Case: TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS.  Vs. UNION OF INDIA & ORS.


Decision:
1[ds]Thus, as held by the Constitution Bench of this Court in the case of Modern Dental College (supra), in which this Court considered catena of earlier decisions of this Court dealing with the scope and ambit of Entry 66 List I, Entry 66 of List I is a specific entry having a very specific and limited scope; it deals with Coordination and Determination of Standards in institutions of higher education or research as well as scientific and technical institutions. It is further observed that the words Coordination and Determination of Standards would mean laying down the said standards and therefore when it comes to prescribe the standards for such institutions of higher learning, exclusive domain is given to the Union. It is specifically further observed that that would not include conducting of examination etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc. Thus, in exercise of powers under Entry 66 List I, the Union cannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III. In exercise of powers under Entry 25 List III, the States have power to make provision for mode of admissions, looking to the requirements and/or need in the concerned10.2 We note that as per catena of decisions of this Court, institutional preference in the postgraduate medical courses is held to be permissible by the concerned States, (see D.N. Chanchala (supra); Pradeep Jain v. Union of India (1984) 3 SCC 654 ; Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad (1986) 3 SCC 727 ; Gujarat University v. Rajiv Gopinath Bhatt (1996) 4 SCC 60  ; AIIMS Students Union (supra); Saurabh Chaudri v. Union of India (2003) 11 SCC 146 ; and Yatinkumar Jasubhai Patel (supra)).10.3 In a recent decision of this Court in the case of Yatinkumar Jasubhai Patel (supra), the issue of institutional preference within the State quota was considered in which the Gujarat University framed the rules for the purpose of governing admission to postgraduate courses. One of the rules provided that 50% of the seats shall be filled in as per the All India 50% quota and the remaining seats will be available for the candidates passing from the Gujarat University. That was provided to the candidates graduating from the Gujarat University. The aforesaid rule of institutional preference was challenged before the High Court. The vires of the afore-stated rules providing institutional preference giving preference to the candidates graduated from the Gujarat University was challenged on the ground that in view of introduction of the NEET and the admissions are given solely on the basis of the merit and the marks obtained in NEET, the rules providing institutional preference shall be violative of the Indian Medical Council Act, 1956 and the MCI Regulations, 2000 framed under the Indian Medical Council Act, 1956. The High Court dismissed the writ petition upholding the institutional preference. The same was the subject matter before this Court. It was submitted on behalf of the writ petitioners that even the MCI Regulations for postgraduate admissions, MCI Regulations, 2000, do not permit the institutional preference and that the MCI Regulations, 2000 held by this Court to be a complete code and therefore no reservation is to be provided unless the same is permitted under the MCI Regulations, 2000. The decision of this Court in the case of Dinesh Singh Chauhan (supra) was also placed into service. However, considering the plethora of decisions of this Court, referred to hereinabove, this Court has again held that institutional preference is permissible and even the introduction of NEET would not affect the institutional preference. This Court has noted that institutional preference up to 50% seats is11.2 Regulations, 2000 are framed by the MCI in exercise of its powers conferred under Section 33 of the Indian Medical Council Act, 1956. The Indian Medical Council Act, 1956 has been enacted/passed by the Union in exercise of powers conferred under Entry 66, List I. Therefore, the main source of power of the MCI would be from Entry 66 List I. As per Section 33 of the MCI Act, the Council may with the previous sanction of the Central Government make regulations generally to carry out the purpose of the said Act. Therefore, in exercise of powers under Section 33 of the MCI Act, Regulations 2000 are made by the MCI. As observed hereinabove, the MCI draws the power from Entry 66 List I. As observed hereinabove, Entry 66 List I is a specific entry having a very specific and limited scope which deals with Coordination and Determination of Standards of higher education for research as well as scientific and technical institutions. In fact, such Coordination and Determination of Standards, insofar as medical education is concerned, is achieved by parliamentary legislation in the form of Indian Medical Council Act, 1956 and by creating the statutory body like MCI. The functions that are assigned to MCI include within its sweep Determination of Standards in a medical institution as well as Coordination of Standards and that of educational institutions. As discussed hereinabove, when it comes to regulating education as such, which includes even medical education as well as universities, that is prescribed in List III, Entry11.3 If one considers the Statement of Objects and Reasons of the Indian Medical Council Act, 1956, it cannot be said that the Medical Council of India would have any authority or jurisdiction to frame any regulations with respect to reservation and/or making special provision like providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses. Regulations, 2000 have been made in exercise of powers under Section 33 of the MCI Act.On a fair reading of entire Section 33 of the MCI Act, it does not confer any authority and/or power to the MCI to frame the regulations with respect to reservation in the medical courses, more particularly, to provide for a separate source of entry for in- service candidates seeking admission to postgraduate degree courses, as sought to be contended on behalf of the MCI and counsel opposing for providing for a separate source of entry for in-serviceThe title of Regulation 9 is Procedure for selection of candidate for postgraduate courses. Regulation 9(I) provides that there shall be a single