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PETITIONER:

DR. PREETI SRIVASTAVA & ANR.

Vs.

RESPONDENT:

THE STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT: 10/08/1999

BENCH:

S.B.Majmudar

JUDGMENT:

S.B.Majmudar, J.

Leave granted.

I have carefully gone through the draft judgment

prepared by our esteemed colleague Justice Sujata V.

Manohar. I respectfully agree with some of the conclusions

arrived at therein at pages 61 and 62, namely, conclusion

nos. 1 and 4. However, so far as conclusion nos. 2 and 3

are concerned, I respectfully record my reservations and

partially dissent as noted hereinafter. In my view, the

common entrance examination envisaged under the regulations

framed by the Medical Council of India for Postgraduate

Medical Education does not curtail the power of the State

Authorities, legislative as well as executive, from fixing

suitable minimum qualifying marks differently for general

category candidates and for SCs/STs and OBC candidates as

highlighted in my present judgment.

So far as conclusion no.3 is concerned, with respect,

it is not possible for me to agree with the reasoning and

the final conclusion to which our esteemed colleague Justice

Sujata V. Manohar has reached, namely, that fixing minimum

qualifying marks for passing the entrance test for admission

to postgraduate courses is concerned with the standard of

Postgraduate Medical Education.

I, however, respectfully agree to that part of

conclusion no.3 which states that there cannot be a wide

disparity between the minimum qualifying marks for reserved

category candidates and the minimum qualifying marks for

general category candidates at this level. I also

respectfully agree that there cannot be dilution of minimum

qualifying marks for such reserved category candidates up to

almost a vanishing point. The dilution can be only up to a

reasonable extent with a rock bottom, below which such

dilution would not be permissible as demonstrated

hereinafter in this judgment. In my view, maximum dilution

can be up to 50% of the minimum qualifying marks prescribed

for general category candidates. On that basis if 45%

passing marks are prescribed for general category,

permissible dilution can then go up to 22 and 1/2 % (50% of

45%). Any dilution below this rock bottom would not be

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permissible under Article 15(4) of the Constitution of

India.

For reaching the aforesaid conclusions, I have

independently considered the scheme of the relevant

provisions of the Constitution in the light of the various

judgments of this Court as detailed hereinafter :

Entry 66 of List I, Old Entry 11(2) of List II and

Entry 25 of List III:

Entry 66 of List I of the Seventh Schedule reads as

under : Co-ordination and determination of standards in

institutions for higher education or research and scientific

and technical institutions.

Old Entry 11 of List II, as earlier existing in the

Constitution of India, read as under :

Education including universities, subject to the

provisions of entries 63, 64, 65 and 66 of List I and entry

25 of List III.

While Entry 25 of List III as now existing in the

Seventh Schedule of the Constitution reads as under :

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.

A conjoint reading of these entries makes it clear

that as per Entry 11 of List II which then existed on the

statute book, all aspects of education, including university

education, were within the exclusive legislative competence

of the State Legislatures subject to Entries 63 to 66 of

List I and the then existing Entry 25 of List III. The then

existing Entry 25 of the Concurrent List conferred power on

the Union Parliament and State Legislature to enact

legislation with respect to vocational and technical

training of labour. Thus, the said Entry 25 of List III had

nothing to do with Medical Education. Any provision

regarding Medical Education, therefore, was thus covered by

Entry 11 of List II subject of course to the exercise of

legislative powers by the Union Legislature as per entries

63 to 66 of List I. In the light of the aforesaid relevant

entries, as they stood then, a Constitution Bench of this

court in The Gujarat University, Ahmedabad vs. Krishna

Ranganath Mudholkar & Ors., 1963 Suppl.(1) SCR 112, speaking

through J.C.Shah, J., for the majority, had to consider

whether the State Legislature could impose an exclusive

medium of instruction Gujarati for the students who had to

study and take examination conducted by the Gujarat

University. It was held that If a legislation imposing a

regional language or Hindi as the exclusive medium of

instruction is likely to result in lowering of standards, it

must necessarily fall within Item 66 of List I and be

excluded to that extent from Item 11 of List II as it then

stood in the Constitution. Medium of instruction was held

to have an important bearing on the effectiveness of

instruction and resultant standards achieved thereby. In

this connection, pertinent observations were made at pages

142 and 143 of the aforesaid Report: If adequate

text-books are not available or competent instructors in the

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medium, through which instruction is directed to be

imparted, are not available, or the students are not able to

receive or imbibe instructions through the medium in which

it is imparted, standards must of necessity fall, and

legislation for co-ordination of standards in such matters

would include legislation relating to medium of instruction.

If legislation relating to imposition of an exclusive medium

of instruction in a regional language or in Hindi, having

regard to the absence of text-books and journals, competent

teachers and incapacity of the students to understand the

subjects, is likely to result in the lowering of standards,

that legislation would, in our judgment, necessarily fall

within item 66 of List I and would be deemed to be excluded

to that extent from the amplitude of the power conferred by

item No.11 of List II.

However, after the deletion of Entry 11 from List II

and re-drafting of Entry 25 in the Concurrent List as in the

present form, it becomes clear that all aspects of

education, including admission of students to any

educational course, would be covered by the general entry

regarding education including technical and medical

education etc. as found in the Concurrent List but that

would be subject to the provisions of Entries 63 to 66 of

List I. Therefore, on a conjoint reading of Entry 66 of

List I and Entry 25 of List III, it has to be held that so

long as the Parliament does not occupy the field earmarked

for it under Entry 66 of List I or for that matter by

invoking its concurrent powers as per Entry 25 in the

Concurrent List, the question of admission of students to

any medical course would not remain outside the domain of

the State Legislature. It is not in dispute that up till

now the Parliament, by any legislative exercise either by

separate legislation or by amending the Indian Medical

Council Act, 1956 has not legislated about the controlling

of admissions of students to higher medical education

courses in the country. Therefore, the only question

remains whether the Indian Medical Council Act enacted as

per Entry 66 of List I covers this aspect. If it covers the

topic then obviously by the express language of Entry 25 of

List III, the said topic would get excluded from the

legislative field available to the State Legislature even

under Entry 25 of Concurrent List. For answering this

question, we have therefore, to see the width of Entry 66 of

List I. It deals with Co-ordination and determination of

standards in institutions for higher education... A mere

reading of this Entry shows that the legislation which can

be covered by this entry has to deal basically with

Co-ordination and determination of standards in

institutions for higher education. Meaning thereby, the

standards of education at the institutions of higher

education where students are taking education after

admission are to be monitored by such a legislation or in

other words after their enrolment for studying at such

institutions for higher education such students have to

undertake the prescribed course of education evolved with a

view to having uniform and well laid down standards of

higher medical education. It cannot be disputed that

postgraduate teaching in medical education is being imparted

by institutions for higher medical education. But the

question is whether the topic of admission of eligible

candidates/students for taking education in such

institutions has anything to do with co-ordination and

determination of standards in these institutions. Now

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standards in the institutions have been prefixed by two

words, namely, co-ordination and determination of such

standards as per Entry 66 of List I. So far as

co-ordination is concerned, it is a topic dealing with

provision of uniform standards of education in different

institutions so that there may not be any hiatus or

dissimilarity regarding imparting of education by these

institutions to the students taking up identical courses of

study for higher medical education in these institutions.

That necessarily has a nexus with the regulations of

standards of education to be imparted to already admitted

students to the concerned courses of higher education. But

so far as the phrase determination of standards in

institutions for higher education is concerned, it

necessarily has to take in its sweep the requirements of

having a proper curriculum of studies and the requisite

intensity of practical training to be imparted to students

attaining such courses. But in order to maintain the fixed

standard of such higher medical education in the

institutions, basic qualification or eligibility for

admission of students for being imparted such education also

would assume importance. Thus, the phrase determination of

standards in institutions for higher education would also

take in its sweep the basic qualifications or eligibility

criteria for admitting students to such courses of

education. It can, therefore, be held that the Indian

Medical Council Act, 1956 enacted under Entry 66 of List I

could legitimately authorise Medical Council of India which

is the apex technical body in the field of medical education

and which is enjoined to provide appropriately qualified

medical practitioners for serving the suffering humanity to

prescribe basic standards of eligibility and qualification

for medical graduates who aspire to join postgraduate

courses for obtaining higher medical degrees by studying in

the institutions imparting such education.

But the next question survives as to whether after

laying down the basic qualifications or eligibility criteria

for admission of graduate medical students to the higher

medical education courses which may uniformly apply all over

India as directed by the Medical Council of India, it can

have further power and authority to control the intake

capacity of these eligible students in a given course

conducted by the institutions for higher postgraduate

medical education. In other words, whether it can control

the admissions of eligible candidates to such higher medical

education courses or lay down any criteria for short-listing

of such eligible candidates when the available seats for

admission to such higher postgraduate medical education

courses are limited and the eligible claimants seeking

admission to such courses are far greater in number? So far

as this question is concerned, it immediately projects the

problem of short- listing of available eligible candidates

competing for admission to the given medical education

course and how such admissions could be controlled by

short-listing a number of eligible candidates out of the

larger number of claimants who are also eligible for

admission. In other words, there can be too many eligible

candidates chasing too few available seats. So far as this

question is concerned, it clearly gets covered by Entry 25

of Concurrent List III rather than Entry 66 of List I as the

latter entry would enable, as seen above, the Medical

Council of India only to lay down the standards of

eligibility and basic qualification of graduate medical

students for being admitted to any higher postgraduate

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medical course. Having provided for the queue of basically

eligible qualified graduate medical students for admission

to postgraduate medical courses for a given academic year,

the role of Medical Council of India would end at that

stage. Beyond this stage the field is covered by Entry 25

of List III dealing with education which may also cover the

question of controlling admissions and short-listing of the

eligible candidates standing in the queue for being admitted

to a given course of study in institutions depending upon

the limited number of seats available in a given discipline

of study, the number of eligible claimants for it and also

would cover the further question whether any seats should be

reserved for SC,ST and OBCs as permissible to the State

authorities under Article 15(4) of the Constitution of

India. So far as these questions are concerned, it is no

doubt true that Entry 25 of Concurrent List read with

Article 15(4) of the Constitution of India may

simultaneously authorise both the Parliament as well as the

State Legislatures to make necessary provisions in that

behalf. The State can make adequate provisions on the topic

by resorting to its legislative power under Entry 25 of List

III as well as by exercising executive power under Article

162 of the Constitution of India read with entry 25 of List

III. Similarly, the Union Government, through Parliament,

may make adequate provisions regarding the same in exercise

of its legislative powers under Entry 25 of List III. But

so long as the Union Parliament does not exercise its

legislative powers under Entry 25 of List III covering the

topic of short-listing of eligible candidates for admission

to courses of postgraduate medical education, the field

remains wide open for the State authorities to pass suitable

legislations or executive orders in this connection as seen

above. As we have noted earlier, the Union Parliament has

not invoked its power under Entry 25 of List III for

legislating on this topic. Therefore, the field is wide

open for the State Governments to make adequate provisions

regarding controlling admissions to postgraduate colleges

within their territories imparting medical education for

ultimately getting postgraduate degrees. However, I may

mention at this stage that reliance placed by Shri

Chaudhary, learned senior counsel for the State of Madhya

Pradesh on a Constitution bench judgment of this Court in

Tej Kiran Jain & Ors. vs. N.Sanjiva Reddy & Ors., 1970(2)

SCC 272, interpreting the word in in the phrase in

Parliament to mean during the sitting of Parliament and in

the course of the business of Parliament cannot be of any

avail to him while interpreting the phrase determination of

standards in institutions for higher education as found in

Entry 66 of List I. His submission, relying on the

aforesaid decision that directions regarding standards in

institutions mean only those directions of the Medical

Council of India which regulate the actual courses of study

after the students are admitted into the institutions and

cannot cover the situation prior to their admission, meaning

thereby, pre-admission stage for students seeking entry to

the institution of higher education cannot be countenanced.

