduate Medical and Allied Courses. As per the Government Order, merit list would be drawn for a total mark of 100 by computing the entrance examination marks viz., 90 marks and adding 10 marks for experience. The Government Order shows that Two marks for each year of Government service in hilly areas to a maximum of five years, restricting to a total of 10 marks would be given to encourage service in hilly areas.
10. The Government as per the order in G.O.Ms.No.332 dated 24 December 2010, provided for awarding 2 marks for each year of Government service to the Doctors, who works in the Government Hospitals, Government Primary Health Centres and Government Medical Centres at Nagapattinam, Tiruvarur and Ramanathapuram District, subject to a maximum of 10 marks.
11. The Director of Medical Education appears to have recommended to the State Government to take a decision for awarding two marks in each year of Government service to the doctors who work in the newly started medical colleges, during its initial years of establishment in order to improve the faculty strength and motivate the doctors working in the newly established colleges, except the medical college at Chennai.
12. The Ministry of Health and Family Welfare Services, Government of India, vide letter dated 8 December 2014, requested the State Government to identify, demarcate and notify areas into urban, rural, difficult and remote in the State of Tamil Nadu, to provide better health care facilities.
13. The Government of Tamil Nadu taking into account the need to provide incentive to doctors, opting for rural service and in response to the request made by the Government of India, issued an order in G.O.Ms.No.29, Health and Family Welfare Department, dated 8 February 2017, notifying the rural, hilly, remote and difficult areas for awarding bonus marks to service candidates.
14. In the meantime, Medical Council of India issued a notification amending Clause 9 of the Post Graduate Medical Education Regulation, 2000. The MCI added a proviso to Sub Clause IV of Clause 9, and issued the notification dated 15 February 2012. It reads thus:-
Provided that in determining the merit of candidates who are in service of Government/ public authority, weightage in the marks may be given by the Government/ Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and /or difficult areas up to the maximum of 30% of the marks obtained in National Eligibility cum Entrance Test. The remote and difficult areas shall be as defined by State Government/ Competent Authority from time to time.
15. It is the admitted case of the parties that even after the introduction of the proviso to sub clause IV of Clause 9, incentive marks were given to the inservice candidates in the State of Tamil Nadu in accordance with the earlier Government Orders and the last Government Order in G.O.Ms.No.332 dated 24 December 2010. The system worked very well without any complaint from the applicants for admission to the Post Graduate courses.
The First Issue - Maintainability of Writ Petition
16. There was no challenge to the method adopted by the State Government for giving weightage by incentive marks for remote and difficult area service. The Government Policy is reflected in the prospectus issued by the Directorate of Medical Education. The first respondent in W.A.No.498/2017 filed only a writ of mandamus to direct the Selection Committee to award him marks in accordance with the Post Graduate Admission Regulation 2000 issued by MCI. The first respondent, who filed the writ petition was well aware that there was a method evolved by the State for awarding weightage marks which was in operation all these years and the same was reflected in the Prospectus for 2017-18 also. He failed to challenge the vires of the State Regulation prescribing a method different from the method prescribed by MCI, for awarding incentive marks. The Selection Committee constituted by the Government is only an implementing agency of the policy adopted by the State. There was no legal right to the first respondent in W.A.No.498/2017 to direct the Selection Committee to award marks in accordance with MCI Regulations without challenging the method adopted by the State. Similarly, there was no corresponding duty on the part of the Selection Committee to follow the method suggested by MCI in view of the method adopted by the State. The mandatory condition for issuing a writ of Mandamus, was not satisfied by the first respondent in the writ appeal in W.A.No.498 of 2017. This fundamental defect was not taken note of by the learned single Judge. The learned single Judge without there being a challenge to the method evolved by the State by adopting a policy, issued a mandamus to the Selection Committee to follow the method prescribed under the MCI Regulations. It is a matter of record that even while issuing the writ to award marks as per MCI Norms, the learned single Judge has not quashed the State norms for awarding incentive marks. We are therefore of the view that the learned single Judge ought to have dismissed the writ petition filed for a Writ of Mandamus without there being a challenge to the policy adopted by the State and indicated in the prospectus. The first issue is therefore decided againt the first respondent in the intra court appeals.
17. Even after holding that the writ petition filed by the first respondent in W.A.No.498 of 2017 is legally not maintainable, we are constrained to deal with the merits of the matter in view of the cut-off date prescribed for completing the admission process and to give a quietus to the issue raised in the matter.
Second issue :-
Whether State Regulation is violative of MCI Norms:-
18. The Director of Medical Education, issued the prospectus for the year 2017-18, indicating the methodology for the award of incentive marks for in-service candidates. The prospectus was in the same line, as issued in all these years.
19. The learned Single Judge placed reliance on the judgment in State of Uttar Pradesh vs. Dinesh Singh Chauhan, 2016(9) SCC 749, and issued a Writ of Mandamus.
20. (a) In Dinesh Singh Chauhan, two issues were raised before the Hon'ble Supreme Court. The first issue was regarding the authority of the State to frame rules or to issue executive order to provide for reservation in Post Graduate Degree courses, contrary to the statutory regulation framed by the MCI. The other issue was whether the proviso to sub clause IV of Clause 9 would operate as a reservation in favour of in-service candidates.
(b) The Hon'ble Supreme Court held that providing 30% representation to in-service candidates in Post Graduate Degree Course is not permissible
(c) The third proviso inserted to the Regulation 9(iv) which envisages that in determining the merit, weightage may be given at 10% marks obtained for each year in service in remote or difficult areas, up to the maximum of 30% marks obtained in the common examination by the candidates was upheld. The Supreme Court observed that the said regulation does not envisage reservation of seats for the post graduate courses, unlike the express provision, which is made in the same regulation to provide reservation of seats for in-service candidates in Diploma Course.
21. The issue raised before us regarding the methodology adopted by the State in the matter of awarding incentive marks was not an issue in Dinesh Singh Chauhan.
22. Since the methodology adopted by the State for giving weightage in the form of incentive marks vis-a-viz the proviso to sub Clause IV of Clasue 9 was not an issue earlier, we are inclined to consider as to whether the method prescribed by the State would run counter to the norms evolved by the Medical Council of India.
23. The Hon'ble Supreme Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradsh and ors., 2016(7) SCC 353, considered the scope of State legislation to deal with the subject of admission in professional educational institutions. The Hon'ble Supreme Court on a comparison of list I entry 66 and List III Entry 25, observed that State legislatures are given powers in other facets of education including medical education, notwithstanding the power given to the Central Government under List I, Entry 66 to lay down a uniform method of minimum standards of education for the nation. The Supreme Court further observed that field covered by List III Entry 25 is wide enough and as circumscribed to the limited extent of it being subject to List I, entries 63, 64, 65 and 66.
24. The Hon'ble Supreme Court in State of Tamil Nadu vs. Adhiyaman Educational and Search Institute 1995(4) SCC 104, held that, whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.
25. There is no dispute that norms of admission have a bearing on the standard of education. This was indicated by the Hon'ble Supreme Court in Preeti Srivatsava vs. State of Madhya Pradesh, (1999(7) SCC 120). Therefore, the question is whether the method evolved by the State would amount to lowering the set of norms laid down by the Medical Council of India.
26. In Modern School (supra), Banumathi, J., in her Lordship's concurring judgment, made it clear that scope of Entry 66 must be construed limited to its actual sense of it determining the standards of higher education and not laying down admission process. (emphasis supplied). It was further observed that in no case is the State denuded of its power to legislate under List III Entry 25 and more so, pertaining to the admission process in universities imparting higher education. The following observation indicates the beneficial role to be played by the State in the process of admission.
I have no hesitation in upholding the vires of the impugned legislation which empowers the state government to regulate admission process in institutions imparting higher education within the state. In fact, the State being responsible for welfare and development of the people of the State, ought to take necessary steps for welfare of its student community. The field of higher education being one such field which directly affects the growth and development of the state, it becomes prerogative of the State to take such steps which further the welfare of the people and in particular pursuing higher education. In fact, the State Government should be the sole entity to lay down the procedure for admission and fee etc. governing the institutions running in that particular state except the centrally funded institutions like IIT, NIT etc. because no one can be a better judge of the requirements and inequalities-in-opportunity of the people of a particular state than that state itself. Only the State legislation can create equal level playing field for the students who are coming out from the State Board and other streams.
27. The Post Graduate Medical Regulation 2000 provides for reservation of seats in medical colleges for reserved categories as per the applicable laws prevailing in the States or Union Territories. This reservation as observed by the Supreme Court in Dinesh Singh Chauhan is obviously with reference to reservation as per the constitutional scheme for the Scheduled caste and Schedule tribe or other backward class communities. The Proviso appended by amendment in 2012, after Clause 9 (iv) is to identify the remote and difficult area for giving weightage as an incentive. The State is given the task of locating and notifying the remote and difficult areas for giving incentive marks for admission to Post Graduate Courses.
28. The Proviso was inserted by MCI by Notification dated 15 February, 2012. Thereafter, the Ministry of Health and Family Welfare, Government of India by letter dated 10 March, 2015 made a request to the State of Tamil Nadu to identify and notify areas into Urban, Rural, difficult and remote in the State. Accordingly, the Government identified areas and published a notification.
29. The Central Government adopted measures to make up the extreme shortage of qualified and skilled Doctors for health care in rural areas. The award of incentive marks at the rate of 10% each year in service in remote and difficult areas upto the maximum of 30% of the marks obtained in the NEET was the method introduced by MCI to address the issue. The State of Tamilnadu on the other hand has been giving weightage in the form of incentive marks by adopting another method for the past more than 25 years. The State of Tamilnadu and State of Odisha, were instrumental in introducing such incentive scheme in larger public interest. There was a reference about this in the judgment of the Hon'ble Supreme Court in Satyabrata Sahoo v. State of Orissa (supra).
30. The State Government evolved a method for the grant of incentive marks for Post Graduate admission by drawing a merit list for a total marks of 100, by computing the NEET PG 2017 marks and 10 marks for experience. The NEET marks and experience marks would be taken in the ratio of 90 : 10.
31. It was only to award incentive marks for all the Doctors who have served in notified areas and to give weightage to their experience, the State prescribed the method by allotting 10% marks maximum by way of service incentive. In case the NEET mark alone is taken as the basis to award weightage by giving incentive marks, such method would not reckon the services rendered for the common public good. The Government order fixing the norms for awarding incentive marks should be tested on the touchstone of remote and difficult area service.
