TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS VERSUS UNION OF INDIA & ORS

IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO(S).196 2018 TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS. PETITIONER(S UNION OF INDIA & ORS. RESPONDENT(S W.P.(C) NO. 252 2018 W.P.(C) NO. 295 2018 W.P.(C) NO. 293 2018 O R D E R Issue notice in the fresh writ petitions Standing Counsel for the concerned States Union of India and Medical Council of India appear and accept notice for the respective parties 3. In these writ petitions Regulation 9(IV) and VII) after amendment dated 05.04.2018 Regulation 9(4) and of the Post Graduate Medical Education Regulations 2000 as framed by the Medical Council of India are under challenge To get a comprehensive idea Regulation 9 to the extent relevant up to sub regulation reads as “9. Procedure for selection of candidate for Postgraduate courses shall be as follows: 1) There shall be a uniform entrance examination to all medical educational institutions at the Postgraduate level namely ‘National Eligibility cum Entrance Test’ for admission to postgraduate courses in each academic year and shall be conducted under the overall supervision of the Ministry of Health Family Welfare Government of The “designated authority” to conduct the ‘National Eligibility cum Entrance Test’ shall be the National Board of Examination or any other body organization so designated by the Ministry of Health and Family Welfare Government of India. In order to be eligible for admission to Postgraduate Course for an academic year it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the ‘National Eligibility Cum Entrance Test for Postgraduate courses’ held for the said academic year. However in respect of candidates belonging to Scheduled Castes Scheduled Tribes and Other Backward Classes the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act 2016 the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC ST OBC. The percentile shall be determined on the basis of highest marks secured in the All India Common merit list in National Eligibility cum Entrance Test for Postgraduate Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility cum Entrance Test held for any academic year for admission to Postgraduate Courses the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the academic year only The reservation of seats in Medical Colleges institutions for respective categories shall be as per applicable laws prevailing in States Union Territories. An all India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility cum Entrance Test and candidates shall be admitted to Postgraduate Courses from the said merit lists only Provided that in determining the merit of candidates who are in authority weightage in the marks may be given by the Government Competent Authority as an incentive upto 10% of the marks obtained for each year of service in remote and or difficult areas or Rural areas upto maximum of 30% of the marks obtained in National Eligibility cum Entrance Test. The remote and or difficult areas or Rural areas shall be as notified by State Government Competent authority from time to time.” 5% seats of annual sanctioned intake capacity shall be filled up by persons with benchmark disabilities in accordance with the provisions of the Rights of Persons with Disabilities Act 2016 based on the merit list of National Eligibility Cum Entrance Test for admission to Postgraduate Medical Courses In order to be eligible for admission to Postgraduate Course for an academic year it shall be necessary for a candidate to obtain minimum of marks at 50thpercentile in the ‘National Eligibility Cum Entrance Test for Postgraduate courses’ held for the said academic year. However in respect of candidates belonging to Scheduled Castes Scheduled Tribes and Other Backward Classes the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act 2016 the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC ST OBC. No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub Clause above shall be admitted to any Postgraduate courses in the said academic year. colleges institutions 50% of the total seats shall be filled by State Government or the Authority appointed by them and the remaining 50% of the seats shall be filled by the colleges institutions on the basis of the merit list prepared as per the marks obtained in National Eligibility cum Entrance Test.” 50% of the seats in Postgraduate Diploma Courses shall be reserved for Medical Officers in the Government service who have served for at least three years in remote and or difficult areas and or Rural areas After acquiring the Postgraduate Diploma the Medical Officers shall serve for two more years in remote and or difficult areas and or Rural areas as defined by State Government Competent authority from time to time. …” This was subject matter of a Three Judge Bench decision of this Court in State of Uttar Pradesh and Others v. Dinesh