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PETITIONER:

DR.PREETI SRIVASTAVA,DR.SADHNA DEVI,DR.ASHUTOSH AGRAWAL.

Vs.

RESPONDENT:

THE STATE OF MADHYA PRADESH & ORS,STATE OF UTTAR PRADESH.

DATE OF JUDGMENT: 10/08/1999

BENCH:

A.S. Anand, Sujata V.Mahohar, K.Venkataswami, V.N.Khare

JUDGMENT:

Mrs. Sujata V. Manohar, J.

Leave granted in SLP(C) No.12231 of 1997.

The following issue formulated by this Court at the

commencement of hearing, requires consideration: "The

question is whether apart from providing reservation for

admission to the Post Graduate Courses in Engineering and

Medicine for special category candidates, it is open to the

State to prescribe different admission criteria, in the

sense of prescribing different minimum qualifying marks, for

special category candidates seeking admission under the

reserved category."

"This question certainly requires consideration of the

Constitution Bench as it arises and is likely to arise in a

number of cases in different institutions of the country and

needs to be decided authoritatively keeping in view the

observations made in three different two or three-Judge

Bench judgments". These judgments are Ajay Kumar Singh &

Ors. v. State of Bihar & Ors. ([1994] 4 SCC 401), Dr.

Sadhna Devi & Ors. v. State of U.P. & Ors. ([1997] 3 SCC

90) and Post Graduate Institute of Medical Education &

Research, Chandigarh & Ors. v. K.L. Narasimhan & Anr.

([1997] 6 SCC 283)

Facts:

The State of Uttar Pradesh has prescribed a Post

Graduate Medical Entrance Examination for admission to Post

Graduate Degree/Diploma courses in medicine. This is in

conformity with the relevant Regulations of the Medical

Council of India. By G.O. dated 11.10.1994, the State

Government fixed a cut-off percentage of 45% marks in the

Post Graduate Medical Entrance Examination (PGMEE) for

admission of the general category candidates to the Post

Graduate Courses in Medicine. The cutoff percentage of

marks for the reserved category candidates viz. Scheduled

Castes, Scheduled Tribes etc. was fixed at 35%.

Thereafter, by another G.O. dated 31.8.1995 the State of

Uttar Pradesh completely did away with a cut-off percentage

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of marks in respect of the reserved category candidates so

that there were no minimum qualifying marks in the Post

Graduate Medical Entrance Examination prescribed for the

reserved category candidates who were seeking admission to

the Post Graduate Courses.

This G.O. of 31.8.1995 was challenged before this

Court in Writ Petition (C) No.679 of 1995 Dr. Sadhna Devi &

Ors. v. State of U.P. & Ors. [1997] 3 SCC 90). This

Court, by its judgment dated 19.2.1997, held that while

laying down minimum qualifying marks for admission to the

Post Graduate Courses, it was not open to the Government to

say that there will be no minimum qualifying marks for the

reserved category of candidates. If this is done, merit

will be sacrificed altogether. This Court struck down G.O.

dated 31.8.1995.

After the said decision, the State of U.P. issued

another G.O. dated 2.4.1997 under which the cut-off

percentage of marks for the reserved category candidates was

restored at 35%. However, the State of U.P. moved an

application before this Court, being I.A. No.2 of 1997 Dr.

Sadhna Devi (Supra) in which the State of U.P. (inter alia)

prayed that it should be given the liberty to reduce the

cut-off percentage from 35% to 20% for the reserved category

candidates who appear in the PGMEE for 1997. Without

waiting for a decision, by an Ordinance dated 15.6.1997, the

State of U.P. reduced the minimum qualifying marks for the

reserved category candidates appearing in the PGMEE 1997

from 35% to 20%. This Ordinance is challenged in the

present Writ Petition (C) No.300 of 1997. The Ordinance has

now been replaced by the Uttar Pradesh Post Graduate Medical

Education (Reservation for Scheduled Castes, Scheduled

Tribes and Other Backward Classes) Act, 1997. The

petitioners have now amended the said writ petition to

challenge this Act.

For admissions effected in 1998, the State of U.P.

again prescribed a cut-off percentage of 20% marks for the

reserved category candidates. Learned counsel for the State

of U.P. has further stated that for the current year's

admission, i.e. for admission to the P.G.M.E.E. 1999, the

State has introduced a Bill in the Legislative Assembly

prescribing the same cut-off percentage of 20% marks for the

reserved category candidates.

