rq (“/3 IN THE HI$H COURT OF JUDICATURE OF CHEATTI$ARH T BILASPUR E H3 WRIT PETITION N0. F 2093 : 1. Dr.Atin Kundu. ageé about 25 years S/o. hates Shri N.K.Kundu R/o. REG—185 Tatibandh Ramuzéima. 5 . 2. Dr.shai1endra Pratap Singh a ed about 25 years s o. Shri P.S.Takshak R/o. 6-8, Green Valley Raipur Behiad Egjel ( o ) ;Chhatt u isgarh Dr.Ajay Tharani aged about 25 years s/o. Shri I.L.Tharani Rea. D—292/5, Tagore Hagar Raipur (C.G.). Dr.I¢:Lshna Kumar aged about 25 years s/o. Shri J.P.Khote R/o. H.No.7/959 0m Nagar Jarha ’ta Bilasp (CcGo ) . Dr.Raghavendra Singh aged about 27‘ years s/o. Dr.J. S.Kachhawaha R/o. 409, Sunder Nagar Raipur (C.G. ) . 6. Dr.santosh Motawani aged about 26 years s/o. Shri V.D.Motawani 8/0. Santosh Gudakhu Factory Term, Bilaspur (C.G.).‘ Dr.Kshit15 maparde a ed about 24 years S o. Dr.“ .RJchaparde R/o. can .3-B/st.No.48 sector-8. Bhilai Na ar District Burg ((2.6. . It 85 §r.Neety Agrawal aged abaut 23 years D/o. Shri. N.L.Agrawal R o. 3-3, Ravi Na ar, ear ‘ ew Bus Stand, Ra pur CoGo). 4 9. Dr.Bhawana Pipersania ,1? D/o. aged R.K’.Pipersania about 26 years R/o. Matrinagar, Bhilai District Durg (C.G.). A 9 O 7. ; @ @” 10. Dr.Tribhuwan Sam: aged about 27 years ' O. Shr’i C.P. Sihu R/o. Village Karumauha P/o. Basnajhar, Via-Kharsia District Raigarh (CoGo) 11. Dr.JagdishKumar Ghore S/o. Shri K.R.Ghere aged about 26 years R/o. Dhanase Colony V.K.Raikwar' House Narsinghpur M.P.)487001. 12. Dr.PankaJ Sahu 'aged about ig. years s/o. Dr.B.R. u R/o. Poeja Marg (R-3) Vinoba Nagar, Bilaspnr 495004 (CGL 13. Unnitin Kashyap aged about 25 years s/o. R/o. Behind Amdi Mandi: #eepak Nagar, Burg-491001 (C-G.)r./-— 14. Dr.Basant Maheshwari aged s/o.‘ about Shri S.L.Maheshwari 28 years “ R/o. village putidih. p/o. Churaghantha, Pin-495688 (C.G.). Distt. Janjgir-Chamg= % Dr.Sunil Immar Mall aged about 24 years s/o. Shri B.N.Ma11 R/o. Shanti Nagar Ward, Jagdalpur, Bastar (C.G.). 16. Dr.Nivedita Joshi aged about 24 years D/o. s.s.Johh1 R/o. Near ’Rohini Puram Gate Behind Am: Nursery, Raipur (C.Gc ). 17. Dr.Sam1ta Das. aged about 24 years ’D/o. Shri J.c.nas R/o. 23, Virdi Colony. p/c. R.s.U. Raipur (C;G.). 18. Dr.N1misha sakarkar “aged abcut 24 years b/o. Shri D.R.Sa9karkar R/o. Phool Chowk. Raipur (C.G.). Dr .Reepa ‘ Channawar aged about 24 years 'D/o. Shri N.‘?.ehannawar R/o. Vijay Soap Lane Fafadih, Raip'ur (C.G.). . W 20,. DnAngu Hotwani agea abeut 24 years c/o. M.D.Hatwani /o. 60, Hgnuman Society Kali 3m: uhowk, aaipu: (C.G.) . .l 21. Dr.Dipak Purohit aged about .24 years S/o. Shri Virendra Kumar Shanna R/o. Vill. Sanora, Banwasagar District Jhansi (U.P.). 22. Dr.Rohit Kanoi aged about 24 yaars ' IS/o. $hri Purashottam Kanoi /o. Baéhaipara, Jhanda Chow): Raipur (c.G.). 492001. 23. Dr.Prawash mar Chowdhry aged about 24 years s/o. shri Chandra Mohen chowdhary R/c. C.M.Tex, G‘-1_36, Textile Karket, Pandri. Raipur ‘CaGa ) o 24'. Dr.Rajkumar Baranwal aged abaut 26 years s/o. shri Siyaram Baranwal M.G Read, Baloda Bazar, Tahéil Baloda Bazar, Raipur 25. Dnnishnakant sahu aged about 24 years §/°e c/a. shri Shri Bop.‘sahu v.5.Sahu (E.Er.) E/Z. P.w.D.Calony, Bayron Bazar R310“: ‘(c-GO ) e Dr.Vivek Kumar Keshari aged abcut 24 years s/e. hot known g:? %ysN Medical Hastel, koam College, No.36 Ra’ip‘ju (C.G.) . 2'7. Dnsatish Kumar aged about 3O years szo. mmhedu Ram Village B‘irkona. P/o. Dharampuza P/s vipariya. Distt. Kawardha. Dr.Praveen mar Jain aged about 27 years s/o; Er.M.C.Mohant R/o. :nfront of Green House Arya Nagar, Agrasen €howk Durg (C.G. ) . 29. Dr.$wamy Dev Bhupendra aged‘about 26 years s/o. Shri B.L.Dewangan R/o. v111.& p/OJ a District DurglC. .. . M PETITION UNDER ARTICLES 226(227 OF THE CONSTITUTION OF M him; fdk 'I‘sst‘iANcE or APPROPRIATE mns AND ‘DIREc'rlous : 3G. Dr.Eesh Nigam s/o. shri 3.x.mgam aged about 25, ears R/o. Iii-43, Vas nt mar S.E..C.L., Seepat Road Bilaspur (C.G.). mSUS RESPONDENTS _.