The reason is obvious. Once it is held that the Medical

Council of India exercising its statutory functions and

powers under the Indian Medical Council Act, 1956 which

squarely falls within Entry 66 of List I can lay down the

eligibility and basic qualifications of students entitled to

be admitted to such postgraduate courses of study, their

eligibility qualification would naturally project a

consideration which is prior to their actual entry in the

institutions as students for being imparted higher

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education. That would obviously be a pre-admission stage.

Therefore, the phrase determination of standards in

institutions does not necessarily mean controlling

standards of education only after the stage of entry of

students in these institutions and necessarily not prior to

the entry point. However, as seen earlier, the real

question is whether determination of standards in

institutions would go beyond the stage of controlling the

eligibility and basic qualification of students for taking

up such courses and would also cover the further question of

short-listing of such eligible students by those running the

institutions in the States. For every academic year, there

will be limited number of seats in postgraduate medical

courses vis-a-vis a larger number of eligible candidates as

per guidelines laid down by the Medical Council of India.

Short-listing of such candidates, therefore, has to be

resorted to. This exercise will depend upon various

imponderables like i) limited number of seats for admission

in a given course vis-a-vis larger number of eligible

candidates seeking admissions and the question of fixation

of their inter se merits so as to lay down rational criteria

for selecting better candidates as compared to candidates

with lesser degree of competence for entry in such courses;

ii) Whether at a given point of time there are adequate

chances and scope for SC,ST and OBC candidates who can

equally be eligible for pursuing of such courses but who on

account of their social or economic backwardness may lag

behind in competition with other general category candidates

who are equally eligible for staking their claims for such

limited number of seats for higher educational studies, iii)

availability of limited infrastructural facilities for

training in institutions for higher medical education in the

State or in the colleges concerned. All these exigencies of

the situations may require State authorities, either

legislatively or by exercise of executive powers, to adopt

rational standards or methods for short-listing eligible

candidates for being admitted to such medical courses from

year to year also keeping in view the requirement of Article

15(4) of the Constitution of India. While dealing with

Entry 25 of List III it has also to be kept in view that the

word education is of wide import. It would necessarily

have in its fold (i) the taught, (ii) the teacher, (iii) the

text and also (iv) training as practical training is

required to be imparted to students pursuing the course of

postgraduate medical education. Who is to be the taught is

determined by Medical Council of India by prescribing the

basic qualifications for admission of the students.

Adequate number of teachers keeping in view teacher taught

ratio is also relevant. Prescribing appropriate courses for

study i.e. curricula is also covered by the term

education. Training to be imparted to the students has a

direct nexus with infrastructural facilities like number of

beds of patients to be attended to by postgraduate medical

students, providing appropriate infrastructure for surgical

training etc. also would form part of education. Role of

Medical Council of India is exclusive in the field of laying

down of basic qualifications of the taught and also the

requirement of qualified teachers, their numbers and

qualifications, prescribing text and requisite training to

be imparted to students undertaking postgraduate medical

courses. All these provisions quite clearly fall within the

domain of Medical Council of Indias jurisdiction. However,

the only field left open by the Parliament while enacting

the Indian Medical Council Act, 1956 under Entry 66 of List

III of Schedule VII is the solitary exercise of short-

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listing of eligible taught for being admitted to such

courses. That field can validly be operated upon by the

State authorities so long as Parliament, in its wisdom, does

not step in to block even that solitary field otherwise

remaining open for State authorities to function in that

limited sphere. Infrastructure facilities, therefore, for

giving such practical training to the taught also would be

an important part of medical education. It is of course

true that not only the eligibility of students for admission

to medical courses but also the quality of students seeking

to get medical education especially postgraduate medical

education with a view to turning out efficient medical

practitioners for serving the suffering humanity would all

be covered by the term education. So far as the quality

of admitting students to the courses of higher medical

education i.e. postgraduate medical courses is concerned,

the admission of students may get sub-divided into two

parts; i) basic eligibility or qualification for being

permitted to enter the arena of contest for occupying the

limited number of seats available for pursuing such

education; and ii) the quality of such eligible candidates

for being admitted to such courses. As we have seen

earlier, the first part of exercise for admission can be

covered by the sweep of the parliamentary legislation i.e.

the Indian Medical Council Act, 1956 enabling the delegate

of the Parliament namely, Medical Council of India to lay

down proper criteria for that purpose as per regulations

framed by it under Section 33 of the Indian Medical Council

Act. This aspect is clearly covered by Entry 66 of List I

but so far as the second part of admissions of eligible

students is concerned, it clearly remains in the domain of

Entry 25 of List III and it has nothing to do with Entry 66

of List I and as this field is wide open till the Parliament

covers it by any legislation under Entry 25 of List III, the

State can certainly issue executive orders and instructions

or even pass appropriate legislations for controlling and

short-listing the admissions of eligible candidates to such

higher postgraduate medical courses in their institutions or

other institutions imparting such medical education in the

States concerned. A three Judge bench of this Court in Ajay

Kumar Singh & Ors. vs. State of Bihar & Ors., 1994(4) SCC

401, has taken the same view on these entries which commands

acceptance. Jeevan Reddy, J., speaking for the three Judge

bench placing reliance on an earlier three Judge bench

judgment of this Court in State of M.P. vs. Nivedita Jain,

1981(4) SCC 296, and agreeing with the view expressed

therein observed in para 22 of the Report as under : The

power to regulate admission to the courses of study in

medicine is traceable to Entry 25 in List III. (Entry 11 in

List II, it may be remembered, was deleted by the 42nd

Amendment to the Constitution and Entry 25 of List III

substituted). The States, which establish and maintain

these institutions have the power to regulate all aspects

and affairs of the institutions except to the extent

provided for by Entries 63 to 66 of List I. Shri Salve

contended that the determination and coordination of

standards of higher education in Entry 66 of List I takes in

all incidental or ancillary matters, that Regulation of

admission to courses of higher education is a matter

incidental to the determination of standards and if so, the

said subject- matter falls outside the field reserved to the

States. He submits that by virtue of Entry 66 List I, which

overrides Entry 25 of List III, the States are denuded of

all and every power to determine and coordinate the

standards of higher education, which must necessarily take

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in regulating the admission to these courses. Even if the

Act made by parliament does not regulate the admission to

these courses, the States have no power to provide for the

same for the reason that the said subject-matter falls

outside their purview. Accordingly, it must be held, says

Shri Salve, that the provision made by the State Government

reserving certain percentage of seats under Article 15(4) is

wholly incompetent and outside the purview of the field

reserved to the States under the Constitution. We cannot

agree. While Regulation of admission to these medical

courses may be incidental to the power under Entry 66 List

I, it is integral to the power contained in Entry 25 List

III. The State which has established and is maintaining

these institutions out of public funds must be held to

possess the power to regulate the admission policy

consistent with Article 14. Such power is an integral

component of the power to maintain and administer these

institutions. Be that as it may, since we have held,

agreeing with the holding in Nivedita Jain that Entry 66 in

List I does not take in the selection of candidates or

regulation of admission to institutions of higher education,

the argument of Shri Salve becomes out of place. The States

must be held perfectly competent to provide for such

reservations.

It is also pertinent to note that decision of this

Court in Kumari Nivedita Jain (supra) is approved by a

Constitution bench of nine Judges of this court in Indra

Sawhney vs. Union of India, 1992 Supp. 3 SCC 217 at page

751, to which I will make a detailed reference later on.

II. Role of the Medical Council of India: As noted

earlier, the Indian Medical Council Act, 1956 was enacted by

the Union Parliament in exercise of its powers under Entry

66 of List I of the Seventh Schedule of the Constitution.

The statement of objects and reasons of the said Act read as

under : The objects of this Bill are to amend the Indian

Medical Council Act, 1933 (Act XXVII of 1933) - (a) to give

representation to licentiate members of the medical

profession, a large number of whom are still practising in

the country; (b) to provide for the registration of the

names of citizens of India who have obtained foreign medical

qualifications which are not at present recognised under the

existing Act; (c) to provide for the temporary recognition

of medical qualifications granted by medical institutions in

countries outside India with which no scheme of reciprocity

exists in cases where the medical practitioners concerned

are attached for the time being to any medical institution

in India for the purpose of teaching or research or for any

charitable object; (d) to provide for the formation of a

Committee of Postgraduate Medical Education for the purpose

of assisting the Medical Council of India to prescribe

standards of postgraduate medical education for the guidance

of Universities and to advise Universities in the matter of

securing uniform standards for postgraduate medical

education throughout India; (e) to provide for the

maintenance of an all-India register by the Medical Council

of India, which will contain the names of all the medical

practitioners possessing recognised medical qualifications.

Amongst others, the object and reason no.(d) clearly

indicated that the Act was to provide for the formation of a

Committee of Postgraduate Medical Education for the purpose

of assisting the Medical Council of India to prescribe

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standards of postgraduate medical education for the guidance

of Universities. This necessarily meant conferring power on

Medical Council of India to be the approving body for the

universities for enabling them to prescribe standards of

postgraduate medical education. Naturally that referred to

the courses of study to be prescribed and the types of

practical training to be imparted to the admitted students

for such courses. We may now refer to the relevant

statutory provisions of the Act. Section 10-A empowers the

Central Government to give clearance for establishing

medical colleges at given centres and the statutory

requirements for establishing such colleges. It is the

Medical Council of India which has to recommend in

connection with such proposed scheme for establishing

medical colleges. Sub-section (7) of Section 10-A lays down

the relevant considerations to be kept in view by the

Medical Council of India while making such recommendations

in connection with any scheme proposing to establish a

medical college. They obviously refer to the types of

education to be imparted to admitted students and the basic

requirement of infrastructure for imparting such education

which only would enable the proposed college to be

established. None of these requirements has anything to do

with the controlling of admissions out of qualified and

eligible students who can take such education. Section 11

deals with medical qualifications granted by any University

or medical institution which can be recognised as medical

qualifications for the purpose of the Act. Meaning thereby,

only such qualified persons can be registered as medical

practitioners under the Act. None of the other provisions

of the Act deal with the topic of short-listing of eligible

and otherwise qualified candidates for being admitted to

medical courses either at MBBS level or even at post-

graduate level. As we are concerned with minimum standards

for medical education at postgraduate level, Section 20 of

the Act becomes relevant. It reads as under : 20.

Postgraduate Medical Education Committee for assisting

Council in matters relating to postgraduate medical

education - (1) The Council may prescribe standards of

postgraduate medical education for the guidance of

Universities, and may advise Universities in the matter of

securing uniform standards for postgraduate medical

education throughout India, and for this purpose the Central

Government may constitute from among the members of the

Council a Postgraduate Medical Education Committee

(hereinafter referred to as the Postgraduate Committee).

(2) The Postgraduate Committee shall consist of nine members

all of whom shall be, persons possessing postgraduate

medical qualifications and experience of teaching or

examining postgraduate students of medicine. (3) Six of the

members of the Postgraduate Committee shall be nominated by

the Central Government and the remaining three members shall

be elected by the Council from amongst its members. (4) For

the purpose of considering Postgraduate studies in a

subject, the Postgraduate Committee may co-opt, as and when

necessary, one or more members qualified to assist it in

that subject. (5) The views and recommendations of the

Postgraduate Committee on all matters shall be placed before

the Council; and if the Council does not agree with the

views expressed or the recommendations made by the

Postgraduate Committee on any matter, the Council shall

forward them together with its observations to the Central

Government for decision.