The lower percentage of qualifying marks prescribed

for the scheduled caste, scheduled tribe and backward class

candidates are in conjunction with the following reservation

of seats at the PGMEE:

Scheduled Castes : 21%, Scheduled Tribes : 2%,

Backward Classes : 27% In the State of Madhya Pradesh also

a common entrance examination is held for admission to the

Post Graduate Courses in Medicine. Under the Madhya Pradesh

Medical and Dental Post Graduate Entrance Examination Rules,

1997, certain seats were reserved for the Scheduled Caste,

Scheduled Tribe, BC and in-service candidates. The Rules,

however, did not lay down any minimum qualifying marks for

admission to the Post Graduate Courses either for the

general category or for the reserved category of candidates.

These Rules were challenged by a writ petition before the

Madhya Pradesh High Court. By its judgment which is under

challenge in these proceedings, the Madhya Pradesh High

Court directed the State Government to stipulate minimum

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qualifying marks in the PGMEE for all categories of

candidates, including the general category candidates, in

view of the decision of this Court in Dr. Sadhna Devi's

case (supra).

By G.O. dated 7.6.1997 the State of Madhya Pradesh

prescribed the following minimum percentage of qualifying

marks for the reserved category candidates to make them

eligible for counselling and admission to the Post Graduate

Medical Courses:

Scheduled Castes : 20% Scheduled Tribes : 15% Other

Backward Classes : 40%

This Government Order of the State of Madhya Pradesh

is under challenge before us.

We have, therefore, to consider whether for admission

to the Post Graduate Medical Courses, it is permissible to

prescribe a lower minimum percentage of qualifying marks for

the reserved category candidates as compared to the general

category candidates. We do not propose to examine whether

reservations are permissible at the Post Graduate level in

medicine. That issue was not debated before us, and we

express no opinion on it. We need to examine only whether

any special provision in the form of lower qualifying marks

in the PGMEE can be prescribed for the reserved category.

The Constitutional Imperative:

The constitutional protection of equality before the

law under Article 14 of the Constitution is one of the basic

tenets of the Constitution. It is a cardinal value which

will govern our policies and actions, particularly policies

for employment and education. Article 15(1) prohibits State

discrimination on the ground (among others) of religion,

race or caste. Article 16(1) prescribes equality of

opportunity for all in matters relating to employment or

appointment to any office under the State. Article 16(2)

prohibits discrimination on the ground (among others) of

religion, race, caste or descent. At the same time, the

Constitution permits preferential treatment for historically

disadvantaged groups in the context of entrenched and

clearly perceived social inequalities. That is why Article

16(4) permits reservation of appointments or posts in favour

of any backward class which is not adequately represented in

the services under the State. Reservation is linked with

adequate representation in the services. Reservation is

thus a dynamic and flexible concept. The departure from the

principle of equality of opportunity has to be constantly

watched. So long as the backward group is not adequately

represented in the services under the State, reservations

should be made. Clearly, reservations have been considered

as a transitory measure that will enable the backward to

enter and be adequately represented in the State services

against the backdrop of prejudice and social discrimination.

But finally, as the social backdrop changes ? and a change

in the social backdrop is one of the constitutional

imperatives, as the backward are able to secure adequate

representation in the services, the reservations will not be

required. Article 335 enters a further caveat. While

considering the claims of Scheduled Castes and Scheduled

Tribes for appointments, the maintenance of efficiency of

administration shall be kept in sight.

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Article 15(4), which was added by the Constitution

First Amendment of 1951, enables the State to make special

provisions for the advancement, inter alia, of Scheduled

Castes and Scheduled Tribes, notwithstanding Articles 15(1)

and 29(2). The wording of Article 15(4) is similar to that

of Article 15(3). Article 15(3) was there from inception.

