N Civil Appeal No 6016 of 1983 etc
From the Judgment and Order dated 351983 of the Alla habad High Court in Civil Misc
Writ Petition No nil of 1983
Yogeshwar Prasad RK Garg Mrs Rani Chhabra VJ 664 Francis NM Popli and DK Garg for the Appellants
Anil Dev Singh and Mrs Shobha Dikshit for the Respondents
1982 issued by the Government of Uttar Pradesh laying down the qualifica tion regarding eligibility of a candidate to be considered for admission to the post graduate degree in MD MS and diploma course in MD MS etc
on the basis of merit in accordance with the Regulations made under the Indian Medi cal Council Act is invalid as it trenches upon Entry 66 of List I of the Seventh Schedule to the Constitution
Civil Appeal No 6119 of 1983 is against the judgment and order dated 224
1983 made in Civil Misc
Writ Petition No 946 of 1983 by the High Court of Allahabad dismissing the writ petition holding that it was within the competence of the State Government to issue the aforesaid notice laying down the qualification of eligibility for being considered for admission to the post graduate course by issuing notice dated 15121982 and that the said notice is not repugnant to or encroach upon the field covered by Entry 66 of the List I of the Seventh Schedule to the Constitution
Special leave petition No 7925 of 1983 out of which Civil Appeal No 6016 of 1983 arises is also directed against the order dated 351983 summarily dismissing the writ petition No Nil raising the identical question ie challenging the aforesaid notice dated 15121982 issued by the State of Uttar Pradesh
The other writ petitions have been filed before this Court challenging also the power of the State of UP to such notice dated 15121982 and raising the similar ques tion of law
The salient facts of all these cases in brief are as fol lows In accordance with the provisions of Section 33 of the  the Medical Council with the previous sanction of the Central Government made the Regulations laying down the standards for proficiency to be obtained and the practical training to be undertaken in medical institutions for grant of recognised medical quali fication
The said Regulations as approved by the 665 Central Government lay down the criteria for selection of candidates for post graduate training as follows a Students of post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course
All selection for post graduate stud ies should be conducted by the Universities
b The candidates should have obtained full registration ie they must have completed satisfactorily one year of compulsory rotating internship after passing the final MBBS exami nation and must have full registration with State Medical Council
c They must subsequently have done one year s housemanship prior to admission to the post graduate degree or diploma course
House manship should preferably be for one year in the same subject or at least six months in the same department and the remain ing six months in an allied department provid ed that in departments like Radiology Anaes thes biologyphysical medicine and Rehabili tion where suitable candidates who have done housemanship in Medicine andor in the surgery may be considered as sufficient
Must have alternatively worked as a Full time postgraduate student in a manner equivalent to housemanship requirements in the department concerned before taking up the post graduate courses
 The post graduate Committee was of the opinion that in order to determine the merit of a candidate for admission to post graduate medical courses i his performance at the MBBS examination ii his performance during the course of internship and housemanship for which a daily assessment chart be maintained and iii the report of the teachers which is to be submitted periodically may be considered
Alternatively the authorities concerned may conduct competitive entrance examination to determine the merit of a candidate for admission to post graduate medical courses
666 The period of training for MD MS shall be three years after full registration including one year of house job or equivalent thereof
 The State Government issued a notice on 1510
1982 inviting applications for admission to the various post graduate courses in degree and diploma in the different specialities of the medical colleges
In para 4 of the said notice it has been specifically stated that the minimum eligibility qualification of the applicants would be accord ing to the recommendations of Medical Council of India
There are other terms and conditions regarding filling up of the seats of the various disciplines which being not rele vant for consideration in these matters are not mentioned herein
The terms and conditions of the said notice clearly stated that the admission will be made as per existing rules and regulations of the Government and the college and recom mendations of the Medical Council of India
Thereafter a Government Order dated 15121982 was issued by the Govern ment wherein it has been provided in para 6 to the following effect No candidate shall be eligible for admission to postgraduate Degree or Diploma Course who has obtained less than 55 and 52 marks respectively for the two courses Degree  Diploma in merit calculated in accordance with para 2 of the said notice Para 2 of this notice lays down the manner of determin ing the merit of a candidate for the purpose of considering his admission to the post graduate course in State Medical Colleges