Singh Chauhan reported in9 SCC 749. There have been some minor amendments thereafter in Regulation 9. The relevant consideration of Regulation 9 in Dinesh Singh Chauhanis at paragraphs 24 to 27 which read as follows: “24. By now it is well established that Regulation 9 is a self contained code regard ing the procedure to be followed for admis sions to medical courses. It is also well es tablished that the State has no authority to enact any law much less by executive instruc tions that may undermine the procedure for admission to postgraduate medical courses enunciated by the Central legislation and regulations framed thereunder being a sub ject falling within Schedule VII List I Entry 66 of the Constitutionof Regulation 9 mandates that there shall be a single National Eligi bility cum Entrance Test to be conducted by the 25.2. Clause provides for three per cent seats of the annual sanctioned intake capacity to be earmarked for candidates with locomotory disability of lower limbs. We are not concerned with this provision 25.3. Clauseprovides for eligibil ity for admission to any postgraduate course in a particular academic year 25.4. Clause is the relevant provi sion. It provides for reservation of seats in medical colleges institutions for reserved categories as per applicable laws prevailing in States Union Territories. The reservation referred to in the opening part of this clause is obviously with reference to reservation as per the constitutional scheme for the Scheduled Caste the Scheduled Tribe or the Other Backward Class candidates) and not for the in service candidates or medical officers in service. It further stipulates that all India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in NEET and the admission to post graduate courses in the State concerned shall be as per the merit list only. Thus it is a provision mandating admission of candidates strictly as per the merit list of eligible candidates for the respective medical courses in the State. This provision however con tains a proviso. It predicates that in deter mining the merit of candidates who are in service of the Government or a public author ity weightage in the marks may be given by the Government competent authority as an in centive @ 10% of the marks obtained for each year of service in specified remote or diffi cult areas of the State up to the maximum of 30% of the marks obtained in NEET. This pro vision even if read liberally does not pro vide for reservation for in service candi dates but only of giving a weightage in the form of incentive marks as specified to the class of in service candidates 6 SCR 368 Kumari Chitra Ghosh and Another v. Union of India and Others reported in 2 SCC 228 and Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in 7 SCC 353 have not been considered in Dinesh Singh Chauhan on the aspect of the legislative competence under List I Entry 66 and List III Entry 25 of the Seventh Schedule. List I Entry 66 reads as follows: “66. Co ordination and determination of standards in institutions for higher education or research and scientific and Entry 25 of List III reads as follows: “25. Education including technical universities subject to the provisions of entries 63 64 65 and 66 of List I vocational and technical training of labour.” 8. The main dispute pertains to the claim made by the State for reservation in favour of the in service candidates in respect of 50% of the seats granted to the States since 50% of the seats in any case are set apart for All India category 9. It is the main contention of the petitioners that while “the coordination and determination of standards in institutions for higher education” is within the exclusive domain of the Union medical education under Entry 25 List III though made subject to Entry 66 of List I being an Entry in the Concurrent List the State is not denuded of its power to legislate on the manner and method for admissions to Post Graduate Medical Courses 10. It is submitted that though Regulation 9(4 provides for 10% incentive for every year of service in remote difficult rural areas up to a maximum of 30% of the score the provision will not enure to the benefit of the in service candidates. It is pointed out that the States have been following for several reasons and for several years the pattern of reservation in respect of 50% of State Quota for the in service candidates. It is submitted that even in that 50% the list can be prepared by providing the incentive for the service in difficult rural or remote areas. It is also pointed out that the Regulations also have considered the power of the State to provide for reservation. This can be seen from Regulation 9(8) which provides for reservation of 50% of the seats in Post Graduate Diploma Courses for medical officers in Government service in the State who have served for at least three years in remote and difficult areas with a further condition of minimum continued service