eligibility-cum-entrance examination, namely, NEET. Regulation 9(II) further provides that 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability. Regulation 9(III) provides for the eligibility criteria. It provides that 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 marks at 50 th percentile in NEET for postgraduate courses. However, in respect of candidates belonging to SC/ST/OBC, the minimum marks shall be at 40 th percentile. Thus, it can be seen that Regulation 9(III) can be said to be providing the standards which shall be within the domain and legislative competence of the Union and the MCI, in exercise of powers under Entry 66, List I. The first part of Regulation 9(IV) speaks for the reservation of seats in medical colleges/institutions. It provides that the reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. It further provides for preparing all-India merit list as well as State- wise merit list of the eligible candidates on the basis of the marks obtained in NEET and candidates shall be admitted to postgraduate courses from the said merit lists only. To that stage, it can be said that the same is within the legislative competence of the Union/MCI, in exercise of powers under Entry 66 List I.However, proviso to Regulation 9(IV) further provides 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 NEET. It further provides that the remote and difficult areas shall be as defined by the State Government/competent authority from time to time. Thus, it can be seen that even the proviso can be said to be with respect to preparing the merit list12.1 As held by this Court in earlier decisions, Regulation 9(IV) is limited only to reservation in favour of SC/ST/OBC and as per the prevailing laws in the States. If that be so, then the proviso which as such is not dealing with the reservation cannot be said to be in the form of an exception to first part of Regulation 9(IV) and it can be seen that it is an independent provision dealing with the in-service candidates and that too for the purpose of preparing the merit list. Thus, the proviso becomes the substantive provision and is more concerned with the marks to be allocated which is the concern of Regulation 9(III). It is also required to be noted that even this proviso confers a discretion on the State to provide for weightage in marks for the services rendered in remote or difficult areas. The proviso only enables the States by conferring the discretion for weightage. The proviso has nothing to do with the reservation in the postgraduate degree courses and therefore it shall not negate the States power to make reservation and/or make special provision to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses. Thus, Regulation 9(IV) as such cannot be said to be taking away the power of the States under Entry 25, List III, to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses. Any contrary view would affect the right of the States to make reservation and/or to make special provision for admission in exercise of powers under Entry 25 List III. If it is construed that Regulation 9 of the MCI Regulations, 2000, more particularly Regulation 9(IV) provides for reservation and/or deals with the reservation for in-service candidates, in that case, it will be beyond the legislative competence of the Union as well as it will be ultra vires to the Indian Medical Council Act, 1956. As observed hereinabove, Section 33 of the Indian Medical Council Act, 1956 does not confer any power on the MCI to make regulations with respect to reservation. At the cost of repetition, it is observed that institutional preference, despite MCI Regulations, 2000, has been upheld and held to be permissible by the concerned13. The sum and substance of the above discussion would be that,1) that Entry 66 List I is a specific entry having a very limited scope;2) it deals with coordination and determination of standards in higher education;3) the words coordination and determination of standards would mean laying down the said standards;4) the Medical Council of India which has been constituted under the provisions of the Indian Medical Council Act, 1956 is the creature of the statute in exercise of powers under Entry 66 List I and has no power to make any provision for reservation, more particularly, for in-service candidates by the concerned States, in exercise of powers under Entry 25 List III;5) that Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III; and6) if it is held that Regulation 9, more particularly, Regulation 9(IV) deals with reservation for in-service candidates, in that case, it will be ultra vires of the Indian Medical Council Act, 1956 and it will be beyond the legislative competence under Entry 66 List I.Thus, making special provision for in-service candidates and the provisions for providing reservation for in-service candidates in postgraduate medical courses have been upheld and approved by this Court in the aforesaid14.4 Even in the case of Dinesh Singh Chauhan (supra) also, while upholding Regulation 9(IV) which provides weightage to the extent of 10% of the marks obtained by the candidates in the competition test and to the extent of maximum 30% marks, this Court has in paragraph 44 has observed as under:44. Dealing with this contention, we find that the setting in which the proviso to clause (IV) has been inserted is of some relevance. The State Governments across the country are not in a position to provide healthcare facilities in remote and difficult areas in the State for want of doctors. [Rural Health Statistics for 2014-2015 published by the Government of India, Ministry of Health & Family Welfare depicting the shortage of doctors in rural areas particularly State of Uttar Pradesh, which reads thus:In fact there is a proposal to make one-year service for MBBS students to apply for admission to postgraduate courses, in remote and difficult areas as compulsory. That is kept on hold, as was stated before the Rajya Sabha. The provision in the form of granting weightage of marks, therefore, was to give incentive to the in-service candidates and to attract more graduates to join as medical officers in the State healthcare sector. The provision was first inserted in 2012. 