In accordance with the said Government Order dated 15121982 a candidate in order to be eligible for consid eration for admission to the post graduate course on merit must have secured 55 marks for admission to post graduate degree course and 52 marks for admission to the post gradu ate diploma course
Thus a candidate having not secured the requisite marks in MBBS examination will be ineligible for consideration on the basis of merit for admission to the various post graduate courses in medical college
The unsuc cessful candidates who are not eligible for consideration according to this Government Order have questioned the power  of the State Government in making the aforesaid order on the ground that the Medical Council by its Regulations has already laid down the requisite criteria or standards for admission to the post graduate courses in the Medical Colleges in accordance with the merits of the candidates con 667 cerned and as such the State Government is not competent to lay down further eligibility qualification for the candi dates for being considered for admission in the post gradu ate courses both in the degree and diploma courses
It has also been contended that the State Government is not compe tent to lay down or prescribe the said qualification which it is alleged encroaches upon the power of the Central Government as provided in Entry 66 of List 1 of the Seventh Schedule
It has also been pleaded in the petition that Entry 25 of List III of Seventh Schedule to the Constitution is subject to the provisions of Entry 66 of List I and as such the said Government Order being repugnant to the Regu lations made by the Indian Medical Council and approved by the Central Government pursuant to Section 33 of the  is invalid
The writ petition was heard and was dismissed on 22nd April 1983 by the High Court of Allahabad holding that the State Government is competent to make the Order under Entry 25 of List III of the Seventh Schedule to the Constitution in exercise of its executive power under Article 162 of the Constitution of India
It was further held that the said Government Order does not in any way encroach upon or conflict with the power of the Central Government to make orders under Entry 66 of List I of Seventh Schedule to the Constitution as the screening envisaged on the basis of the minimum percentage of marks acts in further implementation of the Regulations made under the 
It was also held that the notification in question is prospective in its terms as it applies to all candidates who sought admission on or after 1512
It is against this judgment and order the Civil Appeal No 6119 of 1983 has arisen by special leave
Similarly Civil Appeal No 6016 of 1983 has also arisen by special leave against the judgment and order of High Court of Alla habad dated 351983 made in writ petition No nil of 1983
Both these Civil Appeals as well as the writ petitions concern the admission of students in the post graduate courses in the Medical Colleges for the session commencing on 1st April 1983 and ending on 31st of March 1984 in case of diploma course or ending on 31st March 1985 in case of Degree course
Undoubtedly this session has long expired and as such the applicants in the writ petitions or the appellants in the said appeals will  not be benefitted even if the decision is 668 rendered in their favour
However we deem it fit and proper to dwell upon the only contention raised before this Court regarding the validity of the Government order dated 1512
1982 whereby the Government of Uttar Pradesh have specifi cally laid down in para 6 of the Order the eligibility qualification ie obtaining of 55 marks or 52 marks for being eligible for consideration for admission in the post graduate degree or diploma courses respectively in accord ance with the Regulations made by the Indian Medical Council for consideration strictly or merit for admission to the said post graduate courses both degree and diploma
It has been urged with some vehemence that it is within the prov ince of Medical Council to make recommendations under Sec tion 33 of the prescribing the standards or criteria for selection of candidates for post graduate training and the Central Government accepted them by framing Regulations
The State Government by its order dated 15121982 prescribed a further criteria or standard of eligibility for the candidates to be considered for admission to post graduate degree or diploma course and this is in conflict with the Regulations and as such it is in valid as it encroaches upon the power of the Central Govern ment provided in Entry 66 of List I of the Seventh Schedule of the Constitution
In order to consider and determine this question it is relevant to look into the Regulations made by the Indian Medical Council under Section 33 of the said Act
The Regu lations have been enumerated at pages 4 5
These Regulations thus provide that the students of postgraduate training are to be selected strictly on merit judged on the basis of academic record in the under graduate course and that all selections for post graduate studies are to be conducted by the Universities besides looking to the other criteria regarding rotating internship housemanship etc