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Sub-section (1) of Section 20 while dealing with

prescription of standards of postgraduate medical education

by the Council for the guidance of Universities does not by

itself touch upon the topic of controlling of admission of

eligible medical graduates or short-listing them according

to the exigencies of the situations at a given point of time

by those running medical institutions imparting postgraduate

medical courses in the colleges. Standards of postgraduate

medical education as mentioned in sub-section (1) of Section

20 therefore, would include guidance regarding the minimum

qualifications or eligibility criteria for such students for

admission and after they are admitted having undergone the

process of short-listing at the hands of the State

authorities or authorities running the institutions, how

they are to be trained and educated in such courses, how

practical training has to be given to them and what would be

the course of study, the syllabi and the types of

examination which they have to undertake before they can be

said to have successfully completed postgraduate medical

education in the concerned States. But having seen all

these it has to be kept in view that all that Sub-section

(1) of Section 20 enables the Medical Council of India is to

merely give guidance to the Universities. What is stated to

be guidance can never refer to the quality of a candidate

who is otherwise eligible for admission. None of the

remaining provisions up to Section 32 deal with the question

of controlling of admission by process of short-listing from

amongst eligible and duly qualified candidates seeking

admission to postgraduate medical courses. We then go to

Section 33 which confers power on the Medical Council of

India to make regulations. It provides that the Council

may, with the previous sanction of the Central Government,

make regulations generally to carry out the purposes of this

Act. Therefore, this general power to make regulations has

to be with reference to any of the statutory purposes

indicated in any other provisions of the Act. As none of

the provisions in the Act enables the Medical Council of

India to regulate the admission of eligible candidates to

the available seats for pursuing higher medical studies in

institutions, the general power to make regulations cannot

cover such a topic. So far as the express topics enumerated

in Section 33 on which regulations can be framed are

concerned, the relevant topics for our purpose are found in

clauses (fc) and (j). So far as clause (fc) is concerned,

it deals with the criteria for identifying a student who

has been granted a medical qualification referred to in the

Explanation to sub-section (3) of Section 10B. When we

turn to Section 10B, we find that it deals with those

students who are admitted on the basis of the increase in

its admission capacity without previous permission of the

Central Government. Any medical qualification obtained by

such student will not enable him or her to be treated as

duly medically qualified. The medical qualification is

obviously obtained by the student who has successfully

completed his course of study and obtained the requisite

degree. It is the obtaining of such requisite medical

degree and qualification that entitles him to get enrolled

as per Section 15 on any State Medical Register so that he

can act as a Registered Medical Practitioner. That

obviously has nothing to do with the admission of students

desirous of obtaining medical degrees after undergoing

requisite educational training at the institutions.

Therefore, no regulation framed under Section 33(fc) can

cover the topic of short-listing of eligible candidates for

admission. Then remains in the filed clause (j) which

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provides as under : [(j)the courses and period of study

and of practical training to be undertaken, the subjects of

examination and the standards of proficiency therein to be

obtained, in Universities or medical institutions for grant

of recognised medical qualifications; A mere look at the

said provision shows that regulations under this provision

can be framed by the Medical Council of India for laying

down the courses and period of study and of practical

training to be undertaken, the subjects of examination and

the standard of proficiency therein to be obtained by the

admitted students for obtaining recognised medical

qualifications. They all deal with post- admission

requirements of eligible students in the medical courses

concerned. That has nothing to do with pre-entry stage of

such students eligible for admission. Consequently, any

regulation framed by the Medical Council of India under

Section 33 which seeks to give any guidelines in connection

with the method of admission of such eligible students to

medical courses would obviously remain in the realm of a

mere advise or guidance and can obviously therefore, not

have any binding force qua admitting authorities. It,

therefore, must be held that once the Medical Council of

India has laid down basic requirements of qualifications or

eligibility criteria for a student who has passed his MBBS

examination for being admitted to postgraduate courses for

higher medical education in institutions and once these

basic minimum requirements are complied with by eligible

students seeking such admissions the role of Medical Council

of India comes to an end. As seen earlier, the question of

short-listing falls squarely in the domain of State

authorities as per entry 25 of List III till Parliament

steps in to cover this field. We may now briefly deal with

decisions of this Court rendered from time to time in

connection with this question. A three Judge bench of this

Court in D.N. Chanchala vs. State of Mysore & Ors.etc.,

1971 Supp. SCR 608, speaking through Shelat, J., emphasised

the necessity for a screening test and short-listing of

eligible candidates for being admitted to medical courses in

view of the fact that claimants are many and seats are less.

Dealing with three universities set up in the territories of

the then State of Mysore catering to medical education, the

following relevant observations were made at page 619 of the

Report : The three universities were set up in three

different places presumably for the purpose of catering to

the educational and academic needs of those areas.

Obviously one university for the whole of the State could

neither have been adequate nor feasible to satisfy those

needs. Since it would not be possible to admit all

candidates in the medical colleges run by the Government,

some basis for screening the candidates had to be set up.

There can be no manner of doubt, and it is now fairly well

settled, that the Government, as also other private

agencies, who found such centres for medical training, have

the right to frame rules for admission so long as those

rules are not inconsistent with the university statutes and

regulations and do not suffer from infirmities,

constitutional or otherwise. Similar observations were

made at page 628 of the Report :

On account of paucity of institutions imparting

training in technical studies and the increasing number of

candidates seeking admission therein, there is obviously the

need for classification to enable fair and equitable

distribution of available seats. The very decisions relied

on by counsel for the petitioner implicitly recognise the

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need for classification and the power of those who run such

institutions to lay down classification.

A three Judge bench of this Court in State of Madhya

Pradesh & Anr. vs. Kumari Nivedita Jain & Ors., (supra)

had to consider the legality of order passed by the State of

Madhya Pradesh completely relaxing the conditions relating

to the minimum qualifying marks for SC,ST candidates for

admission to medical courses of study on non- availability

of qualified candidates from these categories. Such an

exercise was held permissible under Articles 14 and 15 of

the Constitution of India. A.N. Sen, J., speaking for the

Court in this connection referred to Entry 25 of the

Concurrent List and also the constitutional scheme of Entry

66 of List I and held that: By virtue of the authority

conferred by the Medical Council Act, the Medical Council

may prescribe the eligibility of a candidate who may seek to

get admitted into a Medical College for obtaining recognised

medical qualifications. But as to how the selection has to

be made out of the eligible candidates for admission into

the Medical College necessarily depends on circumstances and

conditions prevailing in particular States and does not come

within the purview of the Council. Regulation I which lays

down the conditions or qualifications for admission into

medical course comes within the competence of the Council

under Section 33 of the Act and is mandatory, whereas

Regulation II which deals with the process or procedure for

selection from amongst eligible candidates for admission is

outside the authority of the Council under Section 33 of the

Act, and is merely in the nature of a recommendation and is

directory in nature. (paras 19 and 21) Entry 25 in List II

is wide enough to include within its ambit the question of

selection of candidates to Medical Colleges and there is

nothing in the Entries 63, 64 and 65 of List I to suggest to

the contrary. (para 22) As there is no legislation covering

the field of selection of candidates for admission to

Medical Colleges, the State Government would, undoubtedly,

be competent to pass executive orders in this regard under

Article 162. (para 24) Thus Regulation II of the Council

which is merely directory and in the nature of a

recommendation has no such statutory force as to render the

Order in question which contravenes the said Regulation

illegal, invalid and unconstitutional. The Order can

therefore be supported under Article 15(4). (paras 22 and

25) The State is entitled to make reservations for the

Scheduled Castes and Scheduled Tribes in the matter of

admission to medical and 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 and would benefit the candidates

belonging to these categories for whose benefit and welfare

the reservations have been made. In any particular

situation, taking into consideration the realities and

circumstances prevailing in the State it will be open to the

State to vary and modify the conditions regarding selection

for admission, if such modification or variation becomes

necessary for achieving the purpose for which reservation

has been made and if there be no law to the contrary. Note

(ii) of Rule 20 of the Rules for admission framed by the

State Government specifically empowers the Government to

grant such relaxation in the minimum qualifying marks to the

extent considered necessary. Such relaxation neither can be

said to be unreasonable, nor constitutes violation of

Article 15(1) and (2) or Article 14 of the Constitution.

The impugned order does not affect any relaxation in the

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standard of medical education or curriculum of studies in

Medical Colleges for those candidates after their admission

to the College and the standard of examination and the

curriculum remains the same for all. (paras 26 and 27)

(Emphasis supplied)

The aforesaid observations of the court are well

sustained on the scheme of the relevant entries in VIIth

Schedule to which we have made a reference earlier. As

noticed herein before, this judgment of three member bench

is approved by the Constitution bench in its judgment in

Indra Sawhneys case (supra). It is of course true that

these observations are made with reference to admission to

MBBS course and not to postgraduate medical courses. But on

the constitutional scheme of the relevant entries, the very

same result can follow while regulating admissions to

postgraduate medical courses also. Before parting with

discussion on the topic regarding role of Medical Council of

India, we may also usefully refer to the observations of

Jeevan Reddy, J., in the case of Ajay Kumar Singh & Ors.

vs. State of Bihar & Ors., (supra). Jeevan Reddy, J.,

speaking for the three Judge Bench in para 18 of the Report

on the review and relevant provisions of the Indian Medical

Council Act has made the following pertinent observations in

the said para of the Report at page 415 : A review of the

provisions of the Act clearly shows that among other things,

the Act is concerned with the determination and coordination

of standards of education and training in medical

institutions. Sections 16, 17, 18 and 19 all speak of the

courses of study and examinations to be undergone to obtain

the recognised medical qualification. They do not speak of

admission to such courses. Section 19-A expressly empowers

the council to prescribe the minimum standards of medical

education required for granting undergraduate medical

qualification. So does Section 20 empower the council to

prescribe standards of postgraduate medical education but

for the guidance of universities only. It further says

that the council may also advise universities in the matter

of securing uniform standards for postgraduate medical

education throughout India. (The distinction between the

language of Section 19-A and Section 20 is also a relevant

factor, as would be explained later.) Clause (j) of Section

33 particularises the subjects with respect to which

Regulations can be made by the council. It speaks of the

courses and period of study and the practical training to be

undergone by the students, the subjects of examination which

they must pass and the standards of proficiency they must

attain to obtain the recognised medical qualifications but

it does not speak of admission to such courses of study.

Indeed, none of the sections aforementioned empower the

council to regulate or prescribe qualifications or

conditions for admission to such courses of study. No other

provision in the Act does. It is thus clear that the Act

does not purport to deal with, regulate or provide for

admission to graduate or postgraduate medical courses.

Indeed, insofar as postgraduate courses are concerned, the

power of the Indian Medical Council to prescribe the

minimum standards of medical education is only advisory in

nature and not of a binding character. In such a situation,

it would be rather curious to say that the Regulations made

under the Act are binding upon them. The Regulations made

under the Act cannot also provide for or regulate admission

to postgraduate courses in any event.

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In our view, these observations are clearly borne out

from the statutory scheme of the Indian Medical Council Act,

as seen earlier.

