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A cursory reading of these observations seems to indicate that once the minimum qualifying marks are prescribed for otherwise eligible candidates for short-listing them for admission to postgraduate courses, minimum qualifying marks prescribed for general category candidates and reserved category candidates must be uniform. But then follows para 22 which relies on the decision of this court in State of Madhya Pradesh vs. Kumari Nivedita Jain (supra) wherein prescription of lesser minimum qualifying marks in the entrance test for SC,ST and Other Backward Class candidates as compared to the minimum qualifying marks for general category candidates was approved. Even in earlier para 18 it is observed that if in the entrance test special category candidates obtain lesser marks than general category candidates even then they will be eligible for admission within their reserved quota. These observations indicate that for reserved category of candidates there can be separate minimum qualifying marks. Thus, on a conjoint reading of observations in paras 18, 21 and 22 of the Report it has to be held that the ratio of the decision in Sadhna Devis case (supra) is that even for reserved category candidates there should be some minimum qualifying marks if not the same as prescribed as bench marks for general category candidates. Thus, there cannot be any zero qualifying marks for reserved category candidates in the entrance test for admission to postgraduate courses. Hence, this judgment cannot be taken to have laid down that there cannot be lesser qualifying marks for reserved category candidates as compared to the general category candidates who are otherwise eligible and qualified for being considered for admission to postgraduate medical courses. That takes us to the consideration of a three Judge Bench decision of this Court in Postgraduate Institute of Medical Education & Research, Chandigarh & Ors., vs. K.L. Narasimhan & Anr., 1997 (6) SCC 283. Ramaswamy, J., speaking for the Bench had mainly to consider two questions; 1) whether there can be reservation under Articles 15(4) and 16(4) of the Constitution in connection with only one post in a discipline; and 2) whether reservation of seats in postgraduate courses was permissible as per Articles 14, 15 and 16 of the Constitution. Both the aforesaid questions were answered in the affirmative in favour of the schemes of reservations. So far as the question of reservation of seats when there is only one post in the discipline is concerned, decision rendered thereon by the three Judge Bench is expressly overruled by a Constitution Bench judgment of this Court in Postgraduate Institute of Medical Education & Research, Chandigarh vs. Faculty Association & Ors., 1998(4) SCC 1. However, so far as the second question is concerned, in the aforesaid judgment it was held that there can be reservation of seats in postgraduate courses as per the mandate of Articles 15(4) and 16(4). In the present proceedings, there is no dispute on this score. Hence the said judgment on the second point is not required to be reconsidered. However, certain observations are found in para 21 of the report wherein Ramaswamy, J., has observed that diluting of minimum qualifying marks in an entrance test for entry into postgraduate courses for reserved category of candidates cannot be said to be unauthorised or illegal. It has been observed that: Equally, a student, admitted on reservation, is required to pass the same standard prescribed for speciality or a superspeciality in a subject or medical science or technology. In that behalf, no relaxation is given nor sought by the candidates belonging to reserved categories. What is sought is a facility or opportunity for admission to the courses, Ph.D., speciality or superspeciality or high technology by relaxation of a lesser percentage of marks for initial admission than the general candidates. For instance, if the general candidate is required to get 80% as qualifying marks for admission into speciality or superspeciality, the relaxation for admission to the reserved candidates is of 10 marks less, i.e., qualifying marks in his case would be 70%. A doctor or a technologist has to pass the postgraduation or the graduation with the same standard as had by general candidate and has also to possess the same degree of standard. However, with the facility of possessing even lesser marks the reserved candidate gets admission.