The Govern ment of Uttar Pradesh issued a notice on 15101982 inviting applications in prescribed form for admission to the post graduate degree and diploma courses for the different Medi cal Colleges of the province
In para 4 of the said notice it has been specifically provided that the minimum eligibil ity qualification of the applicants would be according to the recommendations of the Medical Council of India
On 15121982 the Government issued another order laying down the policy and procedure to be followed with regard to the admission of candidates to the post graduate courses both degree and diploma in State Medical Colleges
In this order in para 6 it has been specifically provided that no candi date shall be eligible for admission for post graduate degree or diploma course who has obtained less than 55 and 52 marks respectively 669 for the two courses degree and diploma on merit to be calculated in accordance with para 2 of the said order
 It is this eligibility criteria laid down in the said Govern ment order which is the subject matter of challenge in these appeals and writ petitions before this Court
The said order modifies to a certain extent the earlier notification issued on 15101982 inviting applications for admission to the post graduate courses as per notification dated 312
In the notification dated 3121980 the criteria for admission to the post graduate courses was on the basis of merit only
In para 2 of the said order the manner how the merit is to be determined has been laid down
In that order there was no such criteria laid down as men tioned in the Government order dated 1512
Two ques tions arise for our consideration which are firstly whether the State Government is competent to make the aforesaid order in question in exercise of its executive powers under Article 162 of the Constitution
This Article specifically provides that the executive powers of the State shall extend to matters with respect to which the legislature of the State has power to make laws
Entry 25 of the Concurrent List ie List III of the Seventh Schedule to the Constitu tion provides as follows 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
 The State Government can in exercise of its executive power make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the State Legislature
The impugned order made by the State Government pursuant to its executive powers laying down the eligibility qualification for the candidates to be consid ered on merits for admission to the post graduate courses in Medical Colleges in the State is valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe the power of the Central Govern ment as well as the Parliament provided in Entry 66 of List I Entry 66 of List I is in the following terms Co ordination and determination of standards in institutions for higher education or re search and scientific and technical institu tions
 670 The only question to be considered is whether the im pugned order 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 had made certain recommendations which have been embodied in the 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
These Regulations as has been quoted hereinbefore clearly prescribe that the candi dates should be selected strictly on merit judged on the basis of academic record in the undergraduate courses ie MBBS Course and this selection should be conducted by the University
There are also other eligibility qualifications provided in the said Regulations namely the candidates must have obtained full registration ie they must have complet ed satisfactorily one year of compulsory rotating internship after passing the final MBBS examination and also they must have done one year s housemanship prior to admission to the post graduate degree or diploma course
The impugned Government order dated 1512
1982 lays down the criteria or eligibility qualification ie obtain ing of 55 marks by candidates seeking admission in the post graduate degree course and obtaining of 52 marks by candidates seeking admission to postgraduate diploma course for being considered for selection
Entry 25 conforms on the State Government as well as the State Legislature the power to make orders in respect of matters mentioned in Entry 25 of List III of the Seventh Schedule to the Constitution ie with regard to medical education the only limitation being that such order of the State legislature will be subject to the provisions of Entry 66 of List I ie Co ordination and determination of standards in institutions for higher educa tion or research and scientific and technical institutions
The order in question merely specifies a further eligibility qualification for being considered for selection for admis sion to the post graduate courses degree and diploma in the Medical Colleges in the State in accordance with the criteria laid down by Indian Medical Council
This does not in any way encroach upon the Regulations that have been framed under the provisions of Section 33 of the 
On the other hand in order to promote and further the determination of standards in institutions for higher education the State Government who runs these colleges provide an additional eligibility qualification
A similar question crept up in the case of State of AP  Ors vs Lavu Narendranath Ors
  In 671 that case the Government of Andhra Pradesh prescribed for the first time in July 1970 an entrance test for admission to the Medical Colleges and also prescribed the standard for eligibility for the test