III. Role of States for short-listing of admissions

to postgraduate courses:

As seen earlier, so far as the field consisting of the

short- listing of admission out of eligible and duly

qualified medical graduates for being admitted to

postgraduate medical courses in institutions is concerned,

as the Union Parliament has not said anything about the

same, the field is wide open for the State authorities to

regulate such admissions by short-listing the available

candidates keeping in view the concept of reservation of

seats as permitted by Article 15(4) of the Constitution. In

the case of R. Chitralekha & Anr. vs. State of Mysore &

Ors., 1964 (6) SCR 368, a Constitution bench of this Court

while dealing with Entry 66 of List I and Article 15(4) of

the Constitution of India had to consider the question

whether the State Government could prescribe the criteria

for selection of students having minimum qualifications laid

down by the university for admission to medical courses and

whether it would affect the central legislation enacted

under Entry 66 of List I of the Constitution? Answering

this question in favour of the State authorities, it was

observed at page 379 of the Report by Subba Rao, J.,

speaking on behalf of the Constitution bench as under :

If the impact of the State law providing for such

standards on entry 66 of List I is so heavy or devastating

as to wipe out or appreciably abridge the central field, it

may be struck down. But that is a question of fact to be

ascertained in each case. It is not possible to hold that

if a State legislature made a law prescribing a higher

percentage of marks for extra-curricular activities in the

matter of admission to colleges, it would be directly

encroaching on the field covered by entry 66 of List I of

the Seventh Schedule to the Constitution. If so, it is not

disputed that the State Government would be within its

rights to prescribe qualifications for admission to colleges

so long as its action does not contravene any other law. It

is then said that the Mysore University Act conferred power

to prescribe rules for admission to Colleges on the

University and the Government cannot exercise that power.

It is true that under s.23 of the Mysore University Act,

1956, the Academic Council shall have the power to prescribe

the conditions for admission of students to the University

and, in exercise of its power, it has prescribed the

percentage of marks which a student shall obtain for getting

admission in medical or engineering colleges. The orders of

the Government do not contravene the minimum qualifications

prescribed by the University; what the Government did was

to appoint a selection committee and prescribe rules for

selection of students who have the minimum qualifications

prescribed by the University. The Government runs most of

the medical and engineering colleges. Excluding the State

aided colleges for a moment, the position is as follows :

The Colleges run by the Government, having regard to

financial commitments and other relevant considerations, can

only admit a specific number of students to the said

Colleges. They cannot obviously admit all the applicants

who have secured the marks prescribed by the University. It

has necessarily to screen the applicants on some reasonable

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basis. The aforesaid orders of the Government only

prescribed criteria for making admissions to Colleges from

among students who secured the minimum qualifying marks

prescribed by the University. Once it is conceded, and it

is not disputed before us, that the State Government can run

medical and engineering colleges, it cannot be denied the

power to admit such qualified students as pass the

reasonable tests laid down by it. This is a power which

every private owner of a College will have, and the

Government which runs its own Colleges cannot be denied that

power.

At page 381 of the same Report, the following

observations are made by the Constitution Bench, speaking

through Subba Rao, J. :

We, therefore, hold that the Government has power to

prescribe a machinery and also the criteria for admission of

qualified students to medical and engineering colleges run

by the Government and, with the consent of the management of

the Government aided colleges, to the said colleges also.

Another decision of the Constitution bench of this

Court was rendered in the case of Chitra Ghosh & Anr. vs.

Union of India & Ors., 1970 (1) SCR 413. Grover, J.,

speaking for the Constitution bench observed at page 418 as

under : It is the Central Government which bears the

financial burden of running the medical college. It is for

it to lay down the criteria for eligibility. From the very

nature of things it is not possible to throw the admission

open to students from all over the country. The Government

cannot be denied the right to decide from what sources the

admission will be made. That essentially is a question of

policy and depends inter-alia on an overall assessment and

survey of the requirements of residents of particular

territories and other categories of persons for whom it is

essential to provide facilities for medical education. If

the sources are properly classified whether on territorial,

geographical or other reasonable basis it is not for the

courts to interfere with the manner and method of making the

classification.

At page 419 of the Report it has been further stated

as under : The next question that has to be determined is

whether the differentia on which classification has been

made has rational relation with the object to be achieved.

The main purpose of admission to a medical college is to

impart education in the theory and practice of medicine. As

noticed before the sources from which students have to be

drawn are primarily determined by the authorities who

maintain and run the institution, e.g., the Central

Government in the present case. In Minor P.Rajendran v.

State of Madras it has been stated that the object of

selection for admission is to secure the best possible

material. This can surely be achieved by making proper

rules in the matter of selection but there can be no doubt

that such selection has to be confined to the sources that

are intended to supply the material. If the sources have

been classified in the manner done in the present case it is

difficult to see how that classification has no rational

nexus with the object of imparting medical education and

also of selection for the purpose.

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In the case of State of Andhra Pradesh & Anr. vs.

Lavu Narendranath & Ors.etc., 1971(1) SCC 607, a four Judge

bench of this Court had to consider whether the entrance

test prescribed by the Government for short-listing eligible

candidates for being admitted to medical courses in colleges

was legally permissible or not. Upholding the power of the

State Government on the anvil of the Constitution, Mitter,

J., speaking on behalf of the four Judge bench held that :

Merely because the University had made regulations

regarding the admission of students to its degree courses,

it did not mean that any one who had passed the qualifying

examination such as the P.U.C. or H.S.C. was ipso facto to

be entitled to admission to such courses of study. If the

number of candidates applying for such admission far exceeds

the number of seats available the University can have to

make its choice out of the applicants to find out who should

be admitted and if instead of judging the candidates by the

number of marks obtained by them in the qualifying

examination the University thinks fit to prescribe another

test for admission no objection can be taken thereto. What

the University can do in the matter of admissions to the

degree courses can certainly be done by the Government in

the matter of admission to the M.B.B.S. course. 9. In our

view the test prescribed by the Government in no way

militates against the power of Parliament under Entry 66 of

List I of the Seventh Schedule to the Constitution. The

said entry provides :

Co-ordination and determination of standards in

institutions for higher education or research and scientific

and technical institutions.

The above entry gives Parliament power to make laws

for laying down how standards in an institution for higher

education are to be determined and how they can be co-

ordinated. It has no relation to a test prescribed by a

Government or by a University for selection of a number of

students from out of a large number applying for admission

to a particular course of study even if it be for higher

education in any particular subject.

Similar observations were found in para 15 of the

Report, wherein it was observed that : .The University

Act, as pointed out, merely prescribed a minimum

qualification for entry into the higher courses of study.

There was no regulation to the effect that admission to

higher course of study was guaranteed by the securing of

eligibility. The Executive have a power to make any

regulation which would have the effect of a law so long as

it does not contravene any legislation already covering the

field and the Government order in this case in no way

affected the rights of candidates with regard to eligibility

for admission : the test prescribed was a further hurdle by

way of competition when mere eligibility could not be made

the determining factor.

The aforesaid observations of the four Judge bench, in

our view, correctly bring out the permissible scheme of

short-listing of eligible candidates in the light of the

relevant provisions with which we are concerned. In the

case of Dr. Ambesh Kumar vs. Principal, L.L.R.M.Medical

College, Meerut & Ors., 1986 (Supp) SCC 543, a two Judge

bench of this court had to consider the question whether out

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of the eligible candidates qualified for being considered

for admission to medical education imparted in medical

colleges of the State, looking to the limited number of

seats available, the State could resort to the process of

weeding out by laying down further criteria for

short-listing such candidates. Upholding such an exercise

undertaken by the State in the light of the relevant

provisions of the Constitution, B.C.Ray, J., speaking for

the court, made the following observations at pages 544 and

545 of the Report as under : The State Government can in

exercise of its executive power under Article 162 make an

order relating to matters referred to in Entry 25 of the

Concurrent List in the absence of any law made by the State

Legislature. The impugned order made by the State

Government pursuant to its executive powers was valid and it

cannot be assailed on the ground that it is beyond the

competence of the State Government to make such order

provided it does not encroach upon or infringe the power of

the Central Government as well as the Parliament provided in

Entry 66 of List I. The order in question merely specified

a further eligibility qualification for being considered for

selection for admission to the postgraduate courses (degree

and diploma) in the Medical Colleges in the State in

accordance with the criteria laid down by Indian Medical

Council. The number of seats for admission to various

postgraduate courses both degree and diploma in Medical

Colleges is limited and a large number of candidates apply

for admission to these courses of study. In such

circumstances the impugned order cannot be said to be in

conflict with or repugnant to or encroach upon the

Regulations framed under the provisions of Section 33 of the

Indian Medical Council Act. On the other hand by laying

down a further qualification of eligibility it promotes and

furthers the determination of standards in institutions for

higher education.

In this connection, we may also refer to a later

Constitution bench Judgment of this Court in Indra Sawhney &

Ors. vs. Union of India & Ors., (supra). As noted

earlier, judgment of this Court in Kumari Nivedita Jains

case (supra) was approved therein. Jeevan Reddy, J.,

speaking on behalf of the Constitution bench, at page 751 of

the Report in para 837 has referred to, with approval, the

observations of this Court in State of Madhya Pradesh vs.

Kumari Nivedita Jain, (Supra) to the effect that admission

to medical courses was regulated by an entrance test for

general candidates, the minimum qualifying marks were 50% in

the aggregate and 33% in each subject. For SC/ST

candidates, however, it was 40% and 30% respectively. The

said deviation was upheld in Kumari Nivedita Jains case

(supra) and the same was also approved by the Constitution

Bench in the aforesaid decision. In this connection, we may

also usefully refer to the relevant observations in the case

of State of Madhya Pradesh & Anr. vs. Kumari Nivedita Jain

& Ors. (supra) which got imprimatur of the Constitution

bench of this court in Indra Sawhneys case (supra). At

page 751 of the Report in Indra Sawhneys case (supra), the

following pertinent observations are found in the majority

judgment wherein Jeevan Reddy, J., in paragraph 837 of the

Report observed as under :

Having said this, we must append a note of

clarification. In some cases arising under Article 15, this

Court has upheld the removal of minimum qualifying marks, in

the case of Scheduled Caste/Scheduled Tribe candidates, in

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the matter of admission to medical courses. For example, in

State of M.P. v. Nivedita Jain admission to medical course

was regulated by an entrance test (called Pre-Medical Test).

For general candidates, the minimum qualifying marks were

50% in the aggregate and 33% in each subject. For Scheduled

Caste/Scheduled Tribe candidates, however, it was 40% and

30% respectively. On finding that Scheduled Caste/Scheduled

Tribe candidates equal to the number of the seats reserved

for them did not qualify on the above standard, the

Government did away with the said minimum standard

altogether. The Governments action was challenged in this

Court but was upheld. Since it was a case under Article 15,

Article 335 had no relevance and was not applied. But in

the case of Article 16, Article 335 would be relevant and

any order on the lines of the order of the Government of

Madhya Pradesh (in Nivedita Jain) would not be permissible,

being inconsistent with the efficiency of administration.

To wit, in the matter of appointment of Medical Officers,

the Government or the Public Service Commission cannot say

that there shall be no minimum qualifying marks for

Scheduled Caste/Scheduled Tribe candidates, while

prescribing a minimum for others. It may be permissible for

the Government to prescribe a reasonably lower standard for

Scheduled Castes/Scheduled Tribes/Backward Classes -

consistent with the requirements of efficiency of

administration - it would not be permissible not to

prescribe any such minimum standard at all. While

prescribing the lower minimum standard for reserved

category, the nature of duties attached to the post and the

interest of the general public should also be kept in mind.

In para 20 of the Report in the case of State of

Madhya Pradesh & Anr. vs. Kumari Nivedita Jain & Ors.

(supra) the following pertinent observations are found :

Undoubtedly, under Section 33 of the Act, the Council is

empowered to make regulations with the previous sanction of

the Central Government generally to carry out the purposes

of the Act and such regulations may also provide for any of

the matters mentioned in Section 33 of the Act. We have

earlier indicated what are the purposes of this Act.