32. The method indicated in the proviso to Sub-Clause (iv) of Clause 9 relates to remote and or difficult areas. The State is empowered by the MCI to define the remote and difficult areas. The State Regulation gives benefits to the Doctors working in urban, hilly and some of the newly started medical colleges in backward areas. The MCI Regulation would benefit only those who secured more marks in NEET as their marks would be shooted by 30%. To illustrate this, the first respondent in W.A.No.498 of 2017 who was the petitioner in W.P.No.6031 of 2017 completed three years of rural service. He secured 874.5825/1500 in NEET. He is entitled as per MCI Regulation 30% incentive marks. His marks therefore would be 1136.95725/1500. However, that would not be the case of another candidate who is posted in a very remote area with little resources and a difficult environment for making preparation for NEET. The benefit should not be denied on account of service in an area, where there are no facilities for studies after completing the treatment of poor people. There are committed medical graduates now, who are willing to serve the poor residing in remote and difficult areas without even the luxury of electricity. Such Doctors should also be encouraged to take Post Graduation, as they would come back to our villages and difficult/remote areas for service to the poor and downtrodden. The award of incentive marks for experience by serving the difficult and remote areas would serve larger public interest.
33. While considering the Regulation awarding weightage by incentive marks the object sought to be achieved must also be taken note of. The intention in giving incentive marks for remote and difficult area service is to encourage those who have opted to serve poor, living in such areas.
34. Both the MCI Regulations and the method prescribed by the State aimed to give incentive to the Doctors who have opted to serve the remote and difficult areas for admission to Post Graduate Courses. The State norms evolved for giving weightage for practical experience in notified remote and difficult areas would not prejudicially affect the coordination or determination of standards prescribed by MCI.
35. The State taking into account remote regions and difficult areas, provided incentives to Doctors to serve the poor people in such areas. Similarly, the attempt of MCI by introducing the Proviso was also to encourage service in remote and difficult areas. The State norms does not envisage reservation of seats for PG Courses. It was only a weightage by giving incentive marks calculated by adopting a method. There was no violation of standards set by the MCI while giving weightage marks by the State. This time tested procedure recognizing service to the poor would not violate the norms prescribed by MCI.
36. The MCI Regulations provide for 30% of the NEET marks as weightage by way of incentive marks. The state norms restricts the weightage marks at 10%. There is no dilution of the standards set by MCI by taking 90% marks secured by the candidate in NEET and 10% for rural service, calculated in the manner indicated in the prospectus. These 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.
37. The Hon'ble Supreme Court in State of Tamil nadu v. Pradeep (2004) 4 SCC 513 indicated that Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission.
38. We are informed by the learned Additional Advocate General that there is a condition prescribed by the State that after completion of their Post Graduation, those doctors have to serve the Government till superannuation.
39. The following observation made by the Supreme Court in Dinesh Singh Chauhan is relevant here:
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.
40. The decision taken by the Medical Council of India and the State to award incentive marks was with a definite purpose to encourage remote and difficult area service. The benefit of such policy taken in larger public interest must go to all the Doctors, who have opted for such Service. The State has given an assurance that weightage marks would be given in case of taking rural practice. The Doctors, acting on such promise, agreed to practice in the notified areas with the hope that they would be in a position to secure admission for Post Graduate courses. Since the State has been following this system of awarding incentive marks for many years, the Doctors have no reason to think twice before opting rural service. These doctors have to serve the period prescribed by the State for service in remote and other areas for admission to the Pot Graduate course. The State continued to follow the Policy (adopted even before the introduction of the Proviso to Regulation 9(iv) to award incentive marks), notwithstanding the MCI Regulations providing for a different method of assessment of incentive marks.
41. The writ petitioner would be justified in his contention that the State Regulation is in conflict with the MCI Regulations, only in case the State is adopting a Policy of Reservation in favour of Doctors working in remote and difficult areas. The MCI and the State are committed to promote rural service. The method of awarding incentive marks alone is different. The State seeks to benefit all the Doctors, who have opted for difficult and remote area service. The intention of the MCI in framing the Regulation is also the same. The State clearly demonstrated that the method adopted all these years would benefit all the Doctors working in the notified areas and there would not be any kind of undue advantage to a section of Doctors. There is absolutely no conflict between the Central Regulation and the State Policy on account of different criteria followed for awarding incentive marks. The method evolved by the State would therefore meet the Equality Test under Article 14 of the Constitution of India. The second issue is therefore answered by upholding the method adopted by the State.
Reservation in favour of service candidates:-
42 (a) There was no challenge in W.P.No.6031 of 2017 to the prospectus issued by the admission committee constituted by the Government of Tamil nadu. The learned Senior Counsel for the MCI pointed out several clauses in the Prospectus to demonstrate that all those provisions would go counter to the norms prescribed by the MCI. According to the learned Senior Counsel award of one mark for each completed year after the completion of CRRI for experience, for both service and non-service candidates has no legal sanction. The learned Senior Counsel further pointed out that the Government has provided 50% seats in each Specialty and each college for service candidates in addition to those serving candidates selected in the open category. The learned Senior Counsel submitted that such reservation is not permissible except for the Diploma Course.
(b) There is no proper writ petition before us to consider the legality and correctness of the prospectus issued by the State of Tamil Nadu. The challenge before us is only to the method adopted by the State Government for awarding incentive marks. The question as to whether the State was correct in reserving 50% of the seats in each speciality and in each college for service candidates requires to be decided in an appropriate proceedings with opportunity to the parties to file counter affidavit. The validity of the prospectus was not at all in issue in W.P.No.6031 of 2017 in respect of which, the present writ appeals are filed.
(c) The Court is not expected to travel beyond the scope of the Writ Petition. The Court should confine its decisions to the matter in issue. There is no challenge before us to the various clauses in the prospectus issued by the State. This Bench is constituted only to decide the intra court appeals preferred against the order in W.P.No.6031 of 2017 and W.P.No.6094 of 2017. In both the cases, the reservation in favour of in-service candidates or the award of one mark for each completed year after the completion of CRRI for experience for both the service and non service candidates were not raised by the parties. In fact, the Writ Petition in W.P.No.6094 of 2017 deals only with identification of remote areas. There was no adjudication on merits in the said Writ Petition, on account of subsequent events. In the Writ Petition in W.P.No.6031 of 2017, the learned Single Judge has not dealt with any other issues, as there was no challenge to the prospectus. It was a simple Writ Petition for Mandamus. Therefore, it is not permissible to expand the scope of the related appeals and test the validity of all the clauses in the prospectus. We are therefore of the view 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 batch of intra court appeals.
W.A.No.498/2017 :-
43 (a) The challenge in the writ petition in W.P.No.6094 of 2017, which is the subject matter in W.A.No.453 of 2017 is to the Government Order in G.O.(Ms).No.29 Health and Family Welfare Department, dated 8 February, 2017, adding additional areas for the purpose of awarding weightage marks. Before the Writ Court, the Secretary to Government, Health Department, filed an affidavit indicating that the Government has taken a decision to keep the said Government Order in abeyance. The learned Single Judge, therefore, disposed of the writ petition without considering the merits of the matter. Subsequently, the Government issued another order stating that the Government Order in G.O.Ms.No.29 dated 8 February, 2017 is kept in abeyance.
(b) There is no challenge to the subsequent Government Order issued by the Government of Tamil Nadu keeping G.O.Ms.No.29 dated 8 February 2017 in abeyance. The learned single Judge was therefore perfectly correct in disposing of the writ petition in view of the decision taken by the Government not to implement the Government Order. We are therefore of the view that the appellant has not made out a case for interfering with the order passed by the learned single Judge. We therefore confirm the order passed by the learned Single Judge in W.P.No.6094 of 2017.
Conclusion :-
44. In view of the reasons aforesaid, we hold that the methodology adopted by the State for giving weightage marks for in-service candidates is not in conflict with the method evolved by MCI.
45. In the absence of specific challenge, and 7 May 2017 being the cut off date prescribed by the Hon'ble Supreme Court for counselling, the questions regarding reservation for in-service candidates and award of incentive marks for experience for both the service and non service candidates are kept open to be decided in appropriate proceedings.
46. The order passed by the learned Single Judge dated 17 April 2017 in W.P.No.6031 of 2017 is set aside. We mould 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 2017-18.
Disposition :-
47. The writ appeals in W.A.Nos.484/2017, 490/2017, 491/2017, 498/2017, 499/2017, 506/2017, 527/2017, 536 of 2017, 537 to 546 of 2017 are allowed as indicated above. The writ appeal in W.A.No.453 of 2017 is dismissed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
(K.K.SASIDHARAN, J.) (S.M.SUBRAMANIAM, J.) 03.05.2017 Index: Yes/no tar C O M M O N J U D G M E N T S.M.SUBRAMANIAM, J.
My esteemed learned brother the Hon'ble Mr.Justice K.K.Sasidharan, circulated the 'draft Judgment' and I had the benefit of going through the same. I respectfully disagree with the views and the conclusions arrived therein by my esteemed learned Brother Judge and accordingly, I proceed with my dissenting Judgment as under:
2.The broad spectrum of principles to be borne in mind, while travelling with the entire case on hand are that :-
(a) Uniform standard of higher education, in the whole of Union of India, particularly Post Graduate Courses in Medical Education;
(b) Inconsistencies if any, between the Central Government Regulations and State Prospectus, barring the Rules of Reservations and other permissible incentives granted by the MCA; and
(c) Importance of Post Graduate Medical Courses and its dilution will have a long-lasting adverse effects in the quality of medical education and treatments for general public and teaching sectors in Medical Colleges.
3.These batch of Writ Appeals have been filed under clause 15 of the letters patent preferred against the order of Learned Single Judge passed in W.P. No. 6031 of 2017 on 17th April 2017. The order cited supra is challenged by other Writ Appellants on the ground that the proposition laid down by the learned Single Judge is impacting the admissions to post graduate medical decree courses for the academic year 2017 -2018. Hence all the writ appeals are taken together for consideration, in view of the constitution of a Special Division Bench, during Summer Holidays, as per the orders of My Lord The Hon'ble Chief Justice of the Madras High Court.