of two years in such areas. It is also the contention of the petitioners that if there can be such a reservation in the case of Post Graduate Diploma Courses there is no justification for denying such a reservation in case of the Post Graduate Degree Courses 11. On behalf of the Union of India and the Medical Council of India it is pointed out that once an Entry is provided under List I it is the exclusive domain of the Union and even if the Union has not legislated exhaustively in respect of that Entry the State cannot legislate on that subject. Our reference has been invited to the decision of this Court in Gujarat University and Another v. Krishna Ranganath Mudholkar and Others reported in has not considered the legislative Entries in respect of the contentions we have noted above. Apparently it appears no such contentions were raised before the Court. Same is the situation with regard to the non reference with respect to the three Constitution Bench decisions we have referred to above. As far as Modern Dentalis concerned perhaps the judgment had not been published by the time the judgment in Dinesh Singh Chauhanwas rendered. 13. The petitioners have raised several other contentions and invited our reference to the judgments by Benches of equal strength as in Dinesh Singh Chauhan[MOHAN M. SHANTANAGOUDAR] NEW DELHI APRIL 13 2018 ITEM NO.55 COURT NO.5 SECTION X S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Writ Petition(s)(Civil) No(s). 196 2018 TAMIL NADU MEDICAL OFFICERS’ ASSOCIATION & ORS. Petitioner(s VERSUS UNION OF INDIA & ORS. Respondent(s W.P.(C) No. 252 2018No. 295 2018No. 293 2018(RENU DIWAN COURT MASTER ASSISTANT REGISTRAR Signed “Reportable” order is placed on the file

Summary: “List III of Seventh Schedule consists of items shared by both Union and the States In these writ petitions, Regulation 9(IV) and (VII), after amendment dated 05.04.2018 – Regulation 9(4) and (8) of the Post Graduate Medical Education Regulations, 2000, as framed by the Medical Council of India, were under challenge.This was subject matter of a Three-Judge Bench decision of this Court in State of Uttar Pradesh and Others v. Dinesh Singh Chauhan, reported in (2016) 9 SCC 749. There had been some minor amendments thereafter in Regulation 9. ISSUE BEFORE THE COURT: Whether the State is denuded of its power to legislate on the manner and method for admissions to Post Graduate Medical Courses because of the item falling in Union and Concurrent List? RATIO OF THE COURT:Learned senior counsel for the petitioners have vehemently contended that at least three Constitution Bench decisions of this Court, namely, R. Chitralekha and Another v. State of Mysore and Others, reported in (1964) 6 SCR 368, Kumari Chitra Ghosh and Another v. Union of India and Others, reported in (1969) 2 SCC 228 and Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others, reported in (2016) 7 SCC 353, have not been considered in Dinesh Singh Chauhan (supra), on the aspect of the legislative competence under List I, Entry 66 and List III, Entry 25 of the Seventh Schedule.It was the main contention of the petitioners that while “the coordination and determination of standards in institutions for higher education” is within the exclusive domain of the Union, medical education under Entry 25, List III, though made subject to Entry 66 of List I, being an Entry in the Concurrent List, the State is not denuded of its power to legislate on the manner and method for admissions to Post Graduate Medical Courses.It was also submitted that though Regulation 9(4) provides for 10% incentive for every year of service in remote/difficult/rural areas up to a maximum of 30% of the score, the provision will not be available to the benefit of the in-service candidates.It was pointed out by the counsel for the UoI that once an Entry is provided under List I, it is the exclusive domain of the Union and even if the Union has not legislated exhaustively in respect of that Entry, the State cannot legislate on that subject. He also submitted that all the contentions raised by the petitioners have been considered in Dinesh Singh Chauhan (supra) and, therefore, the writ petitions are only to be dismissed.The court was of the view that far as Modern Dental (supra) was concerned perhaps the judgment had not been published by the time the judgment in Dinesh Singh Chauhan (supra) was rendered. The petitioners raised several other contentions and invited the reference to the judgments by Benches of equal strength as in Dinesh Singh Chauhan (supra). In the above circumstances, the court held it appropriate that thee writ petitions require consideration by a larger Bench.DECISION HELD BY COURT:Accordingly, the court placed the matters before the Hon’ble the Chief Justice of India for consideration by a larger Bench, emergently.The petitioners were deemed free to make a mention on the 16th April, 2018 before Hon’ble the Chief Justice of India.