Sub-sections (j), (k), (l) and (m) of the Act which we have

earlier set out clearly indicate that they have no

application to the process of selection of a student out of

the eligible candidates for admission into the medical

course. Sub- sections (j), (k) and (l) relate to

post-admission stages and the period of study after

admission in Medical Colleges. Sub-section (m) of Section

33 relates to a post-degree stage. Sub-section (n) of

Section 33 which has also been quoted earlier is also of no

assistance as the Act is not concerned with the question of

selection of students out of the eligible candidates for

admission into Medical Colleges. It appears to us that the

observations of this Court in the case of Arti Sapru v.

State of Jammu & Kashmir which we have earlier quoted and

which were relied on by Mr. Phadke, were made on such

consideration, though the question was not very properly

finally decided in the absence of the Council.

The aforesaid observations are also well borne out

from the scheme of the Indian Medical Council Act to which

we have made a detailed reference earlier. But even apart

from that, once these observations have been approved by a

Constitution Bench of nine learned Judges of this Court,

there is no scope for any further debate on this aspect in

the present proceedings.

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We may now refer to a two Judge Bench decision of this

Court in Dr. Sadhna Devi & Ors. vs. State o f U.P. &

Ors., 1997(3) SCC 90. The court was concerned with the

short-listing of eligible candidates who have got basic

qualification for admission to postgraduate medical courses.

Reservation of seats for SC and ST candidates in

postgraduate courses was not challenged but providing zero

percent marks for them for passing the entrance examination

for admission to postgraduate course was questioned before

the Bench. It was held that once minimum qualifying marks

for passing the entrance examination for admission to

postgraduate courses was a pre- requisite, in the absence of

prescription of any minimum qualifying marks for reserved

category of candidates, admitting such students who did not

get any marks at the entrance test amounted to sacrificing

merit and could not be countenanced. In para 21 of the

Report, the following observations are made: In our view,

the Government having laid down a system for holding

admission tests, is not entitled to do away with the

requirement of obtaining the minimum qualifying marks for

the special category candidates. It is open to the

Government to admit candidates belonging to the special

categories even in a case where they obtain lesser marks

than the general candidates provided they have got the

minimum qualifying marks to fill up the reserved quota of

seats for them.

A cursory reading of these observations seems to

indicate that once the minimum qualifying marks are

prescribed for otherwise eligible candidates for

short-listing them for admission to postgraduate courses,

minimum qualifying marks prescribed for general category

candidates and reserved category candidates must be uniform.

But then follows para 22 which relies on the decision of

this court in State of Madhya Pradesh vs. Kumari Nivedita

Jain (supra) wherein prescription of lesser minimum

qualifying marks in the entrance test for SC,ST and Other

Backward Class candidates as compared to the minimum

qualifying marks for general category candidates was

approved. Even in earlier para 18 it is observed that if in

the entrance test special category candidates obtain lesser

marks than general category candidates even then they will

be eligible for admission within their reserved quota.

These observations indicate that for reserved category of

candidates there can be separate minimum qualifying marks.

Thus, on a conjoint reading of observations in paras 18, 21

and 22 of the Report it has to be held that the ratio of the

decision in Sadhna Devis case (supra) is that even for

reserved category candidates there should be some minimum

qualifying marks if not the same as prescribed as bench

marks for general category candidates. Thus, there cannot

be any zero qualifying marks for reserved category

candidates in the entrance test for admission to

postgraduate courses. Hence, this judgment cannot be taken

to have laid down that there cannot be lesser qualifying

marks for reserved category candidates as compared to the

general category candidates who are otherwise eligible and

qualified for being considered for admission to postgraduate

medical courses. That takes us to the consideration of a

three Judge Bench decision of this Court in Postgraduate

Institute of Medical Education & Research, Chandigarh &

Ors., vs. K.L. Narasimhan & Anr., 1997 (6) SCC 283.

Ramaswamy, J., speaking for the Bench had mainly to consider

two questions; 1) whether there can be reservation under

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Articles 15(4) and 16(4) of the Constitution in connection

with only one post in a discipline; and 2) whether

reservation of seats in postgraduate courses was permissible

as per Articles 14, 15 and 16 of the Constitution. Both the

aforesaid questions were answered in the affirmative in

favour of the schemes of reservations. So far as the

question of reservation of seats when there is only one post

in the discipline is concerned, decision rendered thereon by

the three Judge Bench is expressly overruled by a

Constitution Bench judgment of this Court in Postgraduate

Institute of Medical Education & Research, Chandigarh vs.

Faculty Association & Ors., 1998(4) SCC 1. However, so far

as the second question is concerned, in the aforesaid

judgment it was held that there can be reservation of seats

in postgraduate courses as per the mandate of Articles 15(4)

and 16(4). In the present proceedings, there is no dispute

on this score. Hence the said judgment on the second point

is not required to be reconsidered. However, certain

observations are found in para 21 of the report wherein

Ramaswamy, J., has observed that diluting of minimum

qualifying marks in an entrance test for entry into

postgraduate courses for reserved category of candidates

cannot be said to be unauthorised or illegal. It has been

observed that: Equally, a student, admitted on

reservation, is required to pass the same standard

prescribed for speciality or a superspeciality in a subject

or medical science or technology. In that behalf, no

relaxation is given nor sought by the candidates belonging

to reserved categories. What is sought is a facility or

opportunity for admission to the courses, Ph.D., speciality

or superspeciality or high technology by relaxation of a

lesser percentage of marks for initial admission than the

general candidates. For instance, if the general candidate

is required to get 80% as qualifying marks for admission

into speciality or superspeciality, the relaxation for

admission to the reserved candidates is of 10 marks less,

i.e., qualifying marks in his case would be 70%. A doctor

or a technologist has to pass the postgraduation or the

graduation with the same standard as had by general

candidate and has also to possess the same degree of

standard. However, with the facility of possessing even

lesser marks the reserved candidate gets admission.

Now, so far as these observations are concerned, as

the court was not called upon to consider the question

whether prescription of lesser qualifying marks for SC,ST

and other reserved category candidates for admission to

postgraduate or super speciality courses in medicine was

permissible, they are clearly obiter. So far as admission

to super speciality courses are concerned, in the present

reference we are not concerned with the said question,

hence, we need not say anything about the same. However, so

far as admission to postgraduate courses is concerned the

question of providing of lesser qualifying marks for

reserved category candidates for admission to these courses

directly arises for our consideration. Hence, the obiter

observations in the aforesaid case on this aspect do require

consideration for their acceptance or otherwise. As per the

scheme of Entry 66 of List I and Entry 25 of List III of the

Seventh Schedule of the Constitution of India, as discussed

earlier goes, it is not possible to countenance the

submission of Shri Salve, learned senior counsel for the

Medical Council of India and other counsel canvassing the

same view that the question of short-listing of eligible

candidates who were otherwise duly qualified for being

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admitted to postgraduate courses in Medicine is not within

the domain of State authorities especially in view of the

fact that the Parliament, in exercise of its legislative

powers under Entry 25 of List III, has still not spoken on

the point nor does the Indian Medical Council Act, 1956

enacted under Entry 66 of List I covers this question.

Hence, while providing for entrance test as an additional

requirement for eligible candidates for being short-listed

in connection with admission to smaller number of seats

available in postgraduate courses, it cannot be said that

the State authorities in exercise of their constitutional

right under Article 15(4) cannot give additional facilities

to reserved category of candidates vis-a-vis their

requirement of getting minimum qualifying marks at such

entrance tests so that seats reserved for them may not

remain unfilled and the reserved category of candidates do

get adequate opportunity to fill them up and get

postgraduate education on the seats reserved for them which

in their turn would not detract from the availability of

remaining seats for general category candidates. Thus, the

observations in para 21 of the aforesaid judgment that there

can be lesser qualifying marks for admission to postgraduate

courses for reserved category of candidates cannot be found

fault with. It is made clear that similar observations for

admission to super speciality courses and the relaxation of

minimum qualifying marks for candidates appearing at the

entrance test for such courses are not being approved by us

as we are not required to consider that aspect of the

matter, as noted earlier. As it will be presently shown,

once reservation of seats in postgraduate courses under

Article 15(4) is accepted then even lesser bench marks being

prescribed for reserved category of candidates in the common

entrance examination which they undertake along with general

category of candidates would in substance make no difference

so far as the un-reserved seats available to general

category of candidates are concerned. In a later three

Judge Bench Judgment of this Court in Medical Council of

India vs. State of Karnataka & Ors., 1998(6) SCC 131, it

was held that in the light of Sections 10-A, 10-B, 10-C,

19-A and 33(fa), (fb), (fc), (j), (k) and (l) of the Indian

Medical Council Act, 1956 fixation of admission capacity in

medical colleges/institutions is the exclusive function of

Medical Council of India and increase in number of

admissions can only be directed by the Central Govt. on the

recommendation of the Medical Council of India. This

function of the Medical Council of India was upheld in the

light of Entries 66 List I and 25 of List III thereof. Now

it becomes at once obvious that providing for number of

seats to be filled up by eligible candidates in any medical

course imparted by medical colleges or medical institutions

will have a direct nexus with coordination and

determination of standards in medical education, as larger

the seats in medical colleges wherein students can be

admitted to MBBS or even higher courses in medicine, larger

infrastructure would be required by way of beds and eligible

and efficient teachers and all other infrastructure for

imparting proper training to the admitted students. Once

this exercise is clearly within the domain of the Medical

Council of India in the light of the aforesaid statutory

provisions it becomes obvious that Entry 66 of List I of the

Seventh Schedule would hold the field and consequently

States will not be empowered under entry 25 of List III to

legislate on this topic as such an exercise would be subject

to legislation under Entry 66 of List I which would wholly

occupy the field. However, a moot question remains whether

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given the permissible intake capacity for admitting students

in any medical college as laid down by the Medical Council

of India can the available intake capacity of students be

regulated at the admission stage when the number of eligible

candidates aspiring to be admitted is larger than the

available intake capacity? This question will remain

outside the domain of the Medical Council of India under the

aforesaid Act. As we have discussed earlier, there being no

parliamentary legislation on this aspect even under entry 25

of List III of the Seventh Schedule, the short-listing of

eligible candidates for being admitted to the available

permitted intake capacity in medical colleges will obviously

remain in the domain of State legislature and State

executive on the combined reading of entry 25 of List III as

well as Article 162 of the Constitution of India. In view

of the aforesaid discussion, it therefore, becomes clear

that once seats in postgraduate medical courses are reserved

for SC, ST and OBC candidates as per Article 15(4) of the

Constitution the question as to how admission to limited

number of general seats and reserved seats are to be

regulated will remain in the domain of the State authorities

running these institutions. They can, therefore,

legitimately resort to the procedure of short-listing of

otherwise eligible candidates. While undertaking this

exercise of short-listing, the state authorities have to see

how best in a given academic year the reserved seats and

general category seats can be filled in by available and

eligible candidates. The question is while undertaking the

task of short-listing of available eligible candidates

vis-a-vis limited number of seats that may be available for

being filled in in a given academic year, uniform qualifying

bench marks for passing the entrance test should be

prescribed for both the general category candidates as well

as reserved category candidates or there can be lesser bench

marks for the latter category of students. If due to

non-availability of reserved category candidates who could

obtain minimum qualifying marks prescribed for all the

examinees whether there can be any legitimate dilution of

minimum qualifying marks for these reserved category of

question. candidates and if so, to what extent is the moot

In the case of M.R. Balaji & Ors. vs. State of Mysore,@@

IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII

1963 Supp.(1) SCR 439, a Constitution bench of this court

was concerned with the extent of reservation which could be

legally permissible under Article 15(4) of the Constitution

of India. Gajendragadkar, J., speaking for the Constitution

bench held that reservation of 68% seats in educational

institutions was inconsistent with the concept of special

provision authorised by Article 15(4). It was then observed

as under : Reservation should and must be adopted to

advance the prospects of weaker sections of society, but

while doing so, care should be taken not to exclude

admission to higher educational centres of deserving and

qualified candidates of other communities. Reservations

under Arts.15(4) and 16(4) must be within reasonable limits.