The validity of this order pre scribing the entrance test was challenged by some unsuccess ful candidates on the ground that it encroaches upon the central subject listed in Entry 66 of List I of Seventh Schedule to the Constitution
It was held by the Court that this test prescribed by the Government in no way militated with the powers of the Parliament under Entry 66 of List I of the Seventh Schedule to the Constitution
It was also held that the Entry conferred power on the Parliament to make laws for laying down how standards in an institution for higher education are to be determined and how they can be co ordinated
It had no relation to a test prescribed by Government or by a university for selection of a number of students from out of a large number applying for admission to a particular course of study
In the instant case the number of seats for admission to various post graduate courses both degree and diploma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these courses of study
In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by Regulations made under the  cannot be said to be in conflict with the said Regulations or in any way repug nant to the said Regulations
It does not in any way en croach upon the standards prescribed by the said Regula tions
On the other hand by laying down a further qualifica tion of eligibility it promotes and furthers the standard in an institution
The Government who runs these colleges has the right to prescribe a test of eligibility as has been held by this Court in the case referred to above
Similar question came up for consideration before this Court in the case of R Chitralekha and Anr
vs State of Mysore  Ors
  In that case the Government of Mysore appointed one Selection Committee for settling the admissions to the Engineering Colleges and another such committee for settling admissions to Medical Colleges
By a letter the Government of Mysore intimated the Director of Technical Education that 25 of the maximum marks for the examination in the optional subjects shall be fixed as interview marks for making selection of candidates for admission to the Engineering Colleges
The Selection Commit tee fixed the minimum 672 marks for interview at 75
On the basis of the marks ob tained by the candidate in examination as well as in inter view selections were made
This was challenged as infring ing upon the power of the parliament to make laws under Entry 66 of List I of the Seventh Schedule to the Constitu tion
It had been held that if the State Legislature pre scribed a higher percentage of marks for extra curricular activities in the matter of admission to colleges it could not be held that such an order directly encroached upon the  field covered by Entry 66 of List I of Seventh Schedule to the Constitution
The State Government was held to be within its rights for prescribing qualifications for admission to colleges so long as its action did not contravene any other law
Similar observation has been made also by this Court in the case of Minor P Rajendran vs State of Madras  Ors  On a consideration of the aforesaid decisions we are unable to hold that the impugned order dated 15121982 has in any way contravened or encroached upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List I of Seventh Schedule to the Constitution
There is no conflict between the Regulations and also the order in question
The State Government by laying down the eligibili ty qualification namely the obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the Regulations made under the nor does it infringe the central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution
The order merely provides an additional eligibility qualification
We are in full agree ment with the reasoning and conclusion of the High Court in this respect
This contention therefore in our considered opinion is without any merit
It is pertinent to mention in this connection that the number of seats allotted to each of the prescribed courses is on the basis of two seats per professor and there is a crying necessity in the State for more experts in various disciplines in Medicine and Surgery etc
It is incumbent on the State Government to see that all these seats earmarked for each of these disciplines or courses are filled up
It appears from Annexure D to the petition in CA No 6119 of 1983 that quite a considerable number of seats in various disciplines were kept vacant as the applicants did not fulfil the eligibility qualification framed by the State Government by its aforesaid order and as a result several professors and Assistant professors who are meant for imparting teaching in these disciplines were kept idle though a considerable fund had to be expended for meeting their emoluments It is for the 673 State to consider and to see that the seats are filled up in all the disciplines and they are not left vacant in spite of a large number of applicants applying for admission in the various disciplines and the State Government has to evolve such criteria of eligibility that all the seats in different MD MS degree and diploma courses are filled up
For the reasons aforesaid the judgments and orders made by the High Court of Allahabad on April 22 1983 and May 3 1983 are confirmed and both the Civil Appeals as well as all these writ petitions are dismissed