It enables special provisions being made for women and

children notwithstanding Article 15(1) which imposes the

mandate of non- discrimination on the ground (among others)

of sex. This was envisaged as a method of protective

discrimination. This same protective discrimination was

extended by Article 15(4) to (among others) Scheduled Castes

and Scheduled Tribes. As a result of the combined operation

of these Articles, an array of programmes of compensatory or

protective discrimination have been pursued by the various

States and the Union Government. Marc Galanter, in his

book, "Competing Equalities" has described the

constitutional scheme of compensatory discrimination thus:

"These compensatory discrimination policies entail

systematic departures from norms of equality (such as merit,

evenhandedness, and indifferences of ascriptive

characteristics). These departures are justified in several

ways: First, preferential treatment may be viewed as needed

assurance of personal fairness, a guarantee against the

persistence of discrimination in subtle and indirect forms.

Second, such policies are justified in terms of beneficial

results that they will presumably promote: integration, use

of neglected talent, more equitable distribution, etc. With

these two - the anti-discrimination theme and the general

welfare theme - is entwined a notion of historical

restitution or reparation to offset the systematic and

cumulative deprivations suffered by lower castes in the

past. These multiple justifications point to the

complexities of pursuing such a policy and of assessing its

performance." Since every such policy makes a departure from

the equality norm, though in a permissible manner, for the

benefit of the backward, it has to be designed and worked in

a manner conducive to the ultimate building up of an

egalitarian non-discriminating society. That is its final

constitutional justification. Therefore, programmes and

policies of compensatory discrimination under Article 15(4)

have to be designed and pursued to achieve this ultimate

national interest. At the same time, the programmes and

policies cannot be unreasonable or arbitrary, nor can they

be executed in a manner which undermines other vital public

interests or the general good of all. All public polices,

therefore, in this area have to be tested on the anvil of

reasonableness and ultimate public good. In the case of

Article 16(4) the Constitution makers explicitly spelt out

in Article 335 one such public good which cannot be

sacrificed, namely, the necessity of maintaining efficiency

in administration. Article 15(4) also must be used, and

policies under it framed, in a reasonable manner

consistently with the ultimate public interests.

In the case of M.R. Balaji & Ors. v. State of

Mysore ([1963] Suppl. 1 SCR 439 at pages 466-467), a

Constitution Bench of this Court considered this very

question relating to the extent of special provisions which

it would be competent for the State to make, under Article

15(4). This Court accepted the submission that Article

15(4) must be read in the light of Article 46 and that under

it, the educational and economic interests of the weaker

sections of the people can be promoted properly and

liberally, to establish social and economic equality. The

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Court said, "No one can dispute the proposition that

political freedom and even fundamental rights can have very

little meaning or significance for the backward classes and

the Scheduled Castes and Scheduled Tribes unless the

backwardness and inequality from which they suffer are

immediately redressed".

The Court, however, rejected the argument that the

absence of any limitation on the State's power to make an

adequate special provision under Article 15(4) indicates

that if the problem of backward classes of citizens and

Scheduled Castes and Scheduled Tribes in any given State is

of such a magnitude that it requires the reservation of all

seats in the higher educational institutions, it would be

open to the State to take that course. This Court said:

"When Article 15(4) refers to the special provisions 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

Article 15(4) authorises special provision to be made. But

if a provision which is in the nature of an exception

completely excludes the rest of the society, that clearly is

outside the scope of Article 15(4). It would be extremely

unreasonable to assume that in enacting Article 15(4) the

Parliament intended to provide that where the advancement of

the Backward Classes or the Scheduled Castes and Tribes was

concerned, the fundamental rights of the citizens

constituting the rest of the society were to be completely

and absolutely ignored." This Court struck down a

reservation of 68% made for backward classes for admission

to Medical and Engineering Courses in the university. This

Court further observed, (at page 407) "A special provision

contemplated by Article 15(4), like reservation of posts and

appointments contemplated by Article 16(4), must be within

reasonable limits. The interest of weaker sections of

society which are a first charge on the States and the

Centre have to be adjusted with the interest of the

community as a whole". The Court also said that while

considering the reasonableness of the extent of reservation

one could not lose sight of the fact that the admissions

were to institutes of higher learning and involved

professional and technical colleges. "The demand for

technicians, scientists, doctors, economists, engineers and

experts for the further economic advancement of the country

is so great that it would cause grave prejudice to national

interests if considerations of merit are completely excluded

by wholesale reservation of seats in all technical, medical

or engineering colleges or institutions of that kind." (Page

468) Therefore, consideration of national interest and the

interests of the community or society as a whole cannot be

ignored in determining the reasonableness of a special

provision under Article 15(4).