The interests of weaker sections of society, which are a

first charge on the States and the Centre, have to be

adjusted with the interests of the community as a whole.

Speaking generally and in a broad way, a special provision

should be less than 50%. The actual percentage must depend

upon the relevant prevailing circumstances in each case.

The object of Art.15(4) is to advance the interests of the

society as a whole by looking after the interests of the

weaker elements in society. If a provision under Art.15(4)

ignores the interests of society, that is clearly outside

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the scope of Art.15(4). It is extremely unreasonable to

assume that in enacting Art.15(4), Parliament intended to

provide that where the advancement of the backward classes

or the Scheduled Castes and Tribes were concerned, the

fundamental rights of the citizens constituting the rest of

the society were to be completely and absolutely ignored.

Considerations of national interest and the interests of the

community and the society as a whole have already to be kept

in mind.

Thus, even accepting that when seats are reserved for

SC and ST and Other Backward Classes for admission to be

given to such reserved category of eligible candidates in

postgraduate medical courses, the concession or facility

given to them cannot exceed 50% of the facility otherwise

available to members of the general public. Keeping the

aforesaid ratio of the Constitution Bench in view,

therefore, even proceeding on the assumption that 50% of the

available seats in postgraduate medical courses in a given

year may be reserved for SC,ST and OBCs, further concession

that may be given to them by State authorities by diluting

the minimum qualifying marks at the entrance test so that

seats reserved for them may not remain unfilled by the

reserved categories of persons for whom they are meant, the

dilution of such marks cannot exceed 50% of the general

standards of qualifying bench marks laid down for the

general categories of candidates. Otherwise even the said

dilution would become unreasonable and would be hit by

Articles 14 and 15(1) of the Constitution of India. In the

case of Minor P. Rajendran vs. State of Madras & Ors.,

1968 (2) SCR 786, another Constitution bench of this court

had to consider whether district-wise distribution of

reserved seats in medical courses for granting admission to

reserved category of candidates was violative of Article 15

(1) read with Article 14 of the Constitution of India.

Answering the question in the affirmative it was observed by

Wanchoo, J., speaking for the Constitution bench at pages

792 and 793 of the Report as under : The object of

selection can only be to secure the best possible material

for admission to colleges subject to the provision for

socially and educationally backward classes. Further

whether selection is from the socially and educationally

backward classes or from the general pool, the object of

selection must be to secure the best possible talent from

the two sources. If that is the object, it must necessarily

follow that that object would be defeated if seats are

allocated district by district. It cannot be and has not

been denied that the object of selection is to secure the

best possible talent from the two sources so that the

country may have the best possible doctors.

Relying on these observations of the Constitution

bench Shri P.P. Rao and Shri Chaudhary, learned senior

counsel appearing for the State of Madhya Pradesh, submitted

that when there is a pool of eligible candidates who have

all passed MBBS examination and are duly qualified and

eligible to pursue postgraduate medical courses of study,

and if in a given institution there are seats reserved for

them then the selection out of the reserved category

candidates for filling up of these reserved posts can be

done in a selective manner and that would permit reasonable

dilution of the uniform qualifying marks at the entrance

test as required to be obtained by the examinees concerned.

This submission is amply borne out from the aforesaid

observations of the Constitution bench decision of this

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court. However, a further question survives as to whether

in diluting the minimum qualifying marks for reserved

category of candidates who are otherwise eligible for being

admitted to postgraduate courses on the seats reserved for

them, whether Article 335 can get attracted. It is of

course true that candidates appointed or admitted to

postgraduate medical course have to work as registrars, some

posts of the registrars are fully paid posts while others

may be stipendary residents posts. However, it is not

possible to accept the contention of learned counsel for the

Special Leave Petitioners that admission to postgraduate

courses would amount to recruitment to any posts. Concept

of recruitment to posts is entirely different from the

concept of admission to the course of study which in its

turn may require the students concerned to take practical

training by functioning as registrars attached to wards

where patients are treated. Even though such students work

as registrars during the course of study as postgraduate

students, they essentially remain students and their working

as registrars would be a part of practical training. They

would all the same remain trainee registrars and not as

directly recruited registrars through any recruitment

process held by the Public Service Commission for filling up

full-fledged medical officers posts. They work as

registrars as a part of postgraduate educational training

only because they are admitted to the course of study as

postgraduate students in concerned disciplines. It is easy

to visualise that calling for applications from open market

by advertisement for appointment of full-fledged medical

officers to be recruited through the process of selection to

be undertaken by Public Service Commission or other

departmental selection committees will stand entirely on a

different footing as compared to the process of admitting

eligible students to postgraduate medical courses of

studies. Thus, keeping in view the nature of working as

trainee registrars by admitted students to postgraduate

medical courses it cannot be said that such admitted

students are recruited to any posts of registrars.

Consequently, Article 335 of the Constitution of India which

has relevance while considering reservation of posts under

Article 16(4) cannot have any direct impact on reservation

of seats in educational institutions as permitted under

Article 15(4). Learned counsel for the petitioners had

invited our attention to a decision of two Judge bench of

this Court in S. Vinod Kumar & Anr. vs. Union of India &

Ors., 1996(6) SCC 580, wherein it was held that while

providing for reservations to posts in the hierarchy by

invoking powers under Article 16(4), making a provision for

lower qualifying marks or lesser level of evaluation for

members of reserved category was impermissible on account of

Article 335 of the Constitution of India. The aforesaid

decision obviously cannot be pressed in service while

considering the question of giving facilities to reserved

category of candidates for being admitted to the seats

reserved for them in educational institutions wherein they

can undertake courses of studies for ultimately obtaining

postgraduate degrees in medicine. In the case of Ajay Kumar

Singh & Ors. vs. State of Bihar & Ors.(supra), this aspect

of the matter has been correctly highlighted by Jeevan

Reddy, J., speaking for the court in para 14 of the Report.

It has been held therein that : We see absolutely no

substance in the third submission of Shri Singh. The

argument taxes ones credulity. We are totally unable to

appreciate how can it be said that admission to postgraduate

medical course is a promotional post just because such

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candidate must necessarily pass MBBS examination before

becoming eligible for admission to postgraduate medical

course or for the reason that some stipend - it is

immaterial whether Rs.1000 or Rs.3000 p.m. - is paid to

postgraduate students. Admission to such course cannot be

equated to appointment to a post and certainly not to an

appointment by promotion. The argument is accordingly

rejected.

(Emphasis supplied)

It is obvious that only because a person who has

passed MBBS examination and is made eligible for admission

to postgraduate course is paid stipend during the course of

his studies at postgraduate level, he cannot be said to have

been appointed to the post of a registrar. It may be that

he has to work as a trainee registrar during the course of

his study to obtain practical training but that is a part of

the curriculum of studies and not because he is appointed to

the post of the registrar after undergoing selection process

whereunder a person from open market is recruited as a

medical officer and whose recruitment as medical officer

would be subject to rules and regulations and would not

terminate only because his training period is over. In fact

such a full-fledged medical officer has no training period.

He has if at all probation period. In case of a trainee

registrar who has to work as such during the course of his

studies as a postgraduate student on the other hand, his

work as registrar would be co-terminus with his passing the

postgraduate examination as M.D. or M.S./M.D.S. as the

case may be. He is also not liable to be transferred as a

full-fledged registrar, duly appointed as such, is liable to

be transferred due to exigencies of service. Thus, the

working of such students during the course of study as

residents whether on full payment or on stipendary payment

would make no difference and they cannot be said to be

holding any civil post in any hospital as full- fledged

medical officers. Consequently, Article 335 of the

Constitution of India cannot by itself be applied for

regulating the admission of eligible reserved category

students to postgraduate medical courses in the seats

reserved for them under Article 15(4) of the Constitution of

India. The next question that falls for consideration that

even assuming that Article 335 cannot be pressed in service

while considering the question of admission of eligible and

qualified candidates for enabling them to pursue courses of

postgraduate medical studies the guidelines laid down by the

Medical Council of India pursuant to the regulations made

under Section 33 of the Indian Medical Council Act, even

though persuasive in nature and not mandatory, can be

totally by-passed or ignored by the State authorities

concerned with short-listing of candidates for admission to

limited seats available in medical institutions imparting

postgraduate medical education? The answer obviously would

be in the negative. The guidelines laid down by the Medical

Council of India though persuasive have to be kept in view

while deciding as to whether the concession or facility to

be given to such reserved category of candidates should

remain within the permissible limits so as not to amount to

arbitrary and unreasonable grant of concessions wiping out

the concept of merit in its entirety. Consequently, it

cannot be said that even though short-listing of eligible

candidates is permissible to the State authorities, while

doing so, the State authorities can completely give a go-by

to the concept of merit and can go to the extent of totally

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dispensing with qualifying marks for SC,ST and OBC

candidates and can short-list them for being considered for

admission to reserved categories of seats for them in

postgraduate studies by reducing the qualifying marks to

even zero. That was rightly frowned upon by this court in

Sadhana Devis case (supra) as that would not amount to

short-listing but on the contrary would amount to completely

long listing of such reserved category candidates for the

vacancies which are reserved for them and on which they

would not be entitled to be admitted if they did not qualify

according to even reduced bench marks or qualifying marks

fixed for them. As seen earlier, keeping in view the ratio

of the Constitution bench of this court in M.R. Balajis

case (supra) it must be held that along with the permissible

reservation of 50% of seats for reserved category of

candidates in institutions imparting postgraduate studies,

simultaneously if further concessions by way of facilities

are to be given for such reserved category of candidates so

as to enable them to effectively occupy the seats reserved

for them, such concessions by way of dilution of qualifying

marks to be obtained at the entrance test for the purpose of

short-listing, can also not go beyond the permissible limits

of 50% of the qualifying marks uniformly fixed for other

candidates belonging to general category and who appear at

the same competitive test along with the reserved category

of candidates. It is found from the records of these cases

that qualifying marks at the entrance test for general

category of candidates are fixed at 50%. In fact such is

the general standard of qualifying marks suggested by the

Medical Council of India even at the stage of entrance

examination to MBBS course which is at the gross-root level

of medical education after a student has completed his

secondary education. Thus it would be proper to proceed on

the basis that minimum qualifying marks for clearing the

entrance test by way of short-listing for getting admitted

to postgraduate medical courses uniformly for all candidates

who appear at such examination should be 50% but so far as

reserved category of candidates are concerned who are

otherwise eligible for competing for seats in the

postgraduate medical courses, 50% reduction at the highest

of the general bench marks by way of permissible concession

would enable the State authorities to reduce the qualifying

marks for passing such entrance examination up to 50% of 50%

i.e. 25%. In other words, if qualifying marks for passing

the entrance examination for being admitted to postgraduate

medical courses is 50% for a general category candidate,

then such qualifying marks by way of concession can be

reduced for reserved category candidates to 25% which would

be the maximum permissible limit of reduction or deviation

from the general bench marks. Meaning thereby, that a

reserved category candidate even if gets 25% of the marks at

such a common entrance test he can be considered for being

admitted to the reserved vacancy for which he is otherwise

eligible. But below 25% of bench marks for reserved

category of candidates, no further dilution can be

permitted. In other words, concession or facility for

reserved category of candidates can remain permissible under

Article 15(4) up to only 50% of bench marks prescribed for

general category candidates. The State cannot reduce the

qualifying marks for a reserved category of candidate below

25% nor can it go up to zero as tried to be suggested by

Shri P.P.Rao, learned senior counsel for the State of Madhya

Pradesh as that would not amount to the process of

short-listing but would in fact amount to long listing or

comprehensive listing of such reserved category of

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candidates as seen earlier. Any such attempt to further