Now, so far as these observations are concerned, as the court was not called upon to consider the question whether prescription of lesser qualifying marks for SC,ST and other reserved category candidates for admission to postgraduate or super speciality courses in medicine was permissible, they are clearly obiter. So far as admission to super speciality courses are concerned, in the present reference we are not concerned with the said question, hence, we need not say anything about the same. However, so far as admission to postgraduate courses is concerned the question of providing of lesser qualifying marks for reserved category candidates for admission to these courses directly arises for our consideration. Hence, the obiter observations in the aforesaid case on this aspect do require consideration for their acceptance or otherwise. As per the scheme of Entry 66 of List I and Entry 25 of List III of the Seventh Schedule of the Constitution of India, as discussed earlier goes, it is not possible to countenance the submission of Shri Salve, learned senior counsel for the Medical Council of India and other counsel canvassing the same view that the question of short-listing of eligible candidates who were otherwise duly qualified for being admitted to postgraduate courses in Medicine is not within the domain of State authorities especially in view of the fact that the Parliament, in exercise of its legislative powers under Entry 25 of List III, has still not spoken on the point nor does the Indian Medical Council Act, 1956 enacted under Entry 66 of List I covers this question. Hence, while providing for entrance test as an additional requirement for eligible candidates for being short-listed in connection with admission to smaller number of seats available in postgraduate courses, it cannot be said that the State authorities in exercise of their constitutional right under Article 15(4) cannot give additional facilities to reserved category of candidates vis-a-vis their requirement of getting minimum qualifying marks at such entrance tests so that seats reserved for them may not remain unfilled and the reserved category of candidates do get adequate opportunity to fill them up and get postgraduate education on the seats reserved for them which in their turn would not detract from the availability of remaining seats for general category candidates. Thus, the observations in para 21 of the aforesaid judgment that there can be lesser qualifying marks for admission to postgraduate courses for reserved category of candidates cannot be found fault with. It is made clear that similar observations for admission to super speciality courses and the relaxation of minimum qualifying marks for candidates appearing at the entrance test for such courses are not being approved by us as we are not required to consider that aspect of the matter, as noted earlier. As it will be presently shown, once reservation of seats in postgraduate courses under Article 15(4) is accepted then even lesser bench marks being prescribed for reserved category of candidates in the common entrance examination which they undertake along with general category of candidates would in substance make no difference so far as the un-reserved seats available to general category of candidates are concerned. In a later three Judge Bench Judgment of this Court in Medical Council of India vs. State of Karnataka & Ors., 1998(6) SCC 131, it was held that in the light of Sections 10-A, 10-B, 10-C, 19-A and 33(fa), (fb), (fc), (j), (k) and (l) of the Indian Medical Council Act, 1956 fixation of admission capacity in medical colleges/institutions is the exclusive function of Medical Council of India and increase in number of admissions can only be directed by the Central Govt. on the recommendation of the Medical Council of India. This function of the Medical Council of India was upheld in the light of Entries 66 List I and 25 of List III thereof. Now it becomes at once obvious that providing for number of seats to be filled up by eligible candidates in any medical course imparted by medical colleges or medical institutions will have a direct nexus with coordination and determination of standards in medical education, as larger the seats in medical colleges wherein students can be admitted to MBBS or even higher courses in medicine, larger infrastructure would be required by way of beds and eligible and efficient teachers and all other infrastructure for imparting proper training to the admitted students. Once this exercise is clearly within the domain of the Medical Council of India in the light of the aforesaid statutory provisions it becomes obvious that Entry 66 of List I of the Seventh Schedule would hold the field and consequently States will not be empowered under entry 25 of List III to legislate on this topic as such an exercise would be subject to legislation under Entry 66 of List I which would wholly occupy the field. However, a moot question remains whether given the permissible intake capacity for admitting students in any medical college as laid down by the Medical Council of India can the available intake capacity of students be regulated at the admission stage when the number of eligible candidates aspiring to be admitted is larger than the available intake capacity? This question will remain outside the domain of the Medical Council of India under the aforesaid Act. As we have discussed earlier, there being no parliamentary legislation on this aspect even under entry 25 of List III of the Seventh Schedule, the short-listing of eligible candidates for being admitted to the available permitted intake capacity in medical colleges will obviously remain in the domain of State legislature and State executive on the combined reading of entry 25 of List III as well