4.The writ petitioner in W.P. No. 6031 of 2017, filed the writ petition for issuance of a writ of mandamus to direct the Director of Medical Education of the State of Tamil Nadu and the Selection Committee, to implement the Regulation 9(IV) of Post Graduate Medical Education Regulations, 2000, as amended, by adding 30% marks secured by the petitioner in the "NEET" Examination, while preparing merit list for admission to Post Graduate Medical Course in 50% reserved for Government in-service candidates for the academic year 2017 -18.
5.The factual matrix require to be considered in these Writ Appeals are that the candidates after completion of MBBS Degree were recruited to State Government service through Medical Recruitment Board Examinations. The 1st respondent in Writ Appeal No. 484 of 2017 was appointed in the Government service on 19.09.2017 through Medical Recruitment Board Examinations and was posted to serve as Assistant Professor, Civil Surgeon, Government Hospital, Sholaiya Nagar. Further, he has completed three years of service in the notified areas such as Tribal, remote and hilly areas. The 1st respondent appeared in the 'NEET' Examination for admission to Post Graduate Medical Courses for the academic year 2017-18 and secured 874.5825 marks and his All India rank was 26525.
6.The 1st respondent/writ petitioner further pleaded that pursuant to Medical Council of India Regulation No. 9(IV), he is entitled for 10% of marks to be added along with the marks obtained in NEET Examination for his completed services, and the 1st respondent has completed three years of service in the notified areas such as Tribal, remote and hilly areas. Accordingly, he is eligible for adding of 30% marks obtained to be added with his NEET Marks.
7.The Writ Petitioner has secured 874.5825 marks out of 1500 and in the event of adding 30% marks, his total marks comes to 136.95725. Thus, according to the writ petitioner, his name has to be included in the rank list. The 1st respondent made a representation to the Director on 23rd February, 2017, with a request to comply Regulation 9(IV) of Medical Education Regulations, 2000, as amended. But, his representation was not even looked into. Under these circumstances, he moved this Court under Article 226 of Constitution of India seeking for issuance of a Writ of Mandamus for implementation of Regulation 9(IV) of Post Graduate Medical Education Regulations, 2000.
8.The learned Single Judge has considered the Regulations issued by the Medical Council of India and the Judgment of the Honble Supreme Court of India and directed the State Government to follow the Regulation 9(IV) of Post Graduate Medical Education Regulations, 2000, by adding 30% on the marks secured by the 1st respondent/writ petitioner in the NEET Examination, while preparing the rank list for admission for the Pst Graduate Medical Courses for the academic year 2017-18, as Regulation 9, is only effective and permissible for granting admission to the in-service candidates. It was further made clear that the admission ought to be made only on the basis of the above provision.
9.This direction of the learned Single Judge gave raise for filing of these batch of Writ Appeals by many third party candidates appeared in the NEET Examination for the academic year 2017-18. All those Writ Appeals were filed challenging the order of the learned Single Judge and the important points to be formulated in these Writ Appeals are as under:
1. Whether in the absence of challenging the prospectus by the 1st respondent /writ petitioner, the relief granted is permissible are not ?
2. Whether in the absence of impleading the necessary parties viz., National Board of Examination, non-service candidates and other candidates appeared in the NEET Exam, such a relief granted was in accordance with law or not ?
3. Whether the candidates participated in the NEET Examination, accepting the prospectus can seek any relief from the Court contrary to the prospectus ?
4. When the MCI Regulations 9(iv), does not provide any incentive for the in-service candidates working in hilly areas, whether the State Government is right in granting the same ?
5. Whether the appellants in these batch of writ appeals having executed the bond and joined the Government service based on the promise of the State Government that incentive marks will be granted and such promise creates a legitimate expectation or not ?
6. Whether the State Government has got powers to regulate the scheme of admission in contravention with the scheme formulated under the MCI Regulation, 2000.
These grounds were raised by the Writ Appellants in these batch of Writ Appeals. Consolidating all these grounds, this Court considered the legal principles laid down by the Honble Supreme Court of India in this respect, more specifically, on the MCI Regulations, 2000.
10.Before looking into the various aspects involved and the contradictions pointed out in the prospectus issued by the Government of Tamil Nadu, this Court of the view that the entire issues relating to admission for Post Graduate Degree Medical Courses are settled by the Hon'ble Three Judges Bench of the Honble Supreme Court of India in the case of State of Uttar Pradesh & another Vs. Dinesh Singh Chowhan [2016 9 SCC 749].
11.Let us first look into the Post Graduate Medical Education Regulations, 2000. The said Regulation was issued by the Medical Council of India in exercise of power conferred by Section 33 r/w 20 of Medical Council Act 1956 (102/1956). The Medical Council of India in the provisions sanctioned by the Central Government made regulations.
12.Goals and general objectives of Post Graduate Medical Education Programme to be observed by the Post Graduate Teaching Institutions are enumerated in Regulation II. Regulation II (1) speaks about the goal as under;
Postgraduate Medical Education in broad specialties shall be of three years duration in the case of degree course and two years in the case of Diploma course after MBBS and in the case of super specialties the duration shall be of three years after MD/MS with the exceptions wherever indicated. The regulation 3.2 dealt with general objectives of post graduate training expected from the students of post graduate at the end of post graduate training as under;
i.Recognize the importance to the concerned speciality in the context of the health needs of the community and the national priorities in the health section.
ii.Practice the specialty concerned ethically and in step with the principles of primary health care.
iii.Demonstrate sufficient understanding of the basic sciences relevant to the concerned specialty.
iv.Identify social, economic, environmental, biological and emotional determinants of health in a given case, and taken them into account while planing therapeutic, rehabilitative, preventive and primitive measure/strategies.
v.Diagonse and manage majority of the conditions in the specialty concerned on the basis of clinical assessment and appropriately selected and conducted investigations.
vi.Plan and advise measures for the prevention and rehabilitation of patients suffering from disease and disability related to the specialty.
vii.Demonstrate skills in documentation of individual case details as well as morbidity and mortality rate relevant to the assigned situation.
viii.Demonstrate empathy and humane approach towards patients and their families and exhibit interpersonal behaviour in accordance with the societal norms and expectations.
ix.Play the assigned role in the implementation of national health programme, effectively and responsibly.
x.Organize and supervise the chosen/assigned health care services demonstrating adequate managerial skills in the clinic/hospital or the field situation.
xi.Develop skills as a self-directed learner, recognize continuing education needs; select and use appropriate learning resources.
xii.Demonstrate competence in basis concepts of research methodology and epidemiology, and be able to critically analyse relevant published research literature.
xiii.Develop skills in using educational methods and techniques and applicable to the teaching of medical\ nursing students, general physicians and paramedical health workers.
xiv.Function as an effective leader of a health team engaged in health care, research or training.
The regulation 5 speaks about the components of the post graduate curriculum:
The major components of the Postgraduate curriculum shall be:
i.Theoretical knowledge ii.Practical and clinical Skills iii.Thesis skills iv.Attitudes including communication skills v.Training in research methodology Now let us now see the Regulation 9 which deals with the selection of post graduate students.
I.There shall be a single eligibility cum entrance examination namely National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses in each academic year. The overall superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with Medical Council of India. However, Medical Council of India with the previous approval of the Central Government shall select organization/s to conduct National Eligibility-cum-Entrance Test for admission to Postgraduate courses.
II.II. 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%. Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seats for General Category candidates. Provided further that this entire exercise shall be completed by each medical college / institution as per the statutory time schedule for admissions.
III. In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of 50% (Fifty Percent) marks in National Eligibility-cum-Entrance Test for Postgraduate courses held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum percentage marks shall be 40% (Forty Percent) and in respect of candidates as provided in clause 9 (II) above with locomotory disability of lower limbs, the minimum percentage marks shall be 45% (Forty Five Percent) in the National Eligibility-cumEntrance Test : Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cumEntrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.
IV.The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/ Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Post Graduate courses from the said merit lists only.
V.No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub Clause (II) above shall be admitted to any Postgraduate courses in the said academic year.
VI.In non-Governmental medical colleges/institutions, 50% (Fifty Percent) of the total seats shall be filled by State Government or the Authority appointed by them, and the remaining 50% (Fifty Percent) of the seats shall be filled by the concerned medical colleges/institutions on the basis of the 10 merit list prepared as per the marks obtained in National Eligibility-cumEntrance Test. The regulation 9 deals with procedure for selection of candidates for post graduate courses. The amendment was issued to clause 9 as below;
Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cumEntrance Test. The remote and difficult areas shall be as defined by State Government/Competent authority from time to time.
13. In respect of this Regulation, the Honble Supreme Court of India in State of Uttar Pradesh & another Vs. Dinesh Singh Chowhan [2016 9 SCC 749], cited supra, illustrated the powers of the State to frame the Rules and emphasized that any Rule or Notification issued by the State Government should not be in contravention to the provisions of the Medical Council of India, Post Graduate Medical Education Regulations, 2000. This Court has shown some anxiety to look into the prospectus issued by the State Government for admission to Post Graduate Medical Courses. Chapter VI deals with the 'Merit List', as under:
VI. MERIT LIST The Merit List will be drawn for a Total Mark of 100 by computing the Entrance Examination (NEET PG 2017) Marks and the marks for experience. (90 Entrance Examination (NEET PG 2017) +10 marks for experience). Illustration is given in annexure X.
14.Now the point to be considered is as to whether the prospectus issued by the State Government for admission to Post Graduate Courses are in contradiction or in consonance with the Regulations issued by the Medical Council of India. To deal with this issue, the prospectus issued by the State Government speaks that the total marks of 100 for the NEET Exam is converted to 90 and 10 marks are allotted for experience. The illustration given in Annexure X to the Prospectus, is extracted hereunder;
1.Candidate D who is non service candidate secured Marks 958.2541 in NEET PG 2017. Completed MBBS on 31.01.2010.
2.Candidate E who is Service Candidate and working in Rural Primary Health Centre secured marks 958.2540 in NEET PG2017. Completed MBBS on 31.01.2012. Date of joining service : 01.12.2014
3.Candidate F who is service candidate and working in Primiary Health Centre in Hilly area secured Marks 957.2540 in NEET PG2017. Completed MBBS on 31.01.2014. Date of joining dservice : 01.12.2014 Merit List Candidate NEET Score Computed to 90 Experience marks Total marks General Merit D 958.2541 57.495246 07 64.495246 1 E 958.2540 57.495240 05+02 = 07 64.495240 2 F 957.2540 57.435240 03+04 = 07 64.435240 3
15.This apart, the prospectus clause 17 (a) empowers the Selecting Authority to award one mark for each completed year of service after completion of CRRI with the maximum mark of 10. This apart, the marks for service candidates served in Rural/ Hilly/ difficult areas are provided as under;
1) Rural area 1 mark
2) Hilly area - 2 marks
3) Remote/difficult area - 2 marks Further 2 marks are given to the candidates who worked in Government Hospitals, Primary Health Centres and Government Medical College Hospitals of Thiruvarur, Nagapattinam and Ramanathapuram Districts, limited to a maximum of 10 marks. Thus, the State Government creates the separate method of awarding of marks to in-service candidates and also for non- service candidates.
