Case: State of Madhya Pradesh and Another Vs. Kumari Nivedita Jain and Others

1. Kumari Nivedita Jain, one of the Respondents in the present appeals, was a candidate for admission to a Medical College in the State of Madhya Pradesh. In the State of Madhya Pradesh there are six Medical Colleges affiliated to different Universities in the State. The total number of seats in all these Colleges is 720. 2. By an order dated 2nd April, 1980 the State Government made rules for admission to Medical Colleges, the College of Dentistry Indore, Government Ayurvedic Colleges of the State, the said Rules are called "Rules for Admission into the Medical, Dentistry, Ayurvedic Colleges in Madhya Pradesh" (hereinafter referred to as the Rules). These Rules were made in exercise of the executive power of the State, these Rules are not statutory. B y, under Rule 7 of the Rules, the State Government has reserved 15% seats for each of the categories of the Scheduled Castes, Scheduled Tribes candidates. 3. That means, out of 720 seats, 108 seats are reservedCastes candidates;, the same number, that is, 108 seats are also reservedbelonging to the category of Scheduled Tribes. By, under the same Rules, 15% seats are reserved for women candidates, seats not exceeding 3% are reserve dof military personnel. Under Rule 8, some further reservations have been made, under this Rule, seats not exceeding 3% are reservedof the Government of India, 3 seats are reservednominated by the Government of Jammu, Kashmir Rule 1 (iii) provides that a Pre-Medical Examination shall be held every year for selection of candidates for admission to the Medical Colleges, all admissions shall be made only fro m the merit list prepared on the basis of the result of this examination except in case of seats placed at the disposal of the Government of India, other States. 4. Rule 15 mentions the subjects of the Pre-Medical Examination, C rule 20 lays down that selection of candidates from amongst those who have qualified in the examination shall be made strictly on merit as disclosed by total number of marks obtained by candidates in the Pre-Medical Examination. Rule 20 further provides that minimum qualifying marks for admission to Medical Colleges shall be 50% in the aggregate, 33% in each subject separately: but for Scheduled Castes, Scheduled Tribes candidates, the minimum qualifying marks shall be 40% in the aggregate, 30% in each subject. Rule 20 in its note (ii) empowers the Government to grant in case of candidates belonging to the categories of Scheduled Castes, Scheduled Tribes special relaxation in the minimum qualifying marks to the extent considered necessary in the event of the required number of candidates in these two categories not being available number of 720 seats in the Medical Colleges of the State, there were 9400 candidates in all.Of the 9400 candidates, the re were 623 candidates belonging to the category of Scheduled Castes for whom 108 seats were reserved;, for the 108 seats reserved for candidates of the Scheduled Tribes Category, there were 145 candidates belonging to that category. On the result of the Pre-Medical Examination only 18 seats in the category of the Scheduled Castes, 2 seats in the category of Scheduled Tribes could be filled up, because the other candidates of these categories did not secure qualifying marks prescribed by rule 20. As 90 seats had remained vacant in the category reserved for Scheduled Castes after selection of the 18 candidates, 106 seats remained unfilled in the category of seats reserved for Scheduled Tribes after selection of the two candidates on the result of the examination, the Board in exercise of the power under Note (i) to Rule 20 made a relaxation of 5% in terms thereof, thereafter 7 more candidates in the category gory of Scheduled Castes, one more in the category of Scheduled Tribes got admitted. 5. Thus oat of 108 seats reserved for each category of the Scheduled Castes, Scheduled Tribes, only 25 seats could be filled in the category of Scheduled Castes, three in the category of Scheduled Tribes. As only a very few candidates of these two categories could get admitted into Medical Colleges, a large number of seats reserved for them could not be filled up by the candidates of these two categories on the basis of the result of the examination even after relaxation had been made in terms of the provisions contained in Note (i) to Rule 20, the State Government passed an order on the 9th September, 1980 completely relaxing the conditions relating to the minimum qualify ing marks for these two categories. the order dated 9th September, 1980, the validity of which has been questioned in the Writ Petitions filed by Nivedita Jain in the High Court, is to the following effect:-, The principal grounds on which t he validity of the order has been challenged by Nivedita Jain, the respondent herein, the petitioner in the writ petition before the High Court, are-(1) that the order of the Government contravenes Regulation II of the Medical Council of India, would hit S. 19 of the Indian Medical Council Act, 1956, exposing the medical colleges to the risk of being derecognised;, (2) that the order of the Government will have the