There will however be no order as to costs
SR Appeals  Petitions dismissed


Summary:
While the Central Government as well as the Parliament has the power to make laws under Entry 66 of List I of the Seventh Schedule for the purpose of coordination and deter mination of standards in institutions for higher education or research and scientific and technical institutions the State Government by virtue of the executive powers vested under Article 162 of the Constitution has also the power to make laws under Entry 25 of the Concurrent List III of the Seventh Schedule in respect of Education including techni cal 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
In accordance with the provisions of section 33 of the  the Medical Council with the previous sanction of the Central Government made the Regulations laying down the standards of proficiency to be obtained and the practical training to be undertaken in medical institutions for grant of recognised medical quali fication
The said Regulations lay down the criteria for selection of candidates for post graduate training and one such criteria is students of post graduate training should be selected strictly on merit judged on the basis of academ ic record in the undergraduate course
While inviting applications by its notice dated 151082 for admission to the various post graduate courses in degree and diploma in the 662 different specialities the State Government issued an order dated 151282 para 6 of which was to the effect that No candidate shall he eligible for admission to post graduate degree or diploma course who has obtained less than 55 and 52 marks respectively for the two courses Degree and Diploma in merit calculated in accordance with para 2 of the said notice
 Some of the candidates who were denied admission on the ground that they have obtained less than the prescribed percentage of marks have approached the Supreme Court under Article 32 of the Constitution and some others have come by way of special leave having lost their writ petitions before the Allahabad High Court
The only question that arose was the competency of the State Government to prescribe the minimum marks obtained in MBBS for admission to post graduate courses and whether such an order is in conflict with the power of the Central Legis lature to make laws in respect of matters specified in Entry 66 of List I of the Seventh Schedule
Dismissing the appeals and the petitions the Court HELD I1
The State Government order dated 151282 has not in any way contravened or encroached upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List 1 of Seventh Schedule to the Constitution There is no conflict between the Regulations and also the order in question
The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the Regulations made under the nor does it infringe the central power provided in the Entry_ 66 of List I of the Seventh Schedule to the Constitution
The order merely provides an additional eligibility qualification 672C F 12 The State Government can in exercise of its execu tive power under Article 162 of the Constitution make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the State Legislature The impugned order made by the State Government pursuant to its executive powers laying dawn the eligibility qualification for the candidates to he considered on merits for admission to the post graduate courses in Medical Col leges in the State is valid and it cannot he assailed on the ground that it is beyond the 663 competence of the State Government to make such order pro vided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in Entry 66 of List I The impugned order dated 151282 lays down the criteria or eligibility qualification ie obtain ing 55 of marks by candidates seeking admission in the post graduate degree course and obtaining of 52 marks by candi dates seeking admission to post graduate diploma course for being considered for selection
The order in question merely specifies a further eligibility qualification for being considered for selection for admission to the post graduate courses degree and diploma in the medical colleges in the State in accordance with the criteria laid down by the Indian Medical Council
This does not in any way encroach upon the Regulations that have been framed under the provi sions of section 33 of the 
On the other hand in order to promote and further the determi nation of standards in institutions for higher education the State Government who runs these colleges provide an additional eligibility qualification under its own right
669E G 670D H 13 In the instant case the number of seats for admis sion to various post graduate courses both degree and diplo ma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these courses of study
In such circumstances the impugned order laying down the qualification for a candidate to he eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by Regula tions made under the  cannot be said to he in conflict with the said Regulations or in any way repugnant to the said Regulations
It does not in any way encroach upon the standards prescribed by the said Regulations
On the other hand by laying down a further qualification of eligibility it promotes and furthers the standard in an institution
671D E State of AP  Ors
vs Lavu Narendranath  Ors
   R Chitralekha and Anr
vs Stateof Mysore Madras  Ors   referred to