In the case of Dr. Jagdish Saran & Ors. v. Union of

India ([1980] 2 SCC 768), reservation of 70% of seats for

the local candidates in admissions to the Post Graduate

Medical Courses by the Delhi University was struck down by

this Court. While doing so, Krishna Iyer J. speaking for

the Court spelt out the ambits of Articles 14 and 15. He

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said, (at page 778) "But it must be remembered that

exceptions cannot overrule the rule itself by running riot

or by making reservations as a matter of course in every

university and every course. For instance, you cannot

wholly exclude meritorious candidates as that will promote

sub-standard candidates and bring about a fall in medical

competence injurious in the long run to the very

region..........Nor can the very best be rejected from

admission because that will be a national loss and the

interests of no region can be higher than those of the

nation. So, within these limitations without going into

excesses there is room for play of the State's policy

choices." He further observed, "The first caution is that

reservation must be kept in check by the demands of

competence. You cannot extend the shelter of reservation

where minimum qualifications are absent. Similarly, all the

best talent cannot be completely excluded by wholesale

reservation......A fair preference, a reasonable

reservation, a just adjustment of the prior needs and real

potentials of the weak with the partial recognition of the

presence of competitive merit - such is the dynamic of

social justice which animates the three egalitarian articles

of the Constitution."

"Flowing from the same stream of equalism is another

limitation. The basic medical needs of a region or the

preferential push justified for a handicapped group cannot

prevail in the same measure at the highest scales of

speciality where the best scale or talent must be handpicked

by selecting according to capability. At the level of

P.H.D., M.D. or levels of higher proficiency where

international measure of talent is made, where losing one

great scientist or technologist in the making is a national

loss, the considerations we have expended upon as important,

lose their potency, where equality measured by matching

excellence has more meaning and cannot be diluted much

without grave risk."

The same reasoning runs through Dr. Pradeep Jain &

Ors. v. Union of India & Ors. ([1984] 3 SCC 654). It

dealt with reservation of seats for the residents of the

State or the students of the same university for admission

to the medical colleges. The Court said, (at page 676)

"Now, the concept of equality under the Constitution is a

dynamic concept. It takes within its sweep every process of

equalisation and protective discrimination. Equality must

not remain mere ideal indentation but it must become a

living reality for the large masses of people............

It is, therefore, necessary to take into account de facto

inequalities which exist in the society and to take

affirmative action by way of giving preference to the

socially and economically disadvantaged persons or

inflicting handicaps on those more advantageously placed in

order to bring about real equality." The Court after

considering institutional and residential preferences for

admission to the M.B.S.S. course, said that different

considerations would prevail in considering such

reservations for admission to the Post Graduate Courses such

as M.D., M.S. and the like. It said, (at page 691) "There

we cannot allow excellence to be compromised by any other

considerations because that would be detrimental to the

interest of the nation." Quoting the observation of Justice

Krishna Iyer in Dr. Jagdish Saran case (supra) the Court

said, "This proposition has far greater importance when we

reach the higher levels of education like Post Graduate

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Courses. After all, top technological expertise in any

vital field like medicine is a nation's human asset without

which its advance and development will be stunted. The role

of high grade skill or special talent may be less at the

lesser levels of education, jobs and disciplines of social

inconsequence, but more at the higher levels of

sophisticated skills and strategic employment. To devalue

merit at the summit is to temporise with the country's

development in the vital areas of professional expertise."

(underlining ours)

A similar strand of thought runs through Indra Sawhney

& Ors. v. Union of India & Ors. ([1992] Supp.(3) SCC

217), where a Bench of nine Judges of this Court considered

the nature, amplitude and scope of the constitutional

provisions relating to reservations in the services of the

State. Jeevan Reddy J. speaking for the majority (in

paragraph 836) stated that the very idea of reservation

implies selection of a less meritorious person. At the same

time, we recognise that this much cost has to be paid if the

constitutional promise of social justice is to be redeemed.

We also formally believe that given an opportunity, members

of these classes are bound to overcome their initial

disadvantages and would compete with ? and may in some

cases excel ? members on open competition. Having said

this, the Court went on to add, (in paragraph 838) "We are

of the opinion that there are certain services and positions

where either on account of nature of duties attached to them

or the level (in the hierarchy) at which they obtain, merit

as explained herein above alone counts. In such situations

it may not be advisable to provide for reservations. For

example, technical posts in research and development

organisations/departments/institutions, in specialities and

super-specialities in medicine, engineering and other such

courses in physical science and mathematics, in defence

services and in the establishments connected therewith."