effect of allowing less qualified, less de serving candidates to fill up the seats, would, therefore, destroy equality, violate Arts. 14, 15 of the Constitution.The High Court accepted the contention of the writ petitioner that the order in question violated Regulations of the Council holding that:"the executive power of the State under Art. 162 cannot be so exercised as to over-ride the statutory provisions, more so when the said provision is in a field occupied by the Union List. The executive power can be used to supplement a law but not to supplant it" The High Court further held that:"the total relaxation of minimum marksbelonging to these categories cannot be supported under Art. ] S(4) being violative of the Regulations which have the force of law." Dealing with the contentions of violation of ordinance 54 of the University of Jabalpur, the High Court observed:, Mr. Phadke, learned counsel appearing on behalf of the appellants, has submitted that the High Court struck down the order in question mainly on the ground that the order is violative of the Regulation II of the Council. 6. He has argued that the validity of the reservationsof the Scheduled Castes, Scheduled Tribes has not been questioned. It is his argument that the seats are reserved for those communities in the interest of weaker sections of the society, the State under Art. 15(4) of the Constitution is competent to do everything possibleof the Scheduled Castes, Scheduled Tribes, other backward communities, the State is entitled to make necessary reservations of seats in the matter of their admission to medical colleges. 7. He submits that it must be open to the State to lay down such conditions as will make such reservations effective, will enable the candidates belonging to the categories of Schedu led Castes, Scheduled Tribes to get the benefits of such reservations, in discharge of the duties, obligation of the State, to the members of those communities, other backward communities. It is his submission that in the instan t case when the State found that the qualifying conditions laid downof the candidates belonging to those communities had in reality resulted in denial of the opportunities sought to be given to them, the Government consi dered it expedient to relax the conditions to enable the candidates of those communities to get the admission to medical colleges for prosecuting their studies to become qualified medical practitioners. Mr. Phadke has contended that the provisio ns contained in Regulation II for violation of which the order in question has been struck down, are directory in nature, they are not mandatory in character, and, as such, they do not have any binding effect;, it is open to the State to make R ules which may not be in accord with the provisions contained in the said regulation for admission to the medical colleges.Mr. Phadke has taken us to the various provisions of the Indian Medical Council Act (hereinafter referred to as the Act), also to the Regulations framed by the Council. Mr. Phadke submits that the scheme of the Act clearly suggests that the Council is essentially concerned with the standard of medical education in the country, that stage only arrives aft er the students have been admitted into Medical Colleges. 8. Mr. Phadke has drawn our attention particularly to Sections 19, 19A of the Act, he has commented that under S. 33 of the Act, the Council with the previous sanction of the Cent ral Government can frame Regulations for carrying out the purpose of the Act. He has submitted that the selection of candidates for admission to Medical Colleges cannot be said to constitute any purpose for which the Act has been enacted, as sel ection of students has no bearing on the standard of medical education, the Council is not competent to frame Regulations for admission to Medical Colleges. 9. Mr. Phadke in this connection has referred to the decision of this Court in th e case of Arti Sapru v. State of Jammu, Kashmir, Ors.(1), has relied on the following observations of the Court at p. 44:, Objection to the objective test, the viva voce examination is based on the ground that they fall outside the scheme envisaged by the Regulations made by the Indian Medical Council for admission to the M.B.B.S, Course.10. The respondents, however, question the validity H of the Regulations. We are then referred by the petitioner to clauses (i), (I) of S. 33, Indian Medical Council Act, 1956, in support of the contention that the power of the Council to make regulations extends to making regulations prescribing the examinations, tests for admission. It seems to us prima facie that those provisions do not authorise the Council to do so. But we refrain from expressing any final opinion in the matter as the Council is not a party before us.Mr. Kacker, Learned Counsel appearing on behalf of the Respondent Nivedita Jain, the petitioner in the w rit petition, his argued that Regulation II of the Medical Council is mandatory with statutory force. He has submitted that the Indian Medical Council bas been established by the Parliament, inter alia, of Medical Register for India, the matters relating therewith. He further submits that under s. 33 of the Act the Council with the previous sanction of the Central Government has been authorised to make regulations generally to carry out the purposes of the Act, without prejudice to the generality of this power, the regulation made by the council may provide for matters specifically mentioned in the said section including any matter for which under the Act provision may be made by regulations, as provided in sub-section (u) of Section 33. 