__._._ r"’”s'rATE OF cmT'rIssARH throaghr- Secretary Department of Public Health s: Emily Welfare and Medical ’ Education. V‘E§;7K.S.BHAW, Raipur (c.G.). Ky. 2. Pt .Ravishankar 3huk1a University through its Registrar Raipur (C-G. ) . \/ ‘ P§.Jawahar Dean, Lal Nehru V ‘M Mgéical College, ' Riipur (COGO). The Board of, Higher Secondary Education, through its Controller. Raim (C9GO ) o v/S. Medieal- Council of India Aiwan-E-Galib Marg, Kotla Road. New §e1hi - 116002. Director Health Services Goverament of ehhattisgarh D.K. S.Bhawan 4 w Raipur (C.G.). w? mCLUDIm WIT OF MANDAMUS AND FURTHER DIRECTIONS ETC: l ~ . . I’ r v r 4 v A: ‘ i-EEGH COURT OF CHHATTISGARJ‘I ; BILASPUR W.P. NO, 1 188i2002 WRIT PETITION UNDER ARTICLE 226 I 227 OF CONSTITUTION OF INDIA 7 Dr. Atjn Kundu 65 Ors Petitionsrs Versus Th6 Stats of Chhattisgarh (35 Ors. Respondents For petitionam; Shri Kanak Tiwari with Shli Sandeep Dubey, Advocata For respondents: Shri Ravindra Shrivastava, Advocate Gensral with Dr. N.K. Shukla, AddL Adv. Goneral 8a Shri Semjay K Agalwal, Dsputy Advocate General for the respondent‘ Nos. l t04&6. 31m v.v.s. Murthy, AddL Cenkal Govt. Standing counsel for respondent No.5. Shn‘ B.C. Mishra, Shri Rajeev Shrivastava, Shri Manindra Shrivastava, Shri M. P. S. Bha‘ria, Shri Prashant Jaiswal, counsel for the interveners; Date of Order 10/12/2002 PRESENT: HON’3LE SHE JUSTICE P.C.NAIK In Medical Council‘of India Vs Madhu Singh (AIR 2002 SCW S742), the Apex Court has, if one may say so with respect, Very aptly observed that “when time of admission to Medical Courses arrives, immediately comes to mind Shakgspeares’ Othello, where it has been written “Chaos is come again”. Inevitable resultis that considerable time is lost by candidates chasing Vires instead of Virus.” Thisxvery aptly applies to the case at hand. 2. The petitioners, wholare 3O in number, have preferled this writ petition calling in question the validity of Rule 6.3 of the “Chhattisgarh Snatakottar PraVesh Pariksha Niyam 2002” in short, “PG Rules 2002” which mandates that completion of two years‘service in a Rural Primaty Health i Centre under the State Govemment on or'before 30th April of the Pre~PG Examination is a must. The immediate egect being that even those candidates who have an outstanding academic career will not be able-to take up the Ple — PG Examination in case they have not done service under a “‘H Rural Primary Health Centre for a period of two years though they may have been practicing in a rural area. 3. According to the petitioners, since coordination and determination of standards in institutions of higher education or research and scientific and technical institutions is a matter falling under Entry 66 of List 1 of the VII Schedule to the Constitution of India and, the Medical Council of India having framed the Post Graduate Medical Regulau'ons, 2000, the State Government could not, in [exercise of legislative powers under Entry 25 of List III (Concurrent), have any power to legislate and provide for an eligibility criteria for admission to Post Graduate Courses as it is an occupied iield under Entry 66 of T116 Union List. It waS submitted that the Indian Medical Council Act, 1956 is a Ccntral legislation and tho rcgulations framcd thereunder arc a complcto code which lay down tho method that may be adopted for selection of the candidates for the Pre—PG course / and the qualification which they Should possess in order to ‘i make them eligible for being considered. The State cannot, according to the petitioners, fix any other criteria or lay down any other standard, which may have the effect of debarring a student to take up the Pre-PG test though he may be qualified and eligible as per the Medical Council of India Regulations. In short, the case of the petitioners is that Rule 6.3 of the Post Graduate Rules not only curtails but literally takes away the right of a candidate, who is otheiwise qualified under the Medical Council of India Regulations to appear at a Pre‘PG test unless he does compulsory service under a Rural Primary