16.The learned Senior counsel for Medical Council of India Mr.Vijayanarayanan, contended that Rule 9 of the Medical Council of India Regulation was notified with effect from 27th December, 2010 and as in the case reported in 2014 3 SCC 305, dated 18th July 2013, the Regulation was struck down by the Honble Apex Court and the Review Application filed by the Medical Council of India was allowed by the Honble Apex Court on 11.04.2016. By virtue of the order passed in the Review Application, the Medical Council of India Post Graduate Medical Education Regulations, 2000 was revived and came into force. The main ground for setting aside the Regulation by the Honble Apex Court earlier was that, the Regulation was not supported by any provision of Indian Medical Council Act, 1956, as there was no statutory back up. In order to save the Regulation, subsequent to the judgment of the Honble Apex Court, section 10(D) was inserted by the Central Government in the Act, which reads as follows;
10 D. There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level through such designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner:
Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Medical College or in a Private Medical College) where such State has not opted for such examination..
By virtue of insertion of section 10(D) of the Indian Medical Council Act, 1956, the legal validity of this Medical Council of India Regulation, is protected.
17.The learned Senior Counsel had taken the Court on various inconsistent clauses incorporated by the State Government in the prospectus issued for admission to Post Graduate Medical Courses for the Academic Year 2017-18. The learned senior counsel insisted that some of the clauses are totally inconsistent and in violation of Medical Council of India Regulations and therefore, the Post Graduate Medical Courses in the State Government has to be regulated in consonance with the Medical Council of India Regulations and the selection procedure contemplated in the amended MCI Regulations, 2000, is to be adopted.
18.Clause 16 of the prospectus converting the NEET marks from 100 to 90 and adding 10 marks separately for experience itself is in violation of the Medical Council of India Regulations. The State Government has no authority to tinker with the nomenclature prescribed for the NEET Exam and further converting the marks awarded by the NEET from 100 to 90 and adding 10 marks separately for experience will amount to impinging the MCI Regulations and the State Government has no authority to do so. Further, the learned Senior Counsel contended that an Institutional Reservation is created for in-service candidates.
19.What was intended by the Medical Council of India Regulation is, to grant weightage to the in-service candidates serving in Rural /remote /difficult areas, and such areas has to be notified by the State Government. The Medical Council of India Regulations did not permit the State Government to create separate clause of in-service candidates by itself. If the object of the Medical Council of India Regulations is taken into consideration, the standard of Post Graduate Medical Course admission are to be maintained uniformly in all the States, and any dilution will affect the Medical Education and the public in general. This apart, granting of marks for experience after completion of CRRI for all the candidates both service and non-service is in violation of Medical Council of India Regulations and it amounts to institutional reservation and impermissible under the Medical Council of India Regulations.
20.The Learned Senior Council strenuously contended that challenging of the prospectus by the candidates in the Writ Petition are insignificant because, candidates seeking admission for Post Graduate Medical Courses will file writ petitions on their convenience and to suit their eligibility criteria, with an idea to secure admission. But, Constitutional Courts cannot shut its eyes, if any glaring violation committed by the State Government for admission to Post Graduate Medical Courses and the same is to be seriously looked into. There must be a linkage between the NEET Marks and the incentive marks awarded in accordance with the MCI Regulations.
21. Any prospectus and selection procedures notified by the state government should be in accord with the MCI Regulation. 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.
Section 33(b) of State prospectus stipulates as below;
50% of seats in each speciality and in each college are reserved for service candidates, in addition to those service candidates selected in the open category. In case an odd number seat remains in any specialty in the total seats sanctioned for that specialty, that seat shall be filled by merit and communal reservation (example 1). The odd seat stated above is referable to each specialty and not to each college (as illustrated in example 2) Clauses states that 50% of seats in each specialty and in each college are reserved for service candidates. The said reservation of 50% for in-service candidates are not contemplated in MCI Regulation. Therefore, the said clause also is in violation of MCI Regulation. What is contemplated in MCI Regulation 9(IV) is awarding of 10% of the marks obtained for each year of service in remote/ difficult areas upto the maximum 30% of marks obtained in NEET. Of course, the declaration of areas remote / difficult is entrusted with the state government / competent authority from time to time.
22. The separate reservation of 50% was awarded only for post graduate diploma courses by virtue of MCI Regulation 9(1)(b), but no such reservation was granted for post graduate medical courses. 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. Since, no such reservation is permissible, as the reservation of granting of 50% reservation for P.G.Diploma course have different objectives and the same cannot be converted by the State for admission to the Post Graduate Courses also.
23. Clause 33(b) of the prospectus spells out 50% of seats in each speciality and in each college are reserved for service candidates, in addition to those service candidates selected in the open category. Undoubtedly, such allotment of 50% of seats in favour of in service candidates amounts to institutional reservation, not contemplated under the MCI Regulations, 2000.
24. The said clause will not stand under the scrutiny of Article 14 and 16 of the Constitution of India, in view of the fact that it creates a clause within a clause amongst the eligible candidates.
25. The clause amounts to discrimination, creating anomalous situation amongst service and non-service candidates. Such an institutional reservation is alien to the provisions of our constitution and it violates the principles enshrined by the Hon'ble Supreme Court of India.
26. The Learned Senior Counsel at the outset stated that if Regulation 9(IV) is implemented by the State Government the in-service candidates serving in remote\difficult areas will get more marks than that of the prospectus issued by the State.
27. The learned counsel appearing for the candidates advanced their arguments that the State is empowered to frame its own procedure for admission of post graduate medical courses within the state. In support of their contentions they have stated that the MCI Regulations permit the state government to formulate their own admission process and thus, there is no infirmity in the prospectus issued by the State Government . Further, the awarding of incentive marks to in-service candidates served in rural, hilly and remote areas are in accord with the regulation 9(IV) and the procedure adopted by the State cannot be questioned or construed as, in violation of MCI Regulation. When the Central Government granted permission to the State Government to formulate the procedure for admission, it is for the State to decide the procedure considering the factual situations prevailing in their respective states and therefore there is no irregularity or illegality, in prescribing various clauses by the State, in the prospectus for admission to post graduate medical courses.
28. It is contended that the original writ petition filed by the 1st respondent /writ petitioner itself is not maintainable. Since, the NEET Exam and the prospectus are not challenged in the writ petition. In the absence of questioning the legal validity, the prospectus, it is to be construed that, the 1st respondent\writ petitioner has accepted the prospectus and appeared in the written examination. Thus, the writ petition itself is to be dismissed as not maintainable.
Further, necessary parties including non service candidates are not impleaded in the writ petition. In the absence of necessary parties, the writ ought not to have issued by the Learned Single Judge. The questions put forth by the respective counsels are that the 1st respondent/writ petitioner participated in the written examination admitting the conditions stiplated in the prospectus, therefore, he is not entitled to seek any relief from this Court, disputing the clauses in the prospectus. The 1st respondent/writ petitioner after admitting the prospectus came out by way of writ petition, seeking implementation of clause 9(IV) of MCI Regulation. Thus, he is estoped from doing so.
29. With regard to the impleading of necessary parties to the lis as raised by the learned counsel for the appellant, the Court is of the view that the lis on hand relates to admission to Post Graduate Courses and large number of students in the State appeared in the NEET Exam. This apart, the Hon'ble Suprme Court considered and decided the issue in respect of Regulation 9(4) of the MCI Regulations in the case of STATE OF U.P. v DINESH SINGH CHAUDHAN. Moreso, in respect of in service candidates, the authoritative pronouncement with regard to the authority of Medical Council of India under the Indian Medical Council Act, 1956, the authority of the State with reference to Regulation 9 of the MCI Regulation, 2000, is the binding law covering the entire subject.
30. Therefore, all Courts and the State Governments have to adhere the binding precedent enshrined by the Hon'ble Apex Court of India. Thus, the points to be considered is these Writ Appeals is mainly, whether the prospectus issued by the State of Tamil Nadu for admission to Post Graduate Medical Courses are in consonance with Regulation 9 of the MCI Regulation, 2000.
31. In the light of this arguments, this Court has to now proceed with the Judgement of the Hon'ble Three Judges of the Supreme Court of India in the State of Uttar Pradesh & another Vs. Dinesh Singh Chowhan in 2016 9 SCC 749, wherein all these aspects more specifically covering the MCI Regulations and powers of the State to issue admission procedures on various lines . Following paragraphs are necessary for the appreciation of these batch of Writ Appeals.
4. ......The provision, however, was only to give weightage of marks to in-service candidates who had worked for specified period in CHC and PHC Hospitals in notified remote, difficult or backward areas of the State. On the other hand, reservation has been limited to postgraduate diplomacourses by the said Regulations. The High Court, therefore, called upon the Medical Council of India to clarify its stand in this behalf.
32. Their Lordships distinguished granting of additional marks to the in-service candidates. Regulation 9(IV) stipulates the additional marks for in-service candidates in order to provide weightage of marks for the candidates worked for a specific period in the notified remote/difficult areas in the State and the state is empowered to issue notification declaring such areas, as it deem fit.
33. In Paragraph No.5 of the Judgment, it is stated that No reservation for in service candidates is permissible in respect of post graduate degree courses; unlike for the post graduate diploma courses, in terms of regulations framed in that behalf .
34. In paragraph No.6 of the Judgment, it is clarified, that as per Regulation 9 at the best, the in-service candidates, worked in remote and difficult areas in the State as notified by the State Government /competent authority from time to time, alone would be eligible for weightage of marks as incentive at 10% of the marks obtained for each year of service in such areas up to the maximum of 30% marks obtained in National Eligibility/Entrance Test.