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 healthcare facilities in rural areas, deserve incentive marks to be reckoned for determining merit. Notably, the State Government is posited with the discretion to notify areas in the given State to be remote, tribal or difficult areas. That declaration is made on the basis of decision taken at the highest level; and is applicable for all the beneficial schemes of the State for such areas and not limited to the matter of admissions to postgraduate medical courses. Not even one instance has been brought to our notice to show that some areas which are not remote or difficult areas has been so notified. Suffice it to observe that the mere hypothesis that the State Government may take an improper decision whilst notifying the area as remote and difficult, cannot be the basis to hold that Regulation 9 and in particular proviso to clause (IV) is unreasonable. Considering the above, the inescapable conclusion is that the procedure evolved in Regulation 9 in general and the proviso to clause (IV) in particular is just, proper and reasonable and also fulfils the test of Article 14 of the Constitution, being in larger public15. The object and purpose of providing separate source of admission for in-service candidates is noted by this Court in the cases of K. Duraisamy (supra); Gopal D. Tirthani (supra); and Sudhir N (supra). Even the same is noted by this Court in the case of Dinesh Singh Chauhan (supra) while upholding the reservation for in-service doctors in postgraduate diploma courses. It has been consistently held by this Court that there is a legitimate and rational basis in providing a separate channel/source of entry for in-service candidates in order to encourage them to offer their services and expertise to the State. There is a sufficient nexus with the larger goal of equalization of educational opportunities and to sufficiently prefer the doctors serving in the various hospitals run and maintained out of public funds, in the absence of which there would be serious dearth of qualified Post-graduate doctors to meet the requirements of the common public. It is stated that the Government is facing public health crisis. The effective and competent medical treatment is not available in the rural and difficult areas. In-service doctors who pursue higher studies would naturally serve in rural and difficult areas if such incentive in the form of reservation is15.1 The action of the State to provide for the in-service quota is in the discharge of its positive constitutional obligations to promote and provide better health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialized health care facility. Such action is in discharge of its constitutional obligations as provided in Article 47 of the Constitution of India, which is the corresponding fundamental right of the citizens protected under Article 21 of the Constitution of15.2 It is settled law that Article 21 of the Constitution of India confers on the citizens of India a fundamental right to life and personal liberty. Right to health is integral part of the Right to life and is a facet of Article 21.In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. It is observed by this Court in the case of Vincent Panikurlangara v. Union of India AIR 1987 SC 990  that attending to public health is of high priority, perhaps the one at the top. It is the primary duty of a welfare State to ensure that medical facilities are adequate and available to provide treatment.15.5 In the case of CESC Ltd. (supra), this Court has observed and held that right to health is a fundamental right. It went further and observed that health is not merely absence of sickness. The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers best, physically as well as mentally, in15.6 In the case of Municipal Council, Ratlam v. Vardhichand 1980 Cri LJ 1075 = 1981 SCR (1) 97 = AIR 1980 SC 1622  , this Court through Justice Krishna Iyer observed: The State will realize that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary15.7 Even otherwise, the power of the State under Entry 6, List II of Schedule VII to legislate in the subject matter of public health and hospital is exclusive.15.8 Article 47 of the Constitution reiterates the constitutional obligation imposed on the State to improve public health.15.9 As observed hereinabove, Article 21 of the Constitution of India imposes an obligation on the State to safeguard the life of every person. Preservation of human life is thus of paramount importance. Thus, when the State provides a separate source of admission for in-service doctors as a distinct class and within the State quota and the object is laudable, the State is within its power to provide such separate source of admission in exercise of the powers under Entry 25 List III, read with Entry 6, List II. It cannot be said that there is no nexus with the laudable object of meeting the requirement of qualified postgraduate doctors for the public health services, more particularly, in the rural, tribal and difficult areas. As such, there is no conflict between the power of the Union and the State. As observed hereinabove, the occupied filed of Union legislation in exercise of power under Entry 66, List I is related to minimum standards of medical education and the State is providing the in-service quota without impinging the prescribed minimum standards. It is a settled proposition of law that in case of two entries might be overlapping, in that case, the interpretation must be in furtherance of achieving the ultimate object, in the present case to provide better health care in the rural, tribal and difficult areas. Any interpretation which would negate and/or become nugatory the other entry, is to be avoided. There must be a harmonious reading between the two entries. In the present case, as such and as observed hereinabove, there shall not be any conflict between the power of the Union and the State, while exercising the powers under Entry 66 List I by the Union and under Entry 25 List III by the States. Therefore, as such, the State is within its power and is empowered to make reservation in the seats of the postgraduate medical courses, more particularly, for in-service15.10 In the federal structure, the State, as well as the Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially and backward classes. Therefore, the State Government have the right to provide reservation and in the field of employment and education, looking to the specific/special need of public requirement in the particular area. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal. Therefore, by allotting a specific percentage within its State quota and to provide preferential treatment to a particular class, cannot be said to be beyond the legislative competence of the State. On the contrary, as observed hereinabove, the State is within its power and authority to provide such a preferential treatment to provide a better public health in the rural, tribal and hilly16. It is to be noticed that earlier also the concerned States did provide reservation for in-service government medical officers/doctors and the concerned States, as such, achieved the goal of meeting the public health services in the rural, tribal and difficult areas. However, because of the misinterpretation of the MCI Regulations, 2000, the problems have17. Even otherwise, Regulation 9 of the MCI Regulations, 2000 to the extent not providing for any reservation for in-service candidates working in the rural, tribal and difficult areas can be declared ultra vires on the ground of being arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India. It is required to be noted that Regulation 9, more particularly Regulation 9(VII) makes provision for reservation for in-service candidates for admission to postgraduate diploma courses only. However, there is no reason coming out of either from the Regulations or in any form of material produced by the MCI showing as to on what basis MCI takes a stand that similar in-service reservation is not permissible for admission to postgraduate degree courses. Therefore, if the very concept of in-service reservation is permissible and incorporated in the MCI Regulations, 2000, opposition to similar reservation for postgraduate degree courses is unreasonable and18. Now so far as the observations made by this Court in the cases of Sudhir N (supra) and Dinesh Singh Chauhan (supra) that the MCI Regulations, 2000 is a complete code is concerned, it is clear that the observations made by this Court in the case of Sudhir N (supra) that Regulation 9 of the MCI Regulations, 2000 is a complete code is required to be considered with reference to the context and controversy before the18.1 In the case of Sudhir N (supra), the State law which was under consideration by the Court provided that the seniority list of selected candidates to be prepared directly based on seniority of in-service doctors, irrespective of marks obtained by such in- service candidates in common PG entrance examination. In that context, this Court held that Regulation 9 of MCI Regulations, 2000 is the only effective and permissible basis for granting admission to postgraduate medical courses and therefore it was observed that Regulation 9 of MCI Regulations, 2000 is a complete code. Therefore, the observations in the case of Sudhir N (supra) that Regulation 9 is a complete code in itself may not be construed with respect to providing reservation and/or making special provision like providing separate source of entry for in- service candidates within the State quota and subject to fulfilling of other criteria fixed and provided by the MCI. Therefore, the observations made by this Court in the case of Dinesh Singh Chauhan (supra) and as held by this Court in the case of Sudhir N (supra) that Regulation 9 is a complete code in itself cannot be accepted and is held to be not a good19. When we consider the subsequent amendment in the year 2018, as made by notification dated 12.07.2018, it is provided that a medical college/medical institution shall be entitled to seek equal number of Post Graduate Degree (MD/MS) seats by surrendering recognised diploma seats in corresponding course. In view of the above, it has so happened that by and large in every State the diploma seats are converted in PG Degree (MD/MS) seats by surrendering recognised diploma seats. The resultant effect is that in-service candidates/doctors shall not be entitled to any seat even in PG Diploma courses which has been provided under Regulation 9(VII) of MCI Regulations 2000, as amended from time to time. Therefore, ultimately, it will affect the public health and the common people in the rural, tribal and hilly areas where there is a dearth of good and highly qualified doctors. Therefore, if the rights of the States to provide such reservation for in-service doctors in postgraduate degree/diploma courses is not recognised, in that case, the ultimate sufferer would be the public health and the common people, particularly the people residing in rural, tribal and hilly areas.20. The sum and substance of the above discussion and conjoint reading of the decisions referred to and discussed hereinabove, our conclusions are as under:1) that Entry 66 List I is a specific entry having a very limited scope;2) it deals with coordination and determination of standards in higher education;3) the words coordination and determination of standards would mean laying down the said standards;4) the Medical Council of India which has been constituted under the provisions of the Indian Medical Council Act, 1956 is the creature of the statute in exercise of powers under Entry 66 List I and has no power to make any provision for reservation, more particularly, for in-service candidates by the concerned States, in exercise of powers under Entry 25 List III;5) that Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III;6) if it is held that Regulation 9, more particularly, Regulation 9(IV) deals with reservation for in-service candidates, in that case, it will be ultra vires of the Indian Medical Council Act, 1956 and it will be beyond the legislative competence under Entry 66 List7) Regulation 9 of MCI Regulations, 2000 to the extent tinkering with reservation provided by the State for in-service candidates is ultra vires on the ground that it is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India;8) that the State has the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III. However, it is observed that policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for such sum the respective States may consider fit and proper; and9) it is specifically observed and clarified that the present decision shall operate prospectively and any admissions given earlier taking a contrary view shall not be affected by this