Health Centre under the State and this means 100 per cent reservation for in—service candidates which is‘ illegal. On the other hand, it is the case of the respondent— State that the State Government has full legislative competence and power to frame a rule to regulate admission into medical colleges and lay down conditions of eligibility, t// more so when these institutions are run out of the funds of the State Government and so long as the standards of medical educatiOn as prescribed by the Union Legislation are not in any way diluted or lowered down. lt is the further casa that the impugned ruls (6.3) relates to eligibility for appearance at the Pre-PG Examinau'on and it in no way dilutcs or lowers down the standard of education laid down by the Regulations of 2002 and on the contiaiy, the training and exposure will better equip them for higher studies. According to the State, the power of the Union to legislate is confined only to make law in regard to “standards of Medical Education” and not beyond that and the State has not in any way lowered the standard of medical education laid down by the Medical Council of India by naming Rule 6.3. At any rate, according to the State, the Government has taken a policy decision that only those, who serve in a Rural Primary Health Centre, will be eligible to take up the Pre—PG test and do Post Graduation. This policy decision, it was submitted, has been taken because the doctors were refusing to take up rural service because of which the rural population was sutfering and in order to implement the obligation of providing rural health, Rule 6.3 has been incorporated. And that being a policy decision, it is not open to challenge before the Court. At any rate, it was submitted that right to education not being a Fundamental Right, the petitioners have no cause of action. 4. Before proceeding further, it would be appropriate to make a reference to the relevant provisions of the Pre-PG Rules and the entries in the VII Schedule to the Constitution 4 of India, which were referred to at the time of hearing. \ A , / Rule 6 of the Pre-PG Rules, 2002 provides the eligibility cn‘ten'a, which a candidate must fulfil for admission to Post Graduate Coursss. Rclavant part of Rule 6.3 thcxtof reads thus: “Has completed 2 years service in a rural Primary Health Centre under the State Government on or before 30th April of the Pre— PG Examirxa’rion. For this the candidate will have to submit a certificate given by the Director of Health Services Chhattisgarh in the prescribed format.” \A\ 1‘ Reference may also be made to the relevant entries of the VII Schedule to the Consn'tun'on of India to which refeience was made. These are quoted thus; Entry 66 of List I (Union List) “Co—ordination and determination of standards in institutions for higher education or research and scientiiic and technical institutions. Entry 25 of List III (Concurrent List) a “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. Entry 6 of List II (State List) “Public health and sanitation; hospitals and dispensaries.” 5. The Indian Medical Council Act, 1956 (in short, the ‘Act’) was enacted to provide for the reconstitution of the Medical Council of India (in short, the M,C.I.) and maintenance of a Medical Register for India and for matters connected thereof. One of the objects of the Bill and reasons / amongst other, is to provide for the formulation of a Committee of Post Graduate Medical Education for the guidance of universities and to advise universities in the matter of securing uniform standards for Post Graduate Medical Education throughout India. 