dilute the qualifying marks or bench marks for reserved

category of candidates below 25% of the general passing

marks would be violative of the provisions of Article 15(4)

as laid down by the Constitution Bench in M.R.Balajis case

(supra) and would also remain unreasonable and would be hit

by Article 14 of the Constitution of India. Within this

sliding scale of percentages between 25% and 50% passing

marks appropriate bench marks for passing the entrance test

examination can be suitably fixed for SC/ST and OBC

candidates as exigencies of the situation may require. But

in no case the qualifying marks for any of these reserved

categories of students can go below 25% of the general

passing marks. Any reserved category candidate who gets

less than 25% of marks at the entrance examination or less

than prescribed reduced percentage of marks for the

concerned category between 50% and 25% of passing marks

cannot be called for counselling and has to be ruled out of

consideration and in that process if any seats reserved for

reserved categories concerned remains unfilled by candidates

belonging to that category it must go to the general

category and can be filled in by the general category

candidate who has already obtained 50% or more marks at the

entrance examination but who could not be accommodated

because of lesser percentage of marks obtained by him qua

other general category candidates in the limited number of

seats available to them in a given institution in

postgraduate studies. As we will presently show even if

minimum passing marks in the entrance test for admission to

postgraduate courses is either reduced to 25% uniformly for

all the candidates or is reduced and diluted only for

reserved category of candidates, the net result would remain

substantially the same. This aspect can be highlighted by

taking an illustration. Suppose there are six seats in a

given postgraduate medical course. Then applying the ratio

of 50% permissible reservation of seats for reserved

category of candidates like SC/ST and OBCs three seats get

reserved, one each for SC,ST and OBC while three seats will

remain available to general category of candidates passing

the common entrance test. On the basis of this illustration

let us take a hypothetical case of 13 eligible candidates

who have passed basic MBBS examination and are duly

qualified to compete for the six seats in a given course of

postgraduate study. These 13 candidates undertake the same

entrance test and all of them as a result of the said test

obtained marks as under : A 75 out of 100, B 70, C(SC) 65,

D 60, E(SC) 55, F51, G50, H(OBC) 48, I 42, J(ST) 40, K35,

L30, M25, N (SC) 21. In the aforesaid illustration C, E and

N are SC candidates, H is OBC and J is a ST candidate. Now

if 50% passing marks are uniformly applied to all of them as

tried to be suggested by learned counsel for the

petitioners, the following picture will emerge : Situation

No.1: Seat numbers 1,2, and 3 are general seats, 4 reserved

for SC, 5 reserved for ST and 6 reserved for OBC. If 50%

passing marks are uniformly applied to seat nos.1,2,3,4,5 &

6 : Seat no.1 will go to A, 2 to B, 3 to C (SC), 4 to E

(SC), seat nos.5&6 will not get filled in by the reserved

category candidates as there are no ST or OBC candidates who

have obtained 50% and more marks. These two seats which

remain unfilled will go to D and F general category

candidates who have obtained more than 50% marks, but who

could not be accommodated in the seats available to general

category of candidates as the last candidate in the general

category who got admission though SC, was having 65% marks.

Thus the situation would be the two seats i.e. seat nos. 5

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and 6 which are reserved for ST and OBC and were otherwise

not available to general category of candidates would not go

to eligible and qualified ST and OBC candidates namely, H

and J even though they had obtained MBBS degrees and had the

basic qualification and eligibility for being admitted to

the seats reserved for them. That may affect the real

purpose underlying reservation under Article 15(4).

Situation No.2: We may now take the alternative situation

for consideration : If the minimum qualifying marks are

reduced to 25% for all categories of candidates to the

rock-bottom permissible limit including SC/ST and other

reserved category candidates, then the following picture

would emerge : Seat no.1 will go to A, seat no.2 will go to

B, seat no.3 will go to C(SC), seat no.4 which is reserved

for SC candidate will go to E, seat no.5 which is reserved

for ST will go to J, seat no.6 which is reserved for OBC

will go to H. All six seats will be filled up by A,B, C,E,J

& H. Thus even if the minimum passing marks are uniformly

reduced to 25% which is the permissible rock- bottom as seen

earlier the general category candidates will get the same

seats which would have been available to them even if the

minimum qualifying marks for admission would have been

uniformly kept at 50% for all candidates at the entrance

test. But what will happen is, that by reduction of these

qualifying marks to 25% all the reserved category seats 4 to

6 will get filled in by otherwise eligible and qualified

reserved category candidates E,J and H and there will remain

no occasion for making any of such seats available to left

out general category candidates like D and F for whom they

were not meant even otherwise and reservation of seats under

Article 15(4) would get fully fructified.

Situation no.3: Now let us assume that for general

category candidates minimum passing marks at the entrance

test are kept at 50% but for reserved category candidates

the passing marks are reduced to the permissible rock-bottom

limit of 25%. If that happens, the result would remain the

same, namely, as found in situation no.2, i.e. A will be

admitted to seat no.1, B will be admitted to seat no.2, C

(SC) will be admitted to seat no.3, E will be admitted to

seat no.4 reserved for SC, J will be admitted to seat no.5

reserved for ST and H will be admitted to seat no.6 reserved

for OBC. Then the net result would be that because of the

limited deviation of minimum qualifying marks only for

reserved category candidates, E, J & H who would have

otherwise been admitted to reserved category seats even if

there was universal and uniform reduction of qualifying

marks at 25%, will get the same benefit without affecting

the admission of general category candidates. Situation

No.4: As minimum qualifying marks for reserved category of

candidates are kept at 25% and are not reduced below the

same, candidate N who is a SC candidate and who has obtained

only 21% passing marks at the entrance test will be totally

ruled out of consideration, but even if the qualifying marks

are reduced to below the permissible limit of 25%, N will

not get any seat as the seat reserved for such candidates is

only one being no. 4 in the said course of study and is

already occupied by E who is a more meritorious SC candidate

qua N. Situation No.5: Now let us consider a situation

wherein E a SC candidate, who is entitled to reserved

category seat no.4 and has excluded D who is a general

category candidate who has obtained more marks than him

because of such permissible reservation of a seat for him,

for any reason does not join the course of study and his

seat becomes vacant, then in such a situation, the following

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picture may emerge in different categories of cases where

minimum passing marks are fixed differently : i) In case E

is not available and 50% minimum passing marks are fixed for

all categories of candidates then seat no.1 will go to A,

seat no.2 will go to B., seat no.3 will go to C, seat no.4

would not go to N who is the next eligible SC candidate who

has qualified for being admitted but has got less than

passing marks at the entrance test. That seat will remain

unoccupied and will go to the general category candidate D.

Seat no.5 which is reserved for ST person also cannot go to

J as he has got less than the passing marks. Seat no.5 will

therefore, go to F. Seat no.6 reserved for OBC also will

not go to H as he has got only 48% marks, less than the

minimum passing marks. His seat will go to general category

candidates who are in the waiting list and will be offered

to G who has just got the passing marks. Thus in the

absence of availability of E the six seats will go as under

: A,B,C,D,F & G. Thus all the reserved category seats will

remain unfilled by reserved category candidates and will be

added to general category seats. Result will be reservation

under Article 15(4) will totally fail. ii) Now let us take

another category of situation where minimum passing marks

are fixed at 25% for all candidates. In that case even if E

is not available then the first three general category seats

will go to A,B,C and the 4th seat reserved for SC candidate

will remain unfilled as the next available eligible SC

candidate is N who has got less than 25% minimum marks. So

his seat will go to the general category candidate who is in

the waiting list namely, D. While seat no.4 reserved for ST

candidate will go to J and seat no.6 reserved for OBC

candidate will go to H. Therefore, the net result will be

as under : 1 to 6 seats will go to A,B,C,D,J & H. iii) The

same result would follow for general category candidates

even if the minimum passing marks are fixed at 50% and for

the reserved category candidates the minimum qualifying

marks are reduced to 25%. Then the first three seats will

go to A,B,C, and seat no.4 not occupied by E a SC candidate

cannot go to N the next SC candidate who has got less than

25% marks. It will be occupied by D from the general

category candidates. While seat no.5 will go to J a ST

candidate who has more than 25% marks and seat no.6 will go

to H who is a OBC candidate having got 48% marks. Thus the

six seats will go to A,B,C,D,J & H. Thus it is clear that

where the minimum passing marks are uniformly reduced for

all candidates or they are reduced only for backward class

candidates but to the same extent, the result regarding

occupation of these seats by general category candidates and

reserved candidates would remain the same if E does not

occupy the seat available to him as an SC candidate. iv) If

for any reason the minimum qualifying marks for reserved

category candidates are still further reduced to 20% then in

the absence of availability of a SC candidate E, the next SC

candidate N having 21% may get it and occupy the seat

reserved for a SC candidate. In such a situation the

following picture will emerge : 1 to 3 will go to A,B,C;

seat no.4 reserved for SC candidate will go to N and seat

no.5 will go to ST candidate J and seat no.6 reserved for

OBC candidate will go to H. Resultantly no seat will be

left for being made available to general category candidate

D and he will get excluded. But as we have seen earlier, if

concession or dilution of minimum qualifying marks at the

entrance test for admission to postgraduate medical courses

is kept within the permissible limit of 50% dilution and can

go down only up to 25% minimum qualifying marks for reserved

category candidates then N in no case would get in to

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displace D who is a general category candidate and who had

an opportunity to get in vis-a-vis the seat reserved for SC

candidate as E the eligible SC candidate is not available at

a given point of time. The aforesaid illustration shows

that as C (SC candidate) has got the seat in general

category on his own merit his occupancy is not to be

considered while granting admission to the seat reserved for

SC candidate as held by a Constitution bench decision of

this Court in R.K. Sabharwal & Ors. vs. State of Punjab &

Ors., 1995(2) SCC 745. We may at this stage refer to

decision of a three Judge bench of this court in Dr.

Pradeep Jain & Ors. vs. Union of India & Ors., 1984(3) SCC

654, wherein in the context of reservation in medical

education courses on the basis of territorial or

institutional preference, Bhagwati, J., speaking for the

court in para 22 of the Report observed as under : But as

far as admissions to postgraduate courses, such as MS, MD

and the like are concerned, it would be eminently desirable

not to provide for any reservation based on residence

requirement within the State or on institutional preference.