35. The issue formulated by the Hon'ble Apex Court in paragraph 19 is as under;
19. Having considered the rival submissions, the first question that needs to be answered is:
whether the High Court exceeded its jurisdiction in setting aside the Government Order dated 28.02.2014 providing for reservation to in-service candidates, when the writpetition filed by the in-service candidates was limited to equate them with the in-service candidates who had the experience of working in remote or difficult areas.
36. In Paragraph No. 20 of the Judgment, it has been held that it is not open to the State Government to provide for dispensation different than the one specified by the Central Act and Regulations made thereunder. 24. By now, it is well established that Regulation 9 is a self-contained code regarding the procedure to be followed for admissions to medical courses. It is also well established that the State has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to postgraduate medical courses enuniciatged by the Central legislation and regulations framed thereunder, being a subject falling within Schedule VII List I Entry 66 of the Constitution (see preeti Srivastava V. State of M.P). The procedure for selection of candidates for the postgraduate degree courses is one such area on which the central legislation and regulations must prevail.
Paragraph 25.4 is extracted hereunder;
....It predicates that in determining the merit of the candidates who are in service of the Government or a public authority, weightage inthemarks may be given by the Government /competent authority as an incentive @ 10% of the marks obtained for each year of service in specified remote or difficult areas of the State up to the maximum of 30% of the marks obtained in NEET. This provision even if read liberally does not provide for reservation for in-service candidates, but only of giving a weightage in the form of incentive marks as specified to the class of in-service candidates (who have served in notified remote and difficult areas in the State) Paragraph 27 is extracted hereunder 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. 28. In Students' Union Vs. AIIMs, this Court was called upon to examine the question whether seats earmarked for institutional candidates do or do not result in reservation in the sense in which it is understood in the Constitution. After examining earlier decisions on the point, this Court in paragraph 59, noticed the distinction between undergraduate level education which is a primary or basic level of education in medical sciences. The Court held that institutional reservation is not supported by the Constitution or constitutional principles. However, a certain degree of preference for students of the same institution is permissible without making an excessive or substantial departure from the rule of merit and equality. Further, it has to be kept within the limits, minimum standards and merit cannot be diluted as to become practically non-existent.
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. 31. However, in the present case, the Medical Council of India itself has framed a Regulation predicating one merit list by adding the weightage of marks assigned to in-service candidates for determining their merit in the NEET. 33. As aforesaid, the real effect of Regulation 9 is to assign specified marks commensurate with the length of service rendered by the candidate in notified remote and difficult areas in the State linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation for determining merit of the candidates for admission to the Post Graduate Degree Courses for a single State. This serves a dual purpose. Firstly, the fresh qualified Doctors will be attracted to opt for rural service, as later they would stand a good chance to get admission to Post Graduate Degree Courses of their choice. Secondly, the Rural Health Care Units run by the Public Authority would be benefitted by Doctors willing to work in notified rural or difficult areas in the State. In our view, a Regulation such as this subserves larger public interest. Our view is reinforced from the dictum in Dr. Snehelata Patnaiks case (supra). The three Judges Bench by a speaking order opined that giving incentive marks to in-service candidates is inexorable. It is apposite to refer to the dictum in the said decision which reads thus:
1. We have already dismissed the writ petition and special leave petitions by our order dated December 5, 1991. We would however, like to make a suggestion to the authorities for their consideration that some preference might be given to in-service candidates who have done five years of rural service. In the first place, it is possible that the facilities for keeping up with the latest medical literature might not be available to such in- service candidates and the nature of their work makes it difficult for them to acquire knowledge about very recent medical research which the candidates who have come after freshly passing their graduation examination might have. Moreover, it might act as an incentive to doctors who had done their graduation to do rural service for some time. Keeping in mind the fact that the rural areas had suffered grievously for non-availability of qualified doctors giving such incentive would be quite in order. Learned counsel for the respondents has, however, drawn our attention to the decision of a Division Bench of two learned Judges of this Court in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad. It has been observed there that merely by offering a weightage of 15 per cent to a doctor for three years rural service would not bring about a migration of doctors from the urban to rural areas. They observed that if you want to produce doctors who are MD or MS, particularly surgeons, who are going to operate upon human beings, it is of utmost importance that the selection should be based on merit. Learned Judges have gone on to observe that no weightage should be given to a candidate for rural service rendered by him so far as admissions to post-graduate courses are concerned (see para 12 at page 741).
2. In our opinion, this observation certainly does not constitute the ratio of the decision. The decision is in no way dependent upon these observations. Moreover, those observations are in connection with all India Selection and do not have equal force when applied to selection from a single State. These observations, however, suggest that the weightage to be given must be the bare minimum required to meet the situation. In these circumstances, we are of the view that the authorities might well consider giving weightage up to a maximum of 5 per cent of marks in favour of in-service candidates who have done rural service for five years or more. The actual percentage would certainly have to be left to the authorities. We also clarify that these suggestions do not in any way confer any legal right on in-service students who have done rural service nor do the suggestions have any application to the selection of the students up to the end of this year. (emphasis supplied)
34. The crucial question to be examined in this case is: whether the norm specified in Regulation 9 regarding incentive marks can be termed as excessive and unreasonable? Regulation 9, as applicable, does not permit preparation of two merit lists, as predicated in the case of Tirthani (supra). Regulation 9 is a complete Code. It prescribes the basis for determining the eligibilities of the candidates including the method to be adopted for determining the inter se merit, on the basis of one merit list of candidates appearing in the same NEET including by giving commensurate weightage of marks to the in-service candidates.
37. In all the above paragraphs the Hon'ble Supreme Court pronounced that the incentive marks at 10% in NEET for each year of service upto the maximum of 30% is granted not to provide any reservation for in service candidates, but, only to give weightage in the form of incentive marks as specified in clause 9(iv) for the candidates served in the notified remote/difficult areas in this state.
38. 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.
39. The Hon'ble Supreme Court of India while justifying Regulation 9 (iv) regarding incentive marks to in service candidates, stated that the weightage marks given to the eligible inservice candidates willing to perform in NEET and also the performance on the remote/difficult areas in the state and the provision has been made now in force and not merely to provide institutional preference.
40. In paragaraph 39 of the Judgment, the Hon'ble Apex Court held that the Court noted that the basis of selection must be strictly as per norms specified in the Medical Council of India Regulations. Any other law with regard to that will be beyond legislative competence of the state legislature. Accordingly, the proviso to clause (IV) in Regulation 9 was up held in larger public interest.
41. In paragraph 46 , the Hon'ble Supreme Court held that we may instead mould the relief in the appeals before us by directing all concerned to follow the admission process for academic year 2016-2017 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.
42. The learned Senior Counsel appearing for the appellants contended that the State Government has got powers to regulate the admission procedure and the constitution grants such power to the State, by virtue of entry 25 of the concurrent list III, the power of the State to regulate the admission for higher education is also dealt elaborately by the Hon'ble Supreme Court of India in Sudhir Vs. State of Kerala 2015 6 SCC 685. In that case also the Regulation 9 of the MCI Regulation 2000 was elaborately discussed and decided by the Hon'ble Apex Court inrespect of Kerala medical admission to postgraduate courses under the Service Quota Act, 2008, 40% of the available seats in the state of Kerala are reserved for inservice doctors serving in the Health Service Department, Medical College lecturers and doctors serving in the Employees State Insurance Department of the State.
43. The interpretation of powers of the State as well as Centre was declared in unambiguous terms by the Hon'ble Apex Court in the following paragraphs 7, 12,15, 16, 17,18, 20, 21 & 24.
7.The primary ground on which the challenge to the validity of the legislation was mounted by the writ petitioners was that the State legislature could not enact a law that would make selection for admission to the post-graduate courses dependent solely on the seniority of the in- service candidates without prescribing the minimum conditions of eligibility for the candidates concerned. Competence of the State Legislature to enact Section 5(4) of the impugned Legislation was also called in question on the ground that the said piece of legislation violated the regulations framed by the Medical Council of India the authority competent to do so under the Medical Council of India Act, 1956. It was argued that the Post-Graduate Medical Education Regulations, 2000 provided the minimum requirements that all the candidates have to fulfil. Inasmuch as the State enactment contrary to the said regulation and requirement postulates that selection of candidates shall be made only on the basis of seniority it was beyond the legislative competence of the Kerala State Legislature. The Indian Medical Council Act and the MCI Regulations framed under the same were, argued the writ petitioners- respondents herein, referable only to Entry 66 of List I of Seventh Schedule. Any legislation enacted by the State Legislature in exercise of its power under Entry 25 in List III was subject to any law to the contrary passed by the Parliament in exercise of its power under Entry 66 of List I. That the State Act was reserved for consideration of the President and that it has received the assent of His Excellency in terms of Article 254(2) of the Constitution did not save the legislation from the vice of legislative incompetence. 12. The High Court then held that inasmuch as Section 5(4) of the impugned enactment provides for the preparation of a select list of in- service medical officers based on seniority, such selection shall be made from among in-service medical officers only who have appeared in the common entrance test of post-graduate medical education and obtained the minimum eligibility bench mark in that test in terms of the MCI Regulations. The High Court held:
The conclusion is that the provision in Section 5(4) of the State Act that the select list of in-service medical officers for postgraduate medical education shall be strictly on the basis of seniority is subject to the requirement that such selection can be made only from among those in- service medical officers who have undergone the common entrance test for postgraduate medical education and have obtained the minimum eligibility bench mark in that test in terms of the MCI Regulations. It is so declared. These writ petitions are allowed to that extent."