6. Section 33 of the Act gives to the Council, with the previous sanction of the Central Government, the power to v): make regulations generally to cariy out the purpose of the Act and these regulations may provide including others for the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations. In exercise of these powers, the Medical Council of India with the previous sanction of the Central Government has made the Post Graduate Medical Education Regulations, 2000, which have admittedly come into force, /c A, Under Clause 3.1 of the Regulation, the goal of Post Graduate Medical Education is to produce competent specialists and] or medical teachers. Clause 8.3 of the Regulation lays down that every student selected for admission to a postgraduate medical course in any of the medical institution in the country, shall possess recognized MBBS degree or equivalent qualification and should have obtained permanent registration with the Medical Council of India or any of the State Medical Councils or should obtain the same within one month from the date of “/5 admission, failing which the admission of the candidate shall be cancelled. Clause 9 of the Regulation relates to selection of postgraduate students and being relevant for the purpose of this case, is quoted in extenso: “(1) Students for postgraduate medical courses shall be selected strictly on the basis of their academic merit. (2) For determining the. academic merit, the University/instimtion may adopt any one of the following procedures both for degree and diploma courses:- (i) On the basis of merit as determined by a competitive test conducted by the smte government or by the competent authority appointed by the state government or by the university/ group of universities in the same state; or (ii) On the basis of merit as determined by a centralized competitive test held at the national level; or (iii) On the basis of the individual cumulative performance at the hrst, second and third MBBS examinations, if such examinations have been passed from the same university; or (iv) Combination of (i) and (iii): Provided that Wherever entrance test for postgraduate admission is held by a state government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 percent for general category candidates and 4O percent for the candidates belonging to Scheduled Castes, Scheduled Tribes an Other Backward Classes: Provided further that in non—governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent by the management of the institution on the basis of merit.” (é% GE \7 {L7 Thus, it would be seexl that under Clause 9, a student for sslect'mn for admission to a postgraduaté course, must posscss a mcognized MBBS degree 0r equivalent ¥qua1if1c7ation and should have obtained a permanent registrau'on and the selection is to be made strictly on the basis of the academic merit. Under the Proviso, only those students Will be eligible for admission Who have secured 50 percent of marks if belonging to the general category and 40 percent of marks if belonging to SC, ST or OBC at the Entrance Examination. 7. Challenge was also raised to Rule 6.3 of RG. Rules 2002 on the ground that it lays down a condition, which was impossible to fulnll by 30*}1 April 2002 and it should therefore be struck down. According to the petitioners, since the State of Chhattisgarh came into existence on 01/11/2000, it was impossible for any one to put in two years of rural service under a Primary Health Centre under the Government of Chhattisgarh because this is what is required under the Rules. In View of the definition of the word “State Government” under Rule 2. 1 which defines it to mean the “Government of Chhattisgarh". Thus, it was submitted that ineligible students had, on a wrong certiiication, been held eligible to appear in the examination whereas the petitioners had been wrongfully deprived from undertaking the test. \ . \ In reply, it was contended by the learned Advocate General that the interpretation of Rule 6.3 as put by the petitioners, was not correct. The word “State Government”, it was submitted, cannot be confined to the Government of Chhattisgarh, but also includes the State of Madhya Pradesh. Accordingly, it was submitted that a candidate, who had put in two years of rural service in a Rural Primary Health Centre either