(underlining ours)

A similar view has been taken in Mohan Bir Singh

Chawla v. Punjab University, Chandigarh & Anr. ([1997] 2

SCC 171) where this Court said that at higher levels of

education it would be dangerous to depreciate merit and

excellence. The higher you go in the ladder of education,

the lesser should be the reservation. In Dr. Sadhna Devi's

case (supra) also this Court has expressed a doubt as to

whether there can be reservations at the Post Graduate level

in Medicine.

We are, however, not directly concerned with the

question of reservations at the Post Graduate level in

Medicine. We are concerned with another special provision

under Article 15(4) made at the stage of admission to the

Post Graduate Medical Courses, namely, providing for lesser

qualifying marks or no qualifying marks for the members of

the Scheduled Castes and Scheduled Tribes for admission to

the Post Graduate Medical Courses. Any special provision

under Article 15(4) has to balance the importance of having,

at the higher levels of education, students who are

meritorious and who have secured admission on their merit,

as against the social equity of giving compensatory benefit

of admission to the Scheduled Caste and Scheduled Tribe

candidates who are in a disadvantaged position. The same

reasoning which propelled this Court to underline

reasonableness of a special provision, and the national

interest in giving at the highest level of education, the

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few seats at the top of the educational pyramid only on the

basis of merit and excellence, applies equally to a special

provision in the form of lower qualifying marks for the

backward at the highest levels of education.

It is of course, important to provide adequate

educational opportunities for all since it is education

which ultimately shapes life. It is the source of that thin

stream of reason which alone can nurture a nation's full

potential. Moreover, in a democratic society, it is

extremely important that the population is literate and is

able to acquire information that shapes its decisions.

The spread of primary education has to be wide enough

to cover all sections of the society whether forward or

backward. A large percentage of reservations for the

backward would be justified at this level. These are

required in individual as well as national interest. A

university level education upto graduation, also enables the

individual concerned to secure better employment. It is

permissible and necessary at this level to have reasonable

reservations for the backward so that they may also be able

to avail of these opportunities for betterment through

education, to which they may not have access if the college

admissions are entirely by merit as judged by the marks

obtained in the qualifying examination. At the level of

higher post-graduate university education, however, apart

from the individual self interest of the candidate, or the

national interest in promoting equality, a more important

national interest comes into play. The facilities for

training or education at this level, by their very nature,

are not available in abundance. It is essential in the

national interest that these special facilities are made

available to persons of high calibre possessing the highest

degree of merit so that the nation can shape their

exceptional talent that is capable of contributing to the

progress of human knowledge, creation and utilisation of new

medical, technical or other techniques, extending the

frontiers of knowledge through research work - in fact

everything that gives to a nation excellence and ability to

compete internationally in professional, technical and

research fields.

This Court has repeatedly said that at the level of

superspecialisation there cannot be any reservation because

any dilution of merit at this level would adversely affect

the national goal of having the best possible people at the

highest levels of professional and educational training. At

the level of a super speciality, something more than a mere

professional competence as a doctor is required. A

super-specialist acquires expert knowledge in his speciality

and is expected to possess exceptional competence and skill

in his chosen field, where he may even make an original

contribution in the form of new innovative techniques or new

knowledge to fight diseases. It is in public interest that

we promote these skills. Such high degrees of skill and

expert knowledge in highly specialised areas, however,

cannot be acquired by anyone or everyone. For example,

specialised sophisticated knowledge and skill and ability to

make right choices of treatment in critical medical

conditions and even ability to innovate and device new lines

of treatment in critical situations, requires high levels of

intelligent understanding of medial knowledge or skill and a

high ability to learn from technical literature and from

experience. These high abilities are also required for

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absorbing highly specialised knowledge which is being

imparted at this level. It is for this reason that it would

be detrimental to the national interest to have reservations

at this stage. Opportunities for such training are few and

it is in the national interest that these are made available

to those who can profit from them the most viz. the best

brains in the country, irrespective of the class to which

they belong.