15. Regulation 9 is, in our opinion, a complete code by itself inasmuch as it prescribes the basis for determining the eligibility of the candidates including the method to be adopted for determining the inter se merit which remains the only basis for such admissions. To the performance in the entrance test can be added weightage on account of rural service rendered by the candidates in the manner and to the extent indicated in the third proviso to Regulation 9. Suffice it to say that but for the impugned legislation making an attempt to change the basis on which admissions can be made, such admissions must, in all categories, be made only on the basis of merit as determined in terms of the provision extracted above. That method, however, is given a go-bye by the impugned legislation when it provides that in-service candidates seeking admission in the quota reserved for in-service doctors shall be granted such admission not on the basis of one of the methodologies sanctioned by Rule 9(2) of the Rules but on the basis of inter-se seniority of such candidates. The question is whether the State was competent to enact such a law. Our answer to that question is in the negative. The reasons are not far to seek . 16. As noted earlier, the subject is fully covered by several pronouncements of this Court to which we shall presently refer but before we do so we may extract Article 246 of the Constitution which reads as under:
"246. Subject matter of laws made by Parliament and by the Legislatures of States (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List) (2)Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List) (3)Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List') (4)Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List"
17. We may also refer, at this stage, to Entry 66 of List I which runs as under:
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
18. In State of T.N. and Anr. v. Adhiyaman Educational & Research Institute & Ors. (1995) 4 SCC 104, this Court was examining the scope of Entry 66 of the Union List vis-a-vis Entry 25 of the Concurrent List in relation to the provisions of Tamil Nadu Private Colleges (Regulation) Act and Madras University Act vis-a-vis Council for Technical Education Act, 1987. This Court held that the Central Act was intended to achieve the object of coordinated and integrated development of the technical education system at all levels throughout the country with a view to promoting qualitative improvement of such education. This Court further held that the Central Act namely, All India Council for Technical Education Act, 1987 was within the scope of Entry 66 of List I and Entry 25 of List III and that on the subject covered by the statute the State could neither make a law under Entry 11 of List II nor under Entry 25 of List III after the 42nd Amendment. If there was any law existing immediately before the commencement of the Constitution within the meaning of Article 372, such as the Madras University Act, 1923, the Central Legislation would, to the extent of repugnancy, impliedly repeal such pre-existing law.
20. In Dr. Preeti Srivastava (supra) one of the questions that fell for consideration was whether the standard of education and admission criteria could be laid under Entry 25 of List III by a Central Legislation. A Constitution Bench of this Court by majority held that standard of education and admission criteria could be laid down under Entry 66 of List I and under Entry 25 of List III. It was held that both the Union as well as the State have the power to legislate on education including medical education and the State has the right to control education so far as the field is not occupied by any union legislation. When the maximum marks to be obtained in the entrance test for admission to the institutions for higher education including higher medical education is fixed, the State cannot adversely affect the standards laid down by the union government. It was held that it is for the MCI to determine reservation to be made for SC/ST and OBC candidates and lowering the qualifying marks in their favour on the pretext or pretence of public interest.
21. Speaking for the majority, Sujata V. Manohar, J. summed up the legal position as under:
"35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on "education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III".
Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:
"25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." [pic] Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows:
"66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available to each student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;
(7). adequate accommodation for the college and the attached hospital; and (8). the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged."
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 Medical Council of India's Regulations. The High Court was, in our opinion, 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 when in Gopal D. Tirthani's case (supra) 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 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 service is permissible while determining the merit 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 gives no weightage to seniority simplicitor.
44. The said judgment declared that MCI Regulation 9 permits only effective and permissible principles of granting admission to in service candidates. Thus, the Hon'ble Supreme Court has taken a firm view on MCI Regulations, more particularly, Admission to Post Graduate Medical Courses. Any deviation or violation will result in discrimination and will affect the uniformity in selection procedures. The whole object of NEET Examination and prescription of regulation by MCI is to maintain uniformity in standards of admission for postgraduate courses. The State Government has no option in respect of implementing the MCI Regulations by virtue of the interpretations accorded by the Hon'ble Supreme Court of India, in the above two cases, cited supra.
45. Thus, the prospectus which is issued by the State of Tamil Nadu creates a separate reservation for inservice 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.
46. It is brought to the notice of this Court that, both for service and non-service candidates, the NEET marks are converted from 100 to 90. Thereafter an additional 10 marks for inservice candidates are awarded as per prospectus. This will also create discrimination between inservice and non-service candidates. First of all the conversion of NEET marks by the State Government to suit their convenience is not permissible under the MCI Regulations. After converting the NEET marks for all the candidates, at their convenience and awarding of marks for in-service candidates working in remote / difficult areas are inconsistent/repugnant to the Regulations. Such design of awarding of marks by the state government is to be declared un-constitutional and in violation of MCI Regulations and it creates institutional reservation and non-service candidates are discriminated.
47. Let us examine the doctrine of repugnancy in respect of Article 254, 7th Schedule Entry 25 List III. The State Prospectus creates inconsistencies within and on MCI Regulations, 2000. To that extent, the Clauses 16,17, and 33(2) are repugnant. In support of this, the Division Bench of this Court, in the case of THE TAMIL NADU DR.M.G.R.MEDICAL UNIVERSITY v. P. ANAND [2011 (6) CTC 801], while dealing with Regulations 12(4) of MCA Regulations observed as under:
"37. In the case on hand, we are not concerned with eligibility criteria for admission, but dealing with the examination regulations and distribution of marks to various disciplines. Admittedly, M.B.B.S. seats have been reserved in all colleges in the country for all India quota in which candidates throughout the country compete for seats. Similarly quota has also been prescribed for post graduate courses as well. Therefore, MCI being conscious of the fact that there should not only be a uniform pattern of education, but uniform examination regulations which deals with attendance, internal assessment, University examination and distribution of Marks to various disciplines framed Regulation. In the earlier part of this order, we have extracted regulation 12(4) of the MCI Regulation. A perusal of the said regulation makes it clear that a candidate would be declared pass in each of the subject if he/she obtained 50% in aggregate with a minimum of 50% in theory including orals and minimum of 50% in practicals/clinicals. These regulations having been framed by a Central body are not merely directory, but are binding on the appellant University. Therefore, the University may not justified in framing a regulation which is inconsistent with the MCI Regulation.
38. On a careful reading and comparison of Regulation 12(4) of MCI Regulation and the impugned guidelines issued by the Appellant University, it is prima facie clear that the manner in which a candidate would be declared to have been passed, has been modified by the appellant University, thus being inconsistent with the MCI Regulation. The appellant University seek to justify their action by stating that the stipulation in the guidelines framed by the appellant does not lower the norms laid down by MCI, but has fixed higher standards in order to achieve excellence in education. On a perusal of the impugned guidelines framed by the appellant University, we fail to understand as to how it would satisfy the test of prescribing higher standards. As noticed above, the MCI Regulation declares a candidate to have passed if in each of the subject he/she has obtained 50% in aggregate with a minimum of 50% in theory including orals and minimum of 50% in practicals/clinicals. Therefore, by prescribing a guideline and dividing the clinical subject into two namely general surgery and orthopeadics and prescribing 50% mark in each is undoubtedly in conflict with the regulation 12(4) of the MCI Regulation and there is no material to establish that by virtue of the impugned regulation, the standards of education would improve. After having gone through the facts of the case, we have found that by virtue of the impugned guidelines an anomalous situation has arisen since candidates who have under gone their M.B.B.S. course in any other University, having been declared pass by applying the MCI guidelines would be not qualify to apply for post graduate course if the guideline of the appellant University is applied to their cases yet on account of the All India Quota made available, such candidates are permitted to apply for such courses, though they do not satisfy the guidelines of the appellant University.
39. In Maharashtra Universities of Health Sciences vs. Paryani Mukesh Jawaharlal (2007) 10 SCC 201, the Hon'ble Supreme Court, considered the interpretation of Regulation 12(2) and 12(4) of the MCI Regulations. The Hon'ble Supreme Court held that any regulation made by Universities which are inconsistent with the MCI Regulations will not be valid to the extent of inconsistency. Reliance was placed on the decisions in Adhiyaman, Preeti Srivastava and MCI vs. State of Karnataka. Further held that if the regulation of any University merely implements or makes it explicit what is implicit in Regulation 12(4) of the MCI Regulation, then the same will be valid and binding. Paragraph 19 &20 of the said judgment would be very relevant for the purpose of this case and quoted herein below:-
19. The scheme of MCI Regulation 12 also makes it clear that there will be internal assessment as well as the external assessment (University examination) in regard to theory as well as practicals. Clause (2) of MCI Regulation 12 makes it clear that in addition to providing the eligibility to appear in the University examination, the internal assessment also provides a weightage to an extent of 20% of the total marks in each subject. Clause (4) of MCI Regulation 12 makes it clear that for passing in each subject, a candidate must obtain 50% of marks in the aggregate. There is no controversy in regard to what is meant by aggregate. It is the aggregate of external examination marks and internal assessment marks. Where the maximum of 100 marks are for theory papers, 20 marks are for oral, 40 marks are for practicals, in all 160 for externals and 40 marks are for internal assessment, the aggregate is 200. A candidate should secure in all a minimum of 100 marks out of 200. The requirement relating to passing in aggregate complies with sub-clause (iv) of Clause (2) of Regulation 12, as internal assessment marks (secured out of 40 marks, which is 20% of total marks) are also counted.
20. The controversy is in regard to the method of calculating the passing marks for the other two heads of passing, namely, theory including orals and practicals. The scheme of the MCI Regulations requires the student to pass the University examination (externals) with 50% in theory (including oral) and 50% in practicals, and also secure 50% of marks in the aggregate of the total marks for external examination and total marks for internal assessment."
The Division Bench came to the conclusion that the criteria framed by the Dr.M.G.R.Medical University is consistent/repugnant to Regulation 12(4) of the Medical Council of India Regulations on Graduate Medical Education, 1997( as amended upto November 2010).
48. In the present context, the State Government cannot adopt same standard for admission to the Under Graduate Courses and and the Post Graduate Courses. The vast difference existing between these two courses cannot be compared with. For instance, Under Graduate Courses (M.B.B.S.,) are mostly general medical studies and the Post Graduate Courses are specialized in nature, which require certain amount of additional competence and in the complicated case of health issues, such an additional competence for Medical Practitioners are certainly required. Any dilution of the standards in higher education will certainly have an adverse impact in the quality of medical education. It affects the diagnosis and nature of treatment provided to the general public.
49. Apart from this, right to life under article 21 of the Constitution of India as interpreted by the Hon'ble Supreme Court, includes medical facilities to be provided by the State. When the medical facilities are integral part of fundamental right under Article 21 of the Constitution of India, the standard and quality of higher education for medical studies cannot be diluted and uniformity has to be maintained regarding the standard of education and merit alone should prevail. During the assessment of merit certain amount of incentives or concessions can be shown in order to uplift certain categories of candidates, who do not have the facilities to acquire themselves on par with the candidates in urban areas. While awarding incentives to such candidates, the standard of medical eduction cannot be tampered with. Any tinkering of the prescribed standards of Medical Council of India will have an adverse effect on the quality of higher medical education. Therefore, the medical education being an integral part of Article 21 of the Constitution of India, fundamental right of citizen, the State has no authority to impinge the standard of higher education as determined by the Medical Council of India Regulations.