There the excellence cannot be compromised by any other

considerations because that would be detrimental to the

interest of the nation. It is of course true that the

aforesaid observations were made not with reference to any

reservations as per Article 15(4). However, while

considering the extent of dilution of minimum passing marks

in the entrance examination for admission of reserved

category candidates to postgraduate medical courses, the

permissible limit below which the concessions available to

reserved category of candidates cannot be permitted to go,

would require serious consideration, otherwise merit would

be totally by-passed and jeopardised. It is also pertinent

to note that in the aforesaid decision the permissible limit

of reservation by way of institutional preference was held

to be only up to 50% of the total available seats. While

dealing with the scope and ambit of reservation under

Article 15(4) in postgraduate courses, which of course is

not in challenge before us, we have also to keep in view,

the observations of the nine Judge bench of this Court in

Indra Sawhneys case (supra). In para 146 of the Report at

page 401 Pandian, J., concurring with the main majority

decision rendered by Jeevan Reddy, J., observed that : The

basic policy of reservation is to off-set the inequality and

remove the manifest imbalance, the victims of which for

bygone generations lag far behind and demand equality by

special preferences and their strategies. Therefore, a

comprehensive methodological approach encompassing

jurisprudential, comparative, historical and anthropological

conditions is necessary. Such considerations raise

controversial issues transcending the routine legal exercise

because certain social groups who are inherently unequal and

who have fallen victims of societal discrimination require

compensatory treatment. Needless to emphasise that equality

in fact or substantive equality involves the necessity of

beneficial treatment in order to attain the result which

establishes an equilibrium between two sections placed

unequally.

Same learned Judge at pages 402-403 of the Report

considered a passage by Allan P. Sindler in his book Bakke,

Defunis and Minority Admissions (The Quest for Equal

Opportunity) which dealt with a running race between two

persons i.e. one who has his legs shackled and another not.

In such a race between unequals it was found necessary to

remove the inequality between the two runners by giving

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compensatory edge to the shackled runner. The learned Judge

also noted the submission of learned counsel for the

petitioners who demonstrably explained that as unwatered

seeds do not germinate, unprotected backward class citizens

will whither away. In the earlier Constitution bench

judgment in M.R.Balaji vs. State of Mysore (supra),

Gajendragadkar, J., at page 467 of the Report, this Court

made the following pertinent observations with reference to

Article 15(4) : When Art.15(4) refers to the special

provision for the advancement of certain classes or

scheduled castes or scheduled tribes, it must not be ignored

that the provision which is authorised to be made is a

special provision; it is not a provision which is exclusive

in character, so that in looking after the advancement of

those classes, the State would be justified in ignoring

altogether the advancement of the rest of the society. It

is because the interests of the society at large would be

served by promoting the advancement of the weaker elements

in the society that Art.15(4) authorises special provision

to be made.

We may also refer to the contention of learned senior

counsel Shri Rajendra Sachar, placing reliance on page 474

of the Report in M.R.Balajis case (supra) to the effect

that the efficiency of administration is of such paramount

importance that it would be unwise and impermissible to make

any reservation at the cost of efficiency of administration

and that it was undoubtedly the effect of Article 335.

Therefore, what is true in regard to Art.15(4) is equally

true in regard to Art.16(4). These observations, strongly

relied upon by Shri Sachar for importing the impact of

Article 335 on the reservations under Article 15(4) cannot

be treated to be of any real assistance to him. The

aforesaid observations were made by the Constitution bench

while considering the reasonableness of reservation of seats

in educational institutions and for highlighting the point

that such reservation of seats should not be more than 50%

and reservation of 68% of seats was not within the

permissible limit of special provision under Article 15(4).

From these observations, it cannot necessarily follow that

admission to such reserved seats can tantamount to

appointments to any posts to which Article 335 would get

directly attracted. While considering the permissible

limits of dilution of minimum passing marks for reserved

category candidates appearing at the entrance test for being

called for counselling for admissions to postgraduate

medical courses, we have to keep in view the salient fact

that different universities examining students for obtaining

MBBS degrees on the basis of the same syllabus may have

different yardsticks and standards of assessment of papers

and, therefore, students passing their MBBS examinations

from different universities cannot ipso facto be treated to

be equally meritorious and consequently the common entrance

test for admission to postgraduate courses cannot be said to

be totally uncalled for. However, because reservation of

seats at postgraduate educational level is countenanced, as

a logical corollary, to make effective the reservations and

with a view to seeing that the reserved category students do

not get excluded from getting admitted as far as possible,

provision for lesser qualifying marks for reserved category

candidates at the common entrance test cannot be said to be

totally illegal. However, with a view to seeing that

crutches provided to such weaker sections of society do not

cripple them for ever, the dilution of passing marks at the

common entrance test at which such reserved category

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candidates appear after obtaining their MBBS degrees from

different universities cannot be totally arbitrary and must

have a permissible rock-bottom limit below which it cannot

go and that is why it is reasonable to hold that when

reservation of seats under Article 15(4) in postgraduate

medical courses cannot exceed 50% as held by the

Constitution bench in M.R. Balajis case (supra) then on

the same line of reasoning additional facilities to be given

to such reserved category candidates for being admitted to

the seats reserved for them in the postgraduate medical

courses also should not exceed the permissible limit of 50%

dilution from the general cut-off marks provided uniformly

for general category of candidates competing for admission

to such limited number of seats at postgraduate level.

While dealing with the question of dilution of minimum

passing marks for reserved category of candidates appearing

at the entrance tests for admission to postgraduate courses

it has to be kept in view that general category students

form a separate class as compared to reserved category

candidates for whom seats are reserved under Article 15(4).

Once that is kept in view, as a logical corollary, it must

follow that to make such reservations effective appropriate

dilution of the minimum cut-off marks for students belonging

to the reserved category would become permissible subject to

the rider that such dilution should not be so unreasonable

as to go out of the beneficial protective umbrella of

Article 15(4) as seen earlier. If that happens it would

squarely get hit by Article 15(1) read with Article 14 of

the Constitution of India. However, within such permissible

limits such dilution for different reserved categories of

candidates who may be given benefit of sliding scales of

reduced passing marks as required by exigencies of situation

would remain legal and valid. In this connection,

observations in the Constitution bench judgment of this

court in Chitra Ghosh & Anr. vs. Union of India & Ors.

(supra), wherein Grover, J., spoke for the Constitution

bench as to which we have made a detailed reference earlier

are required to be kept in view. To recapitulate, it has

been held that selection of eligible candidates for

admission to medical courses can be made by classifying such

candidates category-wise keeping in view the services from

which they are drawn. The aforesaid decision of the

Constitution bench was directly concerned with the

admissions in medical colleges. It would squarely get

attracted while deciding the present controversy. It is

obvious that if for admission to a medical education course

at gross-root level of MBBS, different rules for selecting

candidates from different sources from which they are to be

drawn are countenanced, then even at the stage of admission

at postgraduate level, the ratio of the aforesaid decision

of the Constitution bench would squarely get attracted and

would permit separate treatment for students drawn from

different sources. It is of course true that in the said

case, the Constitution bench was concerned with the

nominations made by the Central Government on seats reserved

for such nominees. However, that would not whittle down the

decision of the Constitution bench to the effect that while

imparting education in theory and practice in medical

courses of study, the source from which candidates are drawn

can be a relevant classificatory criterion and there can be

different rules in the matter of selection of candidates

drawn from different sources. It is axiomatic that reserved

category candidates competing for being selected to the

seats reserved for them in postgraduate medical courses as

per the mandate of Article 15(4) of the Constitution have to

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compete inter se with their own colleagues from the same

categories and not necessarily have to compete with general

category candidates who form entirely a different class.

Once such classification is countenanced, as a necessary

concomitant, separate provision for reserved category of

candidates forming a separate class for which reservation of

seats in postgraduate medical courses is permitted cannot be

faulted and hence the dilution of minimum qualifying marks

for reserved category of candidates cannot by itself be

treated to be unauthorised or illegal from any view point.

Otherwise the very purpose of reserving seats for such class

of candidates at postgraduate level of medical education

would be denuded on its real content and the purpose of

reservation would fail. The seats reserved for such

category of persons would go unfilled and will swell the

admission of general category of candidates for whom these

seats are not at all meant to be made available, once the

scheme of reservation of seats under Article 15(4) is held

applicable. In the light of the aforesaid discussion, the

following conclusions emerge : 1) It is permissible to the@@

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State authorities which are running and/or controlling the

medical institutions in the States concerned to short-list

the eligible and qualified MBBS doctors for being considered

for admission to postgraduate medical courses in these

institutions. For the purpose of such short-listing full

play is available to the State authorities to exercise

legislative or executive power as the field is not occupied

till date by any legislation of the Parliament on this

aspect in exercise of its legislative powers under Entry 25

of List III of the Constitution of India and this topic is

also not covered by any legislation under Entry 66 of List I

of the Constitution. 2) The Indian Medical Council Act and

the regulations framed thereunder do not cover the question

of short-listing of admission of eligible and duly qualified

MBBS doctors who seek admission to different medical

institutions imparting postgraduate education run or

controlled by the States concerned. 3) The regulations and

guidelines given by the Medical Council of India in this

connection, though persuasive and not having any binding

force, cannot be totally ignored by the State authorities

but must be broadly kept in view while undertaking the

exercise of short-listing of eligible candidates for being

admitted to postgraduate medical courses. 4) While

short-listing candidates having basic qualifications of MBBS

for being considered for admission to limited number of

vacancies in postgraduate courses available at the medical

institutions in the Sates, it is permissible for the State

authorities to have common entrance tests and to prescribe

minimum qualifying marks for passing such tests to enable

the examinees who pass such test to be called for

counselling. That would be in addition to the basic

qualification by way of MBBS degree. The performance of the

candidate concerned during the time he or she undertook the

study at MBBS level for ultimately getting the MBBS degree

also would be a relevant consideration for the State

authorities to be kept in view. 5) It is equally

permissible for the State authorities while undertaking the

aforesaid exercise of short-listing to fix 50% minimum

qualifying marks at the entrance test for general category

of candidates and to dilute and prescribe lesser percentage

of passing marks for reserved category of candidates as

exigencies of situation may require in a given year but in

no case the minimum qualifying marks as reduced for reserved

category of candidates can go below 25% of passing marks for

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such reserved category of candidates. In other words, a

play is available to the State authorities to prescribe

different minimum passing marks for SC/ST and OBC eligible

candidates between 50% and 25% as the prevailing situation

at a given point of time may require. In such categories

for SC, ST & OBC candidates different diluted passing marks

can be prescribed, but this exercise has to be within the

permissible limits of less than 50% & up to minimum 25%

passing marks for each of such reserved categories. No

eligible candidate belonging to reserved category who does

not obtain minimum percent of passing marks as diluted for

such category of candidates by the State authorities can be

considered to be eligible for undertaking postgraduate

medical courses in a given year for which he has offered his

candidature and if any seat reserved for such categories of

candidates remain unfilled due to non-availability of such

eligible reserved category candidate to fill up such seat,

then the said seat would go to general category candidates

and will be available in the order of merit in the light of

marks obtained by such wait-listed general category

candidates having obtained requisite passing marks who

otherwise could not get admitted due to non-availability of

general category seats earlier. The ratio of various

decisions of this court considered herein above will have to

be implemented in the light of the aforesaid conclusions to

which we have reached. The aforesaid practice has to be

followed and should hold the field from year to year so long

as the Parliament does not pass any legislation for

regulating admission to postgraduate medical courses either

by separate legislation or by appropriately amending Indian

Medical Council Act by empowering the Medical Council of

India to prescribe such regulations. The writ petitions and

the civil appeal arising out of the special leave petition

as well as the review petitions would stand disposed of

accordingly in the aforesaid terms and the judgments

rendered by the High Courts will stand modified and the

impugned orders passed by the State authorities will also

stand set aside accordingly. However, the present judgment

will operate purely prospectively and will not affect the

admissions already granted by the concerned authorities in

the postgraduate medical courses prior to the date of this

judgment. In other words, the State authorities will have

to comply with the directions contained in this judgment and

put their house in order for regulating the admissions to

postgraduate medical courses starting hereinafter in the

medical institutions concerned.