under the Government of Madhya Pradesh, or under the Government of Chhattisgarh on or before 30th April, 2002, is eligible to undertake the Pre-PG Examination and as such the candidates, who were issued admit cards, are those who had put in two years of service under a Rural Primaiy Health Centre under the Government of Madhya Pradesh and/ or Government of Chhattisgarh. &A‘ Opposing the prayer, the learned Advocate General submitted that the State was justified in incorporating Rule 6.3, as an eligibility criteria. At any rate, it was submitted that though the State could not dilute the standard laid down by the Medical Council of India, it was perfectly within its right to provide something in addition to the standard laid down by the Medical Council of India. Reliance is placed on the decision of the Apex Court in K Chitralekha Vs. State of Mysore, 1964 (2) SCC 1823. It was also submitted that the condition of two years mandatory rural service has been - introduced because, the doctors were not prepared to do rural service. 'A lot of statistics was placed before the Court in support of his contention, According to the State, out of 10 1792 sanctioned posts, 588 posts am lying Vacant out of which 438 are in the rural areas. It was submitted that the action was deemed necessary because it was felt by The State that the doctors do not co—operate with the State Government to fuliill the Constitutional obligation of the State as stipulated in Article 47 of the Constitution of India, which enjoins the Government to provide medical facilities to the citizens. According to the State, the students who obtain their degree course from the State funded medical colleges have a social obligation to serve the State and specially those areas which lack medical facilities. It was to meet this challenge that the State Government had incorporated Rule 6.3 so that those doctors who are anxious to obtain postgraduate degree] diploma are obliged to put in two years of mandatory rural service under the State Govemment. It was further submitted that this exposure would further equip these young doctors and help to improve their standard for higher medical education. It was also submitted that Rule 6.3 in no way offends clause 9 of the Regulations framed by the Medical Council of India, for it has nothing to do with the selection criteria, but is in fact an eligibility criteria laid down by the State Government and it cannot be construed as providing for 100% reservation for in-service candidates. yh, 9. At this stage, it will be relevant to mention that after the interim order was passed, the State Government promulgated an ordinance “Chhattisgarh Medical 11 Snatkottar PraV€sh Parseksha Niyam, 2002 (Sanshodhan) Adhyadesh, 2002” [hereinafter referred to as “Chhattisgarh Adhyadssh (No.8 of 2002)] which was brought into force from 15—05—2002. By this ordinance, an Explanation has boon added to Rule 6.3. This explanation reads thus: “For the purposes of Ru1e 6.3 above, the expression “under the State Government” shall include, and be deemed to have always included, the State Government as it pre— existed prior to 15‘ November 2000 in relation to area now comprised in the State of Chhattisgarh.” The ordinance further provides that notwithstanding anything contained in the Chhattisgarh Medical Snatkottar Pravesh Pareeksha Niyam, 2002, any action taken, proceedings accomplished, or anything done, under the provisions of Rule 6.3 of the said rules, shall be deemed to have been done or carried out under the provisions of this Ordinance. This Ordinance subsequently has been replaced by “Chhattisgarh Chikitsa Mahavidyalayon Ke Snatakottar Pathyakramon mein Pravesh Adhiniyam 2002” (Act 1:10.26 of 2002y 10. It was also contended on behalf of the State that the petitioners were under a mistaken notion that the right to seek admission to the Post Graduate Courses was a fundamental right when it in fact it is not as held by the Apex Court