11. It is the argument of Mr. Kacker that Regulation II of the Council which relates to selection of candidates has been made for carrying out the purposes of the Act, selection of the right type of students for maintaining proper standard of medical education comes clearly within the purview, jurisdiction of the Council. Mr. Kacker has placed us various sections of the Act in support of his submission that regulating selection of students for admission to medical colleges justly comes within the jurisdiction, function of the Council. 12. In this connection, Mr. Kacker has also referred to the decision of this Court in the case of State of Kerala v. Kumari T.P. Roshana, Anr. (1), he has relied on the following observations at p. 984:-, In concluding Mr. Kacker has appealed to this Court that irrespective of the result of this appeal, the respondent Nivedita Jain who has already been admitted into a College on the basis of interim order passed by this Court in this appeal for prosecuting her studies in the Medical College, should be allowed to continue her studies, the fate of t his appeal should not interfere with her studies, with her career. As we have earlier noticed, the order in question has been struck down by the High Court essentially on the ground that the order which is an executive order violates Regulation II of the Council which has the force of a Statute. It is not in dispute, it cannot be disputed that the order m question is in conflict with the provisions contained in Regulation II of the Council. The main question that falls for determination is whether the order in question which contravenes Regulation II is liable to be struck down on the ground that the State Government by an executive order is purporting to override Regulation II of the Council. For a proper determination of the question it is necessary to understand the true nature of the said Regulation II, to consider whether the said Regulation is of mandatory character with statutory force. 13. The contention of the appellants, as we have earlier noticed, is that Regulation II is only in the nature of a recommendation, is directory, has no statutory force;, the contention of the Respondent Nivedita Jain, on the other hand, has been that the said Regulation is mandatory in char acter with statutory force. For a proper appreciation of these rival contentions, it becomes necessary to analyze, understand the scheme of the Act, the Regulations framed thereunder. The Act was enacted "to provide for reconstitution of the Medical Council of India, the maintenance of Medical Register for India, for matters connected therewith". S. 2 deals with definitions, defines "Regulation" in sub- sec. (i) to mean "a Regulation under s. 33". Ss. 3 to 10 of the Act are not of any material consequence, these sections deal with composition of the Council, its functions. S. 11, 12, 13, 14 which deal with the question of recognition of medical qualifications by the Council are also not very relevant for our present purpose. S. 15 which deals with question of a person possessing qualifications for enrollment on any State Medical Register, is also not very material.S. 16 provides that every University or Medical Institution in India whic h grants a recognised medical qualification shall furnish such information as the Council may from time to time require, as to the courses of study, examination to be undergone in order to obtain such qualification, as to the ages at which courses of study, examination are required to be undergone, such qualification is conferred, generally as to the requisites for obtaining such qualifications granted by the University or Medical Institution. S. 17 confers a r ight of inspection of Medical Institution, College, Hospital or other institutions where medical education is given, also to attend any examination held by any University or Medical Institutionof recommending to the C entral Government recognition of medical qualifications granted by that University or medical institution. 