50. Further, the question to be considered is whether the State Prospectus is repugnant to or encroaches upon or is in conflict with the power of the Central Legislature to make laws in respect of matters specified in Entry 66 of List I of the Seventh Schedule to the Constitution. The Indian Medical Council pursuant to Section 33 of the Indian Medical Council Act had formulated regulations made by the Central Government laying down the criteria or standards for admitting the candidates to various Post Graduate disciplines in the Medical Colleges of the State. The very Regulation has been quoted herein before, clearly prescribe that the candidates should be selected strictly on merit.
51. In respect of remote/difficult areas contemplated in regulation 9(IV), this court of the view that, the regulation itself clarifies that the remote/difficult areas especially as defined by the State/ Competent Authority from time to time and, it is for the state to notify difficult / remote areas. Therefore, the hilly areas also to be construed as difficult/remote areas. There may be areas in respect of prospectus issued by the State of Tamil Nadu, such areas are notified in the Annexure. Thus, there cannot be any dispute with regard to that. The arguments advanced by the learned Senior Counsel appearing for the appellants, the hilly areas are not contemplated under MCI Regulation 9(IV), deserves rejection, in view of the fact that clarification contemplated under MCI Regulation can be interpreted, so as to include the hilly areas also. Rightly, the State Government included hilly areas in the Annexure to the prospectus. Declaration of areas by the State Government is not in dispute. The dispute is awarding of marks to in service candidates by converting the NEET marks from 100% to 90% and further creating an institutional reservation for in service candidates by discriminating the non-service candidates.
52. Whether the prospectus is prepared in violation of MCI Regulation and the same creates contradiction by itself. The High Court of Rajastan Bench at Jaipur rendered Judgment in Civil Writ No. 4005/2017 and Regulation 9 (IV) of Regulation 2000 is made to prevail over such procedures in that case where the restrictions of awarding of marks was prescribed by the State of Rajasthan. The court held that ;
the State Government could not be held justified in restricting grant of weightage of marks in the form of incentive to the limited extent of 10% irrespective of length of service rendered, when the proviso to Clause (IV) of Reg.9 envisages at the rate of 10% of marks for each year of service upto 30% of the marks secured in NEET Examination and such decision of the Government is not in conformity with the scheme to the proviso to Reg.9(IV) of the Regulations, 2000. At the same time, it is always open for the State Government to re-visit in identifying the remote and difficult areas of the State in fulfillment of the mandate of Clause (IV) of Reg.9 of Regulations, 2000."
The High Court of Punjab & Haryana also decided the case on 26.04.2017 in W.P. No. 7026 of 2017, wherein the Court directed the State Government of Punjab and Haryana to extend the benefit proviso of Regulation 9(IV) to provide medical institution as well. Further directed that the benefit of service in remote areas directly to the proviso 9(IV) of Regulation 2000.
53. In many States of our Country has recognized the importance of Regulation 9(IV) of MCI Regulation 2000. 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.
54. The relief sought for in the writ petition that there is no challenge regarding prospectus or NEET Examination, this Court is of the firm view that the very purpose of these Writ Appeals challenging the order passed by the Learned Single Judge is relating to the admission for postgraduate medical courses. Large number of candidates appeared in the NEET Exam are waiting for admission to postgraduate medical courses. Hence, the subject involved is of larger public interest of the candidates and further admission to the postgraduate courses is of general importance of public interest. When such large number of candidates and their interest are in stake, this Court cannot shut its eyes by restricting the relief sought for in the writ of petition and it is the duty of the Court to see that even in the absence of any prayer, the Court has to mould the reliefs. A pragmatic view is to be adopted in order to provide substantial justice to all concerned, since the case is relating to the students, who are aspiring for admission to postgraduate medical courses, the Court cannot throw away the candidates, not appeared before it. Hence, mere technicality raised by the learned counsel that no prayer sought for, deserves outright rejection.
55. Mr. Wilson, learned Senior Counsel cited the Full Bench Judgment of this Court in the case of Dr. Murali Vs. Dr. Kamalakanan and he has taken the Court to various pages of this judgment, but the judgment was pronounced on 01.10.1999, i.e., prior to the issue of amended MCI Regulations, 2000. Therefore, no consideration of this judgment is required. Further, he has cited the judgment rendered on 29.09.2001 in W.P. No. 14855 of 2001, which also deserves no consideration in view of amended Regulation.
56. Further, the legal principles laid down in Dr. Preethi Srivathsava case was considered by Their Lodships' in the case of Dinesh Singh Chowhan as well as Sudhir Vs. State of Kerala. Therefore, separate discussion on the principles in respect of Regulation 9 (IV) of Regulation,2000 is not required at present.
57. The Hon'ble Supreme Court of India in the case of Modern Dental College and Research Centre and Others Vs. State of Madhya Pradesh and others reported in (2016) 7 SCC 353 , the constitution Bench of the Hon'ble Supreme Court of India held that selection to be strictly on merits. The following paragraphs are relevant for the case on hand.
"103. The second/other aspect of Education is with regard to the implementation of the standards of education determined by the Parliament, and the Regulation of the complete activity of Education. This activity necessarily entails the application of the standards determined by the Parliament in all educational institutions in accordance with the local and regional needs. Thus, while Entry 66 List I dealt with determination and coordination of standards, on the other hand, the original Entry 11 of List II granted the States the exclusive power to legislate with respect to all other aspects of education, except the determination of minimum standards and coordination which was in national interest. Subsequently, vide the Constitution (Forty-second Amendment) Act, 1976, the exclusive legislative field of the State Legislature with regard to Education was removed and deleted, and the same was replaced by amending Entry 25, List III, granting concurrent powers to both Parliament and State Legislature the power to legislate with respect to all other aspects of Education, except that which was specifically covered by Entry 63 to 66 of the List I. 104. No doubt, in Bharti Vidyapeeth it has been observed that the entire gamut of admission falls under Entry 66 of List I. The said judgment by a Bench of two Judges is, however, contrary to law laid down in earlier larger Bench decisions. In Gujarat University, a Bench of five Judges examined the scope of Entry 2 of List II (which is now Entry 25 of List III) with reference to Entry 66 of List I. It was held that the power of the State to legislate in respect of education to the extent it is entrusted to the Parliament, is deemed to be restricted. Coordination and determination of standards was in the purview of List I and power of the State was subject to power of the Union on the said subject. It was held that the two entries overlapped to some extent and to the extent of overlapping the power conferred by Entry 66 of List I must prevail over power of the State. Validity of a state legislation depends upon whether it prejudicially affects coordination or determination of standards, even in absence of a union legislation. In R. Chitralekha v. State of Mysore[27], the same issue was again considered. It was observed that if the impact of State law is heavy or devastating as to wipe out or abridge the central field, it may be struck down. In State of T.N. & Anr. v. Adhiyaman Educational & Research Institute & Ors.[28], it was observed that to the extent that State legislation is in conflict with the Central legislation under Entry 25, it would be void and inoperative. To the same effect is the view taken in Dr. Preeti Srivastava and State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidalaya & Ors.[29] Though the view taken in State of Madhya Pradesh v. Kumari Nivedita Jain & Ors.[30] and Ajay Kumar Singh & Ors. v. State of Bihar & Ors.[31] to the effect that admission standards covered by Entry 66 of List I could apply only post admissions was overruled in Dr. Preeti Srivastava, it was not held that the entire gamut of admissions was covered by List I as wrongly assumed in Bharti Vidyapeeth. EPILOGUE:
107. Before parting with the matter, we may observe that we have decided the lis between the parties, but that by itself does not cure all the ills with which the system suffers and something more needs to be done on that front as well. It would be necessary to refer to the grievance voiced on behalf of the Appellants that admissions conducted even by an agency nominated by the State, under a state law or a central law may lack credibility. This concern has also been noticed by this Court in P.A. Inamdar. An astute and sagacious approach is also necessary to deal with the ground realities. This Court had earlier appointed committees headed by the retired High Court Judges in all the States to regulate the admissions and fee structure. This was a stopgap arrangement till suitable legislation was framed and once the admission process under a statutory law becomes operative, the grievance of all concerned on the subject of proper functioning of the regulatory mechanism will need to be properly addressed. It was brought to our notice that the Central Government itself had appointed a group of experts headed by Dr. Ranjit Roy Chaudhury vide notification dated July 07, 2014 to study the Indian Medical Council Act, 1956 and to make recommendations. The said Committee gave its report on September 25, 2014 suggesting reforms in the regulatory oversight of the medical profession by the Medical Council. The recommendations covered the subject of overseeing under graduate and post graduate medical education as well as other related issues. It was also pointed out that even the Parliamentary Standing Committee on Health and Family Welfare in its 92nd report on 'The functioning of Medical Council of India' presented to the Rajya Sabha and the Lok Sabha on March 08, 2016 has gone into the matter. There is perhaps urgent need to review the regulatory mechanism for other service oriented professions also. We do hope this issue will receive attention of concerned authorities, including the Law Commission, in due course.
147. Another argument that has been putforth is that the power to enact laws laying down process of admission in universities etc. vests in both Central and State Governments under entry 25 of the concurrent list only. Under entry 25 of concurrent list and erstwhile entry 11 of State List, the State Government has enacted various legislations that inter alia regulate admission process in various institutions. For instance, Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam, Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya Vidhi Sansathan Vishwavidyalaya Adhiniyam etc. were established by the State Government in exercise of power under entry 25 of concurrent list. Similarly, the Central Government has also enacted various legislations relating to higher education under entry 25 of concurrent list pertaining to centrally funded universities such as Babasaheb Bhimrao Ambedkar University Act 1994, Maulana Azad National Urdu University Act, 1996, Indira Gandhi National Tribal University Act, 2007 etc. Central Government may have the power to regulate the admission process for centrally funded institutions like IITs, NIT, JIPMER etc. but not in respect of other institutions running in the State. 148. In view of the above discussion, it can be clearly laid down power of Union under entry 66 of Union List is limited to prescribing standards of higher education to bring about uniformity in the level of education imparted throughout the country. Thus, the scope of entry 66 must be construed limited to its actual sense of determining the standards of higher education and not of laying down admission process. In no case is the State denuded of its power to legislate under Entry 25 of List III. More so, pertaining to the admission process in universities imparting higher education.