At the next below stage of post-graduate education in

medical specialities, similar considerations also prevail

though perhaps to a slightly lesser extent than in the super

specialities. But the element of public interest in having

the most meritorious students at this level of education is

present even at the stage of post-graduate teaching. Those

who have specialised medical knowledge in their chosen

branch are able to treat better and more effectively,

patients who are sent to them for expert diagnosis and

treatment in their specialised field. For a student who

enrols for such speciality courses, an ability to assimilate

and acquire special knowledge is required. Not everyone has

this ability. Of course intelligence and abilities do not

know any frontiers of caste or class or race or sex. They

can be found anywhere, but not in everyone. Therefore,

selection of the right calibre of students is essential in

public interest at the level of specialised post-graduate

education. In view of this supervening public interest

which has to be balanced against the social equity of

providing some opportunities to the backward who are not

able to qualify on the basis of marks obtained by them for

post-graduate learning, it is for an expert body such as the

Medical Council of India, to lay down the extent of

reservations, if any, and the lowering of qualifying marks,

if any, consistent with the broader public interest in

having the most competent people for specialised training,

and the competing public interest in securing social justice

and equality. The decision may perhaps, depend upon the

expert body's assessment of the potential of the reserved

category candidates at a certain level of minimum qualifying

marks and whether those who secure admission on the basis of

such marks to post-graduate courses, can be expected to be

trained in two or three years to come up to the standards

expected of those with post-graduate qualifications.

The speciality and super speciality courses in

medicine also entail on-hand experience of treating or

operating on patients in the attached teaching hospitals.

Those undergoing these programmes are expected to occupy

posts in the teaching hospitals or discharge duties attached

to such posts. The elements of Article 335, therefore,

colour the selection of candidates for these courses and the

Rules framed for this purpose.

In the premises the special provisions for SC/ST

candidates whether reservations or lower qualifying marks -

at the speciality level have to be minimal. There cannot,

however, be any such special provisions at the level of

super specialities.

Entrance Examination for post-graduate courses and

qualifying marks:

When a common entrance examination is held for

admission to postgraduate medical courses, it is important

that passing marks or minimum qualifying marks are

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prescribed for the examination. It was, however, contended

before us by learned counsel appearing for the State of

Madhya Pradesh that there is no need to prescribe any

minimum qualifying marks in the common entrance examination.

Because all the candidates who appear for the common

entrance examination have passed the M.B.B.S. examination

which is an essential pre-requisite for admission to

postgraduate medical courses. The PGMEE is merely for

screening the eligible candidates.

This argument ignores the reasons underlying the need

for a common entrance examination for post-graduate medical

courses in a State. There may be several universities in a

State which conduct M.B.B.S. courses. The courses of study

may not be uniform. The quality of teaching may not be

uniform. The standard of assessment at the M.B.B.S.

examination also may not be uniform in the different

universities. With the result that in some of the better

universities which apply more strict tests for evaluating

the performance of students, a higher standard of

performance is required for getting the passing marks in the

M.B.B.S. examination. Similarly, a higher standard of

performance may be required for getting higher marks than in

other universities. Some universities may assess the

students liberally with the result that the candidates with

lesser knowledge may be able to secure passing marks in the

M.B.B.S. examination; while it may also be easier for

candidates to secure marks at the higher level. A common

entrance examination, therefore, provides a uniform

criterion for judging the merit of all candidates who come

from different universities. Obviously, as soon as one

concedes that there can be differing standards of teaching

and evaluation in different universities, one cannot rule

out the possibility that the candidates who have passed the

M.B.B.S. examination from a university which is liberal in

evaluating its students, would not, necessarily, have

passed, had they appeared in an examination where a more

strict evaluation is made. Similarly, candidates who have

obtained very high marks in the M.B.B.S. examination where

evaluation is liberal, would have got lesser marks had they

appeared for the examination of a university where stricter

standards were applied. Therefore, the purpose of such a

common entrance examination is not merely to grade

candidates for selection. The purpose is also to evaluate

all candidates by a common yardstick. One must, therefore,

also take into account the possibility that some of the

candidates who may have passed the M.B.B.S. examination

from more "generous" universities, may not qualify at the

entrance examination where a better and uniform standard for

judging all the candidates from different universities is

applied. In the interest of selecting suitable candidates

for specialised education, it is necessary that the common

entrance examination is of a certain standard and qualifying

marks are prescribed for passing that examination. This

alone will balance the competing equities of having

competent students for specialised education and the need to

provide for some room for the backward even at the stage of

specialised post-graduate education which is one step below

the super specialities.