as Article 162 of the Constitution of India. In view of the aforesaid discussion, it therefore, becomes clear that once seats in postgraduate medical courses are reserved for SC, ST and OBC candidates as per Article 15(4) of the Constitution the question as to how admission to limited number of general seats and reserved seats are to be regulated will remain in the domain of the State authorities running these institutions. They can, therefore, legitimately resort to the procedure of short-listing of otherwise eligible candidates. While undertaking this exercise of short-listing, the state authorities have to see how best in a given academic year the reserved seats and general category seats can be filled in by available and eligible candidates. The question is while undertaking the task of short-listing of available eligible candidates vis-a-vis limited number of seats that may be available for being filled in in a given academic year, uniform qualifying bench marks for passing the entrance test should be prescribed for both the general category candidates as well as reserved category candidates or there can be lesser bench marks for the latter category of students. If due to non-availability of reserved category candidates who could obtain minimum qualifying marks prescribed for all the examinees whether there can be any legitimate dilution of minimum qualifying marks for these reserved category of question. candidates and if so, to what extent is the moot In the case of M.R. Balaji & Ors. vs. State of Mysore, IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 1963 Supp.(1) SCR 439, a Constitution bench of this court was concerned with the extent of reservation which could be legally permissible under Article 15(4) of the Constitution of India. Gajendragadkar, J., speaking for the Constitution bench held that reservation of 68% seats in educational institutions was inconsistent with the concept of special provision authorised by Article 15(4). It was then observed as under : Reservation should and must be adopted to advance the prospects of weaker sections of society, but while doing so, care should be taken not to exclude admission to higher educational centres of deserving and qualified candidates of other communities. Reservations under Arts.15(4) and 16(4) must be within reasonable limits. The interests of weaker sections of society, which are a first charge on the States and the Centre, have to be adjusted with the interests of the community as a whole. Speaking generally and in a broad way, a special provision should be less than 50%. The actual percentage must depend upon the relevant prevailing circumstances in each case. The object of Art.15(4) is to advance the interests of the society as a whole by looking after the interests of the weaker elements in society. If a provision under Art.15(4) ignores the interests of society, that is clearly outside the scope of Art.15(4). It is extremely unreasonable to assume that in enacting Art.15(4), Parliament intended to provide that where the advancement of the backward classes or the Scheduled Castes and Tribes were concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored. Considerations of national interest and the interests of the community and the society as a whole have already to be kept in mind.

(Emphasis supplied) It is obvious that only because a person who has passed MBBS examination and is made eligible for admission to postgraduate course is paid stipend during the course of his studies at postgraduate level, he cannot be said to have been appointed to the post of a registrar. It may be that he has to work as a trainee registrar during the course of his study to obtain practical training but that is a part of the curriculum of studies and not because he is appointed to the post of the registrar after undergoing selection process whereunder a person from open market is recruited as a medical officer and whose recruitment as medical officer would be subject to rules and regulations and would not terminate only because his training period is over. In fact such a full-fledged medical officer has no training period. He has if at all probation period. In case of a trainee registrar who has to work as such during the course of his studies as a postgraduate student on the other hand, his work as registrar would be co-terminus with his passing the postgraduate examination as M.D. or M.S./M.D.S. as the case may be. He is also not liable to be transferred as a full-fledged registrar, duly appointed as such, is liable to be transferred due to exigencies of service. Thus, the working of such students during the course of study as residents whether on full payment or on stipendary payment would make no difference and they cannot be said to be holding any civil post in any hospital as full- fledged medical officers. Consequently, Article 335 of the Constitution of India cannot by itself be applied for regulating the admission of eligible reserved category students to postgraduate medical courses in the seats reserved for them under Article 15(4) of the Constitution of India. The next question that falls for consideration that even assuming that Article 335 cannot be pressed in service while considering the question of admission of eligible and qualified candidates for enabling them to pursue courses of postgraduate medical studies the guidelines laid down by the Medical Council of India pursuant to the regulations made under Section 33 of the Indian Medical Council Act, even though persuasive in nature and not mandatory, can be totally by-passed or ignored by the State authorities concerned with short-listing of candidates for admission to limited seats available in medical institutions imparting postgraduate medical education? The answer obviously would be in