in Unni Krishnan, JP & Others Vs State of Andhra Pradesh (AIR. 1993 SC 2178). It was further submitted that the criteria laid down by the State 12 Government was 1'11 the realm of a policy dacision of the State which was in exercise of its multifarious activities of governance under the Constituu’on and since it was based upon the perception of the State Government as a‘welfare Government, the Comt could not sit in appeal over the said policy decision. It was also submitted that looking to the F,‘ vfr needs of rural people, the policy could not be characterized as arbitrary. It was the further submission that since the Government spends lakhs of rupees in imparting Graduate and Post-Graduate Medical Education, it was perfectly within its right to lay down a criteria making rural service mandatory for a person seeking admission to the Post— Graduate Classes. 11. Notice of the petition was also served on Medical Council of India on Whose behalf Shii V.V.'S. Murthy’ Additional Standing Counsel for Central Government, has entered appearance. But, inspite of time having been granted, he has not med any return but stated that he would support the Government’s stand. . 12. Prayer for intervention was also made on behalf of Dr.Smt. Jenevibha, Dr.A.K.Humane, Dr.K.K. Ramteke, Dr. Nanakram Sachdev and Dr.M.K. Rai, which was granted, and Shri B.C.Mish_ra, Shri Manindra Shrivastava, Shri M.P.S.Bha1ia, Shri Prashant Jaiswal and Shri Rajeev Shrivasta, Advocates who had entered appearance on their behalf and were also heard. 13 13. The lamed counsel for the Interveners had invited attention to Clause—IX of M.C.I. regulations, which provides the diEerent modes which could be adopted for selecting candidates for admission to P‘G. Class. According to the learned counsel, since M.C.I. did not prescribe any eligibility criteria, it was open to the State Government to prescribe the same i.e., to lay down some conditions, which were required to be fulfilled before a person would be permitted to take up the test. It was also submitted that the persons who have rendered two years service under a Rural Primary Health Centre constitute a well denned class and mandatory service has a neXus with the object sought to be achieved which is . to provide for Rural Health. Thus, the requirement was rational and not arbitrary nor did it offend Entry 66 of List I. It was submitted that at any rate, the pro‘vision of mandatoly Rural Service does not in any way dilute the standard of education laid down by the Medical Council of India, hence it was Valid. x/y 14. Lengthy arguments were advanced by the learned Counsel for the petitioners on the exclusive power of the Medical Council of India to prescribe a minimum standard of Medical Education and lit was stated that it has implicit power to supervise the qualihcation or eligibility standard for admission into the medical institutions. Reference was also made to the Post-Graduate Medical Education Regulations 14 2000, which are framed in Exercise of powers confexred by Section 33 of the Indian Medical Council Act, 1956. 15. The Regulations of 2000 lay down ihat the Post— Graduate Degree Course shall be of three years duration and the Post—Graduate Diploma Course shall be of two years duration and that the students of Post-Graduate Medical Courses shall be selected strictly on the basis of their academic merit. As has been noticed in the earlier part of the judgment, a candidate should possess a recognized M.B.B.S. Degree or equivalent qualification and should have a permanent registration of the Medical Council of India or any State Council or obtain the same within one month from the date of his admission. Apart from this, no other criteria is laid down. That the teaching and syllabus is as per the norms laid down by the Medical Council of India is not \lx disputed. The bone of contention, however, is whether the prescription of two years rural service relates to or can be said to relate