The submission, therefore, that there need not be any

qualifying marks prescribed for the common entrance

examination has to be rejected. We have, however, to

consider whether different qualifying marks can be

prescribed for the open merit category of candidates and the

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reserved category of candidates. Normally passing marks for

any examination have to be uniform for all categories of

candidates. We are, however, informed that at the stage of

admission to the M.B.B.S. course, that is to say, the

initial course in medicine, the Medical Council of India has

permitted the reserved category candidates to be admitted if

they have obtained the qualifying marks of 35% as against

the qualifying marks of 45% for the general category

candidates. It is, therefore, basically for an expert body

like the Medical Council of India to determine whether in

the common entrance examination viz. PGMEE, lower

qualifying marks can be prescribed for the reserved category

of candidates as against the general category of candidates;

and if so, how much lower. There cannot, however, be a big

disparity in the qualifying marks for the reserved category

of candidates and the general category of candidates at the

post-graduate level. This level is only one step below the

apex level of medical training and education where no

reservations are permissible and selections are entirely on

merit. At only one step below this level the disparity in

qualifying marks, if the expert body permits it, must be

minimal. It must be kept at a level where it is possible

for the reserved category candidates to come up to a certain

level of excellence when they qualify in the speciality of

their choice. It is in public interest that they have this

level of excellence.

In the present case, the disparity of qualifying marks

being 20% for the reserved category and 45% for the general

category is too great a disparity to sustain public interest

at the level of post-graduate medical training and

education. Even for the M.B.B.S. course, the difference in

the qualifying marks between the reserved category and the

general category is smaller, 35% for the reserved category

and 45% for the general category. We see no logic or

rationale for the difference to be larger at the

post-graduate level.

Standard of Education:

A large differentiation in the qualifying marks

between the two groups of students would make it very

difficult to maintain the requisite standard of teaching and

training at the post-graduate level. Any good teaching

institution has to take into account the calibre of its

students and their existing level of knowledge and skills if

it is to teach effectively any higher courses. If there are

a number of students who have noticeably lower skills and

knowledge, standard of education will have to be either

lowered to reach these students, or these students will not

be able to benefit from or assimilate higher levels of

teaching, resulting in frustration and failures. It would

also result in a wastage of opportunities for specialised

training and knowledge which are by their very nature,

limited.

It is, therefore, wrong to say that the standard of

education is not affected by admitting students with low

qualifying marks, or that the standard of education is

affected only by those factors which come into play after

the students are admitted. Nor will passing a common final

examination guarantee a good standard of knowledge. There

is a great deal of difference in the knowledge and skills of

those passing with a high percentage of marks and those

passing with a low percentage of marks. The reserved

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category of students who are chosen for higher levels of

university education must be in a position to benefit and

improve their skills and knowledge and bring it to a level

comparable with the general group, so that when they emerge

with specialised knowledge and qualifications, they are able

to function efficiently in public interest. Providing for

20% marks as qualifying marks for the reserved category of

candidates and 45% marks for the general category of

candidates, therefore, is contrary to the mandate of Article

15(4). It is for the Medical Council of India to prescribe

any special qualifying marks for the admission of the

reserved category candidates to the post-graduate medical

courses. However, the difference in the qualifying marks

should be at least the same as for admission to the

under-graduate medical courses, if not less.

Learned senior counsel Mr. Bhaskar P. Gupta for the

intervenors drew our attention to an interesting study done

by R.C. Davidson in relation to the affirmative action and

other special consideration admissions at the University of

California, Davis, School of Medicine. The study graded the

students who were admitted on a scale (MCAC) with a range

from 1 to 15. On this scale, the students who received

special consideration admission had an average score of nine

while the students who were admitted on open merit had an

average of 11. However, when both these groups graduated

from medical school both the groups had a high rate of

successful graduation though the general group had a

statistically significant higher rate. The special group

had a graduation rate of 94% while the general group had a

graduation rate of 98%. The study also found that the

differences in the abilities of special consideration

students were more evident in the first and second years of

the curriculum. In the third year also the differences were

visible. However, the two groups had begun to merge in

their achievements; and ultimately by the time the groups

qualified in the final examination, there was a convergence

of academic progress between the special consideration

admission students and the regularly admitted students as

the process of training lengthened. A similar study does

not appear to have been made in our country relating to the

progress of the reserved category candidates in the course

of their studies. But two things are evident even from the

study made by Davidson. The longer the period of training,

the greater the chances of convergence of the two groups.