the negative. The guidelines laid down by the Medical Council of India though persuasive have to be kept in view while deciding as to whether the concession or facility to be given to such reserved category of candidates should remain within the permissible limits so as not to amount to arbitrary and unreasonable grant of concessions wiping out the concept of merit in its entirety. Consequently, it cannot be said that even though short-listing of eligible candidates is permissible to the State authorities, while doing so, the State authorities can completely give a go-by to the concept of merit and can go to the extent of totally dispensing with qualifying marks for SC,ST and OBC candidates and can short-list them for being considered for admission to reserved categories of seats for them in postgraduate studies by reducing the qualifying marks to even zero. That was rightly frowned upon by this court in Sadhana Devis case (supra) as that would not amount to short-listing but on the contrary would amount to completely long listing of such reserved category candidates for the vacancies which are reserved for them and on which they would not be entitled to be admitted if they did not qualify according to even reduced bench marks or qualifying marks fixed for them. As seen earlier, keeping in view the ratio of the Constitution bench of this court in M.R. Balajis case (supra) it must be held that along with the permissible reservation of 50% of seats for reserved category of candidates in institutions imparting postgraduate studies, simultaneously if further concessions by way of facilities are to be given for such reserved category of candidates so as to enable them to effectively occupy the seats reserved for them, such concessions by way of dilution of qualifying marks to be obtained at the entrance test for the purpose of short-listing, can also not go beyond the permissible limits of 50% of the qualifying marks uniformly fixed for other candidates belonging to general category and who appear at the same competitive test along with the reserved category of candidates. It is found from the records of these cases that qualifying marks at the entrance test for general category of candidates are fixed at 50%. In fact such is the general standard of qualifying marks suggested by the Medical Council of India even at the stage of entrance examination to MBBS course which is at the gross-root level of medical education after a student has completed his secondary education. Thus it would be proper to proceed on the basis that minimum qualifying marks for clearing the entrance test by way of short-listing for getting admitted to postgraduate medical courses uniformly for all candidates who appear at such examination should be 50% but so far as reserved category of candidates are concerned who are otherwise eligible for competing for seats in the postgraduate medical courses, 50% reduction at the highest of the general bench marks by way of permissible concession would enable the State authorities to reduce the qualifying marks for passing such entrance examination up to 50% of 50% i.e. 25%. In other words, if qualifying marks for passing the entrance examination for being admitted to postgraduate medical courses is 50% for a general category candidate, then such qualifying marks by way of concession can be reduced for reserved category candidates to 25% which would be the maximum permissible limit of reduction or deviation from the general bench marks. Meaning thereby, that a reserved category candidate even if gets 25% of the marks at such a common entrance test he can be considered for being admitted to the reserved vacancy for which he is otherwise eligible. But below 25% of bench marks for reserved category of candidates, no further dilution can be permitted. In other words, concession or facility for reserved category of candidates can remain permissible under Article 15(4) up to only 50% of bench marks prescribed for general category candidates. The State cannot reduce the qualifying marks for a reserved category of candidate below 25% nor can it go up to zero as tried to be suggested by Shri P.P.Rao, learned senior counsel for the State of Madhya Pradesh as that would not amount to the process of short-listing but would in fact amount to long listing or comprehensive listing of such reserved category of candidates as seen earlier. Any such attempt to further dilute the qualifying marks or bench marks for reserved category of candidates below 25% of the general passing marks would be violative of the provisions of Article 15(4) as laid down by the Constitution Bench in M.R.Balajis case (supra) and would also remain unreasonable and would be hit by Article 14 of the Constitution of India. Within this sliding scale of percentages between 25% and 50% passing marks appropriate bench marks for passing the entrance test examination can be suitably fixed for SC/ST and OBC candidates as exigencies of the situation may require. But in no case the qualifying marks for any of these reserved categories of students can go below 25% of the general passing marks. Any reserved category candidate who gets less than 25% of marks at the entrance examination or less than prescribed reduced percentage of marks for the concerned category between 50% and 25% of passing marks cannot be called for counselling and has to be ruled out of consideration and in that process if any seats reserved for reserved categories concerned remains unfilled by candidates belonging to that category it must go to the general category and can be filled in by the general category candidate who has already obtained 50% or more marks at the entrance examination but who could not be accommodated because of lesser percentage of marks obtained by him qua other general category