14. S. 18 confers a further right of appointing visitors for inspection of any medical institution, College, Hospital or other institutions where medical education is given, for attending any examination held by any University or Medical Institutionof granting recognised medical qualifications. S. 19 empowers the committee to make a representation to the Central Government for withdrawal of the recognition, if it appears to the Council on a report by the Committee or the Visitor that the Courses of study, examination to be undergone in, or the proficiency required from candidates at any examination held by any University or medical institution do not conform to the standards prescribed by the Council or that the staff, equipment, accommodation, training, other facilities for instructions, training provided in such University or Medical Institution or in any College or other institution affiliated to that University do not conform to the standards prescribed by the Council.The said Section 19 further provides that in the event of any representation being made to the Cen tral Government by the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated, the State Government shall forward it along with such remarks as it may m ake to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government;, on receipt of the explanation, if any within the s tipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government, the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manne r laid down in sub-sec. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows:, Provided that a candidate who has appeared in a qualifying examination the result of which has not been a declared, may be provisionally allowed to take up the competitive examination, i n case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination. 15. It cannot be disputed that the State must do everything possibleof the Scheduled Castes, Scheduled Tribes, other backward communities, the State is entitled to make reservations for them in the matter of admission to medical, other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective, would benefit the candidates belonging to these categories for whose benefit, welfare the reservations have been made. In any particular situation, taking into consideration the realities, circumstances prevailing in the State it will be open to the State to vary, modify the conditions regarding selection f or admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made, if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empower the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary.In the State of Kerala, Anr. v. N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules whic h required a lower division clerk to pass a departmental test within a period of two years in the interest of the employees belonging to Scheduled Castes, Scheduled Tribes was not unconstitutional or illegal. 16. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable, the said relaxation constitutes no violation of Art. 15 (l), (2) of the Constitution. The said relaxation also does not offend Art. 14 of the Constitution. 17. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into medical colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes categories who were otherwise qualified, eligible to seek admission into medical colleges only in relation to seats reserved for them. The respondent Nivedita Jain, other deserving candidates may feel that because of the reservations they are being deprived of the opportunity of getting their admission into medical colleges. 18. It is however, to be noted that the validity of the reservations of seats for candidates belonging to Scheduled Castes, Scheduled Tribes categories has not been challenged in the writ petition, very properly as in view of Art. IS (4) of the Constitution. In the case of Jagdish Saran, Ors. v. Union of India, Ors. (l) relied on by Mr. Phadke, this Court has held that the Indian Constitution is wedded to equal protection, non-discrimination, Arts.14, 15, 16 are inviolable, Art. 2 9 (2) strikes a similar note though it does not refer to A regional restrictions or reservations; Art. IS further saves States power to make special provisions for women, children or for advancement of socially, educationally backward classes, reservations under Art. IS (4) exist, are applied.This Court further held at p. 855 as under:-, The only other ground that was urged in support of the case of the writ petitioners that the order in question is illegal, invalid, is that the order violat es ordiance 54 of the University of Jabalpur. No such ground has been taken in the writ petition. 19. Though the High Court has considered this argument, the High Court does not appear to have come to any definite finding on this question. This question, in the instant case, cannot be said to be a question of pure law. In the affidavit which has been filed on behalf of the University, it has been stated that the ordinance 54 has not been adhered to. 20. In the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not entitled to urge this point, rely on any alleged contravention of ordinance 54 of Jabalpur University. 21. The Judgment and order passed by the High Court are hereby set aside and the writ petition is dismissed. There will, how ever, be no order as to costs. 22. Though this appeal succeeds, yet in our opinion, justice requires that the respondent Nivedita Jain who has already been admitted to the Medical College on the basis of interim order passed by the Court and ha s been prosecuting her studies should be allowed to continue her studies and to continue to be student of the Medical College where she is already studying. She is otherwise a qualified candidate and eligible for admission into the medical course which she is now undergoing and the cause of justice does not require that her studies should be interrupted and her career should not be put in jeopardy.