167.Merit is the cumulative assessment of worth of any individual based on different screening methods. Ideally, there should be one common entrance test conducted by the State both for government colleges and for private unaided educational institutions to ensure efficacy, fairness and public confidence. As rightly contended by Mr. Purushaindra Kaurav, Addl. Advocate General for the State of Madhya Pradesh appearing for AFRC, a common entrance test conducted by the State is more advantageous viz.:(i) having adhered to the time Schedule as laid down in Mridul Dhar case MANU/SC/0029/2005 : (2005) 2 SCC 65; (ii) multiple centres of examination and counselling throughout the State and a single window system for admission; (iii) standard question papers, preservation of question papers and answer books, prevention of leakage of question papers and fair evaluation and (iv) minimal litigation. That apart, procedure for preparation of merit list, counselling and allotments to various colleges is subject to Right to Information Act and thus ensures fairness and transparency in the entire process.
168. Having regard to the prevailing conditions relating to admissions in private professional educational institutions in the State of Madhya Pradesh, the Legislature in its wisdom has taken the view that merit based admissions can be ensured only through a common entrance test followed by centralized counselling either by the State or by an agency authorized by the State. In order to ensure rights of the applicants aspiring for medical courses Under Articles 14, 15 and 16 of the Constitution of India, legislature by the impugned legislation introduced the system of Common Entrance Test (CET) to secure merit based admission on a transparent basis. If private unaided educational institutions are given unfettered right to devise their own admission procedure and fee structure, it would lead to situation where it would impinge upon the "right to equality" of the students who aspire to take admissions in such educational institutions. Common Entrance Test by State or its agency will ensure equal opportunity to all meritorious and suitable candidates and meritorious candidates can be identified for being allotted to different institutions depending on the courses of study, the number of seats and other relevant factors. This would ensure twin objects:(i) fairness and transparency and (ii) merit apart from preventing mal-administration. Thus, having regard to the larger interest and welfare of the student community to promote merit and achieve excellence and curb mal-practices, it would be permissible for the State to regulate admissions by providing a centralized and single window procedure. Holding such CET followed by centralized counselling or single window system regulating admissions does not cause any dent on the fundamental rights of the institutions in running the institution. While private educational institutions have a 'right of occupation' in running the educational institutions, equally they have the responsibility of selecting meritorious and suitable candidates, in order to bring out professionals with excellence. Rights of private educational institutions have to yield to the larger interest of the community.
169. By holding common entrance test and identifying meritorious candidates, the State is merely providing the merit list of the candidates prepared on the basis of a fair common entrance test. If the screening test is conducted on merit basis, no loss will be caused to the private educational institutions. There is neither restriction on the entry of the students in the sanctioned intake of the institutions nor on their right to collect fees from the students. The freedom of private educational institutions to establish and run institution, impart education, recruit staff, take disciplinary action, admit students, participate in fixation of fees is in no way being abridged by the impugned legislation; it remains intact."
58. The short response affidavit filed on behalf of MCI was submitted during the course of the arguments by the learned Senior Counsel. The reply affidavit by the MCI extracting the judgments of the Hon'ble Supreme Court of India in Preethi Srivathsava case and further the binding character of the Regulation of the MCI interalia through various pronouncements of the Hon'ble Suprme Court of India is extracted in paragraph 8 as under;
It is further respectfully submitted that the Hon'ble Supreme Court has been pleased to reiterate the binding character of the Regulations of the Council, inter-alia, through the following pronouncements:-
(i).Dr. Narayana Sharma & Anr. Vs. Dr. Pankaj Lehkar & Others (2000) 1 SCC 44.
(ii).State of Punjab Vs. Dayanand Medical College (2001) 8 SCC 664.
(iii).State of MP & Ors vs. Gopal D. Tirthani & Ors (2003) 7 SCC 83.
(iv).Harish Verma & Ors Vs. Ajay Srivastava & Another- (2003) 8 SCC 69.
59. In paragraph 17 of the counter, the MCI reiterated the Regulation 9 (IV) of the aforesaid regulations. The entire counter mostly reiterates the pronouncement of the Hon'ble Supreme Court with regard to the importance of the MCI Regulation. In paragaraph 30, the counter ended as extracted below;
In light of the facts and submissions made hereinabove, it is submitted that as per the above quoted judgment passed by the Hon'ble Supreme Court in the case of Dinesh Singh Chauhan (supra) it is impermissible to have any reservation of seats in post graduate degree courses. The aforesaid fact and submissions have been for the kind consideration of this Hon'ble Court. It is prayed accordingly.
60. In support of merit list to be drawn by the State of Tamil Nadu by converting NEET marks from 100 to 90 and awarding 10 marks separately for experience is also secured deviation over the standards determined by the MCI Regulations. Sole object of the regulation of MCI is to maintain the standard of higher education, more specifically in Post Graduate Medical Courses in the Nation. On reading Clauses 16 and 17 under the Chapter IV merit list, creates a separate special marks not in consonance with Regulation 9 (IV) of the MCI Regulation, 2000 to that extend the same is to be declared as void and discriminatory.
61. In respect of the drawal of merit list as per clause 16 of the Prospectus of the State, provides 90 marks for NEET exam plus 10 marks for experience. Conversion of NEET marks itself amounts to impingement of the MCI Regulations. State has no authority to impinge the provisions of the MCI Regulations. Pursuant to the Judgment of the Hon'ble Supreme Court of India in SUDHIR v. STATE OF KERALA & DINESH SINsGH CHAUHAN. Thus, clause 16 of the prospectus is in violation of the scheme of preparation of merit list as contemplated under the MCI Regulation, 2000.
62. Clause 17(a) of the prospectus awards one mark for each completed year after the completion of CRRI (House Surgeon) shall be awarded as marks for experience for both service and non-service candidates to a maximum of 10 marks. This clause also encroaches the scope of maintenance of standards of education as determined in the MCI Regulation, 2000. For instance, a candidate who served 10 years as Doctor will automatically get 10 marks along with NEET Marks. A candidate who served for one year will get one mark. Such bonus mark sponsored at the sweet will of the State will certainly dilute the standards of higher education stipulated by Medical Council of India. Such an extraordinary bonus granted for merely putting service as Doctor without any condition certainly alien and not contemplated under the MCI Regulation, 2000. The basis on which such award of marks for all the candidates is not enumerated or a justifiable ground has been placed before this Court. Thus, clause 17(a) is also in violation of MCI Regulation.
63. Clause 17(b) of the prospectus awards one mark per year of service in rural areas, 2 marks per year of service in hilly and remote/difficult areas and 2 marks per year of service in any Government Hospitals, Primary Health Centres and Government Medical College Hospitals of Thiruvarur, Nagapattinam & Ramanathapuram Districts to the maximum of ten marks.
64. The logic behind the inclusion of Government Medical College Hospitals of Thiruvarur, Nagapattinam and Ramanathanpuram Districts remain unexplained by the State. In the absence of any convincing, justifiable reason, there is no scope for sustaining this nature of awardance of bonus marks in a clandestine manner. State is duty bound to justify the reason for awarding any incentives or bonus marks, barring the provisions contemplated under MCI Regulations, 2000. The scheme of awarding marks prescribed under the MCI Regulations are entirely different from the manner in which, the State of Tamil Nadu grants the incentive marks to the in-service candidates served in rural, hilly & remote difficult areas.
65. Thus, the question arises whether the scheme of award of incentive marks in the State prospectus are well within the legal regime of the principles laid down by the Hon'ble Supreme Court of India. For instance, the scheme of prospectus of State of Tamil Nadu, if implemented will create discrimination amongst service and non-service candidates.
66. To quote, an in-service candidate under the Central quote secured 800 marks in NEET Examination, will get 69% aggregate, but, the same in-service candidate under the State Prospectus will get 63% aggregate. State has no authority to create such an anomalous situation by prescribing a new method of allotment of incentive marks to in-service candidates. The logic adopted by the State has no intelligible difference amongst the in-service and non-service candidates. Hence, the precedents laid down by the Hon'ble Supreme Court of India, in the case of DINESH SINGH CHAUHAN, has not been followed by the State of Tamil Nadu so also the MCI Regulations, 2000. 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.
67. *The doctrine of legitimate expectation mooted out by the learned Senior Counsel, cannot have any relevance with regard to facts on hand. The Regulation 9(IV) of MCI Regulations provides incentive marks to in-service candidates. What is in question is, the scheme under deviated method of granting incentive to in-service candidate in the State prospectus, is not falling in line with the scheme enunciated under the MCI Regulations, 2000.
68. Therefore, all in-service candidates are bound to get the benefit of incentive marks under Regulation 9(4) of MCI Regulations. Hence, the argument deserves rejection.
69. The clause enunciated, not only creates discrimination,but also creates institutional reservation. Therefore, this court is of the firm view that such creation, when the clause is in contravention to the segment prescribed through MCI Regulation is to be declared as ultra virus to the statutory scheme formed through regulations framed by the MCI.
70. Accepting the declaration to work in Rural/ Hilly/ remote / difficult areas, the State of Tamil Nadu issued G.O. Ms. 29, Health and Family Welfare Department (MCA-1) Department, dated 08.02.2017. Subsequently the Government issued G.O.Ms. 86 of Health and Family Welfare Department (MCA-1) Department, dated 23.03.2017, stating that the G.O. 29 issued earlier is kept in abeyance for the present. Accordingly, the remote /difficult / Hilly areas were notified in the Annexure to the prospectus for the purpose of admission to the Post Graduate Course for the Academic Year 2017 -2018. Therefore, with regard to the notification required to be published by the State Government under Regulation 9 (IV) of Regulations 2000 is complied in the Annexure to prospectus. Hence, the notification with regard to the areas are not in dispute and the State Government is bound to follow in respect of notified areas for awarding incentive marks to in-service candidates in accord to Clause 9 (IV) of Regulations, 2000.
71. In view of the legal principles laid down by the Hon'ble Supreme Court of India in the related cases cited supra, in respect of the Medical Council of India, Post Graduate Medical Education Regulation, 2000, this Court is of the firm view 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.
Accordingly, the reliefs in these Writ Appeals are moulded as hereunder;
1. Clauses 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.
In view of the above directions, all these Writ Appeals are dismissed. No order as to cost.
To
1.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.
K.K.SASIDHARAN, J.
and S.M.SUBRAMANIAM, J.
(tar) P.D. Judgment in W.A.Nos.453, 484, 490, 491, 498, 499, 506, 527, 536 of 2017 and 537 to 546 of 2017 03.05.2017 http://www.judis.nic.in