candidates in the limited number of seats available to them in a given institution in postgraduate studies. As we will presently show even if minimum passing marks in the entrance test for admission to postgraduate courses is either reduced to 25% uniformly for all the candidates or is reduced and diluted only for reserved category of candidates, the net result would remain substantially the same. This aspect can be highlighted by taking an illustration. Suppose there are six seats in a given postgraduate medical course. Then applying the ratio of 50% permissible reservation of seats for reserved category of candidates like SC/ST and OBCs three seats get reserved, one each for SC,ST and OBC while three seats will remain available to general category of candidates passing the common entrance test. On the basis of this illustration let us take a hypothetical case of 13 eligible candidates who have passed basic MBBS examination and are duly qualified to compete for the six seats in a given course of postgraduate study. These 13 candidates undertake the same entrance test and all of them as a result of the said test obtained marks as under : A 75 out of 100, B 70, C(SC) 65, D 60, E(SC) 55, F51, G50, H(OBC) 48, I 42, J(ST) 40, K35, L30, M25, N (SC) 21. In the aforesaid illustration C, E and N are SC candidates, H is OBC and J is a ST candidate. Now if 50% passing marks are uniformly applied to all of them as tried to be suggested by learned counsel for the petitioners, the following picture will emerge : Situation No.1: Seat numbers 1,2, and 3 are general seats, 4 reserved for SC, 5 reserved for ST and 6 reserved for OBC. If 50% passing marks are uniformly applied to seat nos.1,2,3,4,5 & 6 : Seat no.1 will go to A, 2 to B, 3 to C (SC), 4 to E (SC), seat nos.5&6 will not get filled in by the reserved category candidates as there are no ST or OBC candidates who have obtained 50% and more marks. These two seats which remain unfilled will go to D and F general category candidates who have obtained more than 50% marks, but who could not be accommodated in the seats available to general category of candidates as the last candidate in the general category who got admission though SC, was having 65% marks. Thus the situation would be the two seats i.e. seat nos. 5 and 6 which are reserved for ST and OBC and were otherwise not available to general category of candidates would not go to eligible and qualified ST and OBC candidates namely, H and J even though they had obtained MBBS degrees and had the basic qualification and eligibility for being admitted to the seats reserved for them. That may affect the real purpose underlying reservation under Article 15(4). Situation No.2: We may now take the alternative situation for consideration : If the minimum qualifying marks are reduced to 25% for all categories of candidates to the rock-bottom permissible limit including SC/ST and other reserved category candidates, then the following picture would emerge : Seat no.1 will go to A, seat no.2 will go to B, seat no.3 will go to C(SC), seat no.4 which is reserved for SC candidate will go to E, seat no.5 which is reserved for ST will go to J, seat no.6 which is reserved for OBC will go to H. All six seats will be filled up by A,B, C,E,J & H. Thus even if the minimum passing marks are uniformly reduced to 25% which is the permissible rock- bottom as seen earlier the general category candidates will get the same seats which would have been available to them even if the minimum qualifying marks for admission would have been uniformly kept at 50% for all candidates at the entrance test. But what will happen is, that by reduction of these qualifying marks to 25% all the reserved category seats 4 to 6 will get filled in by otherwise eligible and qualified reserved category candidates E,J and H and there will remain no occasion for making any of such seats available to left out general category candidates like D and F for whom they were not meant even otherwise and reservation of seats under Article 15(4) would get fully fructified.

The submission, therefore, that there need not be any qualifying marks prescribed for the common entrance examination has to be rejected. We have, however, to consider whether different qualifying marks can be prescribed for the open merit category of candidates and the reserved category of candidates. Normally passing marks for any examination have to be uniform for all categories of candidates. We are, however, informed that at the stage of admission to the M.B.B.S. course, that is to say, the initial course in medicine, the Medical Council of India has permitted the reserved category candidates to be admitted if they have obtained the qualifying marks of 35% as against the qualifying marks of 45% for the general category candidates. It is, therefore, basically for an expert body like the Medical Council of India to determine whether in the common entrance examination viz. PGMEE, lower qualifying marks can be prescribed for the reserved category of candidates as against the general category of candidates; and if so, how much lower. There cannot, however, be a big disparity in the qualifying marks for the reserved category of candidates and the general category of candidates at the post-graduate level. This level is only one step below the apex level of medical training and education where no reservations are permissible and selections are entirely on merit. At only one step below this level the disparity in qualifying marks, if the expert body permits it, must be minimal. It must be kept at a level where it is possible for the reserved category candidates to come up to a certain level of excellence when they qualify in the speciality of their choice. It is in public interest that they have this level of excellence.