Decision:
1[ds]It seems to us prima facie that those provisions do not authorise the Council to do so. But we refrain from expressing any final opinion in the matter as the Council is not a party before usAs we have earlier noticed, the order in question has been struck down by the High Court essentially on the ground that the order which is an executive order violates Regulation II of the Council which has the force of a Statute. It is not in dispute, it cannot be disputed that the order m question is in conflict with the provisions contained in Regulation II of the CouncilFor a proper appreciation of these rival contentions, it becomes necessary to analyze, understand the scheme of the Act, the Regulations framed thereunder. The Act was enacted "to provide for reconstitution of the Medical Council of India, the maintenance of Medical Register for India, for matters connected therewith". S. 2 deals with definitions, defines "Regulation" in subsec. (i) to mean "a Regulation under s. 33". Ss. 3 to 10 of the Act are not of any material consequence, these sections deal with composition of the Council, its functions. S. 11, 12, 13, 14 which deal with the question of recognition of medical qualifications by the Council are also not very relevant for our present purpose. S. 15 which deals with question of a person possessing qualifications for enrollment on any State Medical Register, is also not very material.S. 16 provides that every University or Medical Institution in India whic h grants a recognised medical qualification shall furnish such information as the Council may from time to time require, as to the courses of study, examination to be undergone in order to obtain such qualification, as to the ages at which courses of study, examination are required to be undergone, such qualification is conferred, generally as to the requisites for obtaining such qualifications granted by the University or Medical Institution. S. 17 confers a r ight of inspection of Medical Institution, College, Hospital or other institutions where medical education is given, also to attend any examination held by any University or Medical Institutionof recommending to the C entral Government recognition of medical qualifications granted by that University or medical institution14. S. 18 confers a further right of appointing visitors for inspection of any medical institution, College, Hospital or other institutions where medical education is given, for attending any examination held by any University or Medical Institutionof granting recognised medical qualifications. S. 19 empowers the committee to make a representation to the Central Government for withdrawal of the recognition, if it appears to the Council on a report by the Committee or the Visitor that the Courses of study, examination to be undergone in, or the proficiency required from candidates at any examination held by any University or medical institution do not conform to the standards prescribed by the Council or that the staff, equipment, accommodation, training, other facilities for instructions, training provided in such University or Medical Institution or in any College or other institution affiliated to that University do not conform to the standards prescribed by the Council.The said Section 19 further provides that in the event of any representation being made to the Cen tral Government by the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated, the State Government shall forward it along with such remarks as it may m ake to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government;, on receipt of the explanation, if any within the s tipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government, the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manne r laid down in. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows:, Provided that a candidate who has appeared in a qualifying examination the result of which has not been a declared, may be provisionally allowed to take up the competitive examination, i n case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination15. It cannot be disputed that the State must do everything possibleof the Scheduled Castes, Scheduled Tribes, other backward communities, the State is entitled to make reservations for them in the matter of admission to medical, other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective, would benefit the candidates belonging to these categories for whose benefit, welfare the reservations have been made. In any particular situation, taking into consideration the realities, circumstances prevailing in the State it will be open to the State to vary, modify the conditions regarding selection f or admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made, if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empower the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary.In the State of Kerala, Anr. v. N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules whic h required a lower division clerk to pass a departmental test within a period of two years in the interest of the employees belonging to Scheduled Castes, Scheduled Tribes was not unconstitutional or illegal16. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable, the said relaxation constitutes no violation of Art. 15 (l), (2) of the Constitution. The said relaxation also does not offend Art. 14 of the Constitution17. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into medical colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes categories who were otherwise qualified, eligible to seek admission into medical colleges only in relation to seats reserved for them. The respondent Nivedita Jain, other deserving candidates may feel that because of the reservations they are being deprived of the opportunity of getting their admission into medical colleges18. It is however, to be noted that the validity of the reservations of seats for candidates belonging to Scheduled Castes, Scheduled Tribes categories has not been challenged in the writ petition, very properly as in view of Art. IS (4) of the Constitution. In the case of Jagdish Saran, Ors. v. Union of India, Ors. (l) relied on by Mr. Phadke, this Court has held that the Indian Constitution is wedded to equal protection,, Arts.14, 15, 16 are inviolable, Art. 2 9 (2) strikes a similar note though it does not refer to A regional restrictions or reservations; Art. IS further saves States power to make special provisions for women, children or for advancement of socially, educationally backward classes, reservations under Art. IS (4) exist, are applied.This Court further held at p. 855 as, The only other ground that was urged in support of the case of the writ petitioners that the order in question is illegal, invalid, is that the order violat es ordiance 54 of the University of Jabalpur. No such ground has been taken in the writ petition19. Though the High Court has considered this argument, the High Court does not appear to have come to any definite finding on this question. This question, in the instant case, cannot be said to be a question of pure law. In the affidavit which has been filed on behalf of the University, it has been stated that the ordinance 54 has not been adhered to20. In the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not entitled to urge this point, rely on any alleged contravention of ordinance 54 of Jabalpur University.