Secondly, both the groups had an initial high score - more

than halfway up the scale. Also, the initial difference in

their scores was not very large. It was nine as compared to

eleven on a scale of fifteen. Therefore, at a high level of

scoring, the narrower the difference, the greater the

chances of convergence. This study, therefore, will not

help the respondents in the present case because of the

substantial difference in the qualifying marks for admission

prescribed for the reserved category candidates as against

the general category candidates; and the very low level of

qualifying marks prescribed. Thirdly, at the post-graduate

level the course of studies is relatively shorter and the

course is designed to give high quality speciality education

to the qualified doctors to enable them to excel in their

chosen field of speciality. Therefore, unless there is a

proper control at the stage of admission, on the different

categories of the students who are admitted, and unless the

differences are kept to a minimum, such differences will not

disappear in the course of time if the course of study is a

specialised course such as a post-graduate course.

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Who should decide the qualifying marks and will it

affect the standard of education:

Learned counsel for the States of Uttar Pradesh and

Madhya Pradesh contend that it is for the States to decide

the qualifying marks which should be prescribed for the

reserved category candidates at the PGMEE. It is a matter

of state policy. The Medical Council of India cannot have

any say in prescribing the qualifying marks for the PGMEE.

The two States have contended that it is the State which

controls admissions to the post-graduate courses in

medicine. It is for the State to decide whether to provide

a common entrance examination or not. This examination may

or may not have any minimum qualifying marks or it may have

different qualifying marks for different categories of

candidates. It is, therefore, not open to any other

authority to interfere with the rules for admission to the

post-graduate medical courses in each State. They have also

contended that a common entrance examination is merely for

the purpose of screening candidates and since all the

candidates have passed the M.B.B.S. examination the

standard is not affected even if no minimum marks are

prescribed for passing the common entrance examination. The

latter argument we have already examined and negatived. The

other contention, however, relating to the power of the

State to control admissions to the post-graduate courses in

medicine requires to be examined.

The legislative competence of the Parliament and the

legislatures of the States to make laws under Article 246 is

regulated by the VIIth Schedule to the Constitution. In the

VIIth Schedule as originally in force, Entry 11 of List-II

gave to the States an exclusive power to legislate on

"Education including universities subject to the provisions

of Entries 63, 64, 65 and 66 of List-I and Entry 25 of

List-III." Entry 11 of List-II was deleted and Entry 25 of

List-III was amended with effect from 3.1.1976 as a result

of the Constitution 42nd Amendment Act of 1976. The present

Entry 25 in the Concurrent List is as follows:

"Entry 25, List III: Education, including technical

education, medical education and universities, subject to

the provisions of entries 63, 64, 65 and 66 of List I:

vocational and technical training of labour."

Entry 25 is subject, inter alia, to Entry 66 of

List-I. Entry 66 of List-I is as follows:-

"Entry 66, List I: Co-ordination and determination of

standards in institutions for higher education or research

and scientific and technical institutions."

Both the Union as well as the States have the power to

legislate on education including medical education, subject,

inter alia, to Entry 66 of List-I which deals with laying

down standards in institutions for higher education or

research and scientific and technical institutions as also

co-ordination of such standards. A State has, therefore,

the right to control education including medical education

so long as the field is not occupied by any Union

Legislation. Secondly, the State cannot, while controlling

education in the State, impinge on standards in institutions

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for higher education. Because this is exclusively within

the purview of the Union Government. Therefore, while

prescribing the criteria for admission to the institutions

for higher education including higher medical education, the

State cannot adversely affect the standards laid down by the

Union of India under Entry 66 of List-I. Secondly, while

considering the cases on the subject it is also necessary to

remember that from 1977 education including, inter alia,

medical and university education, is now in the Concurrent

List so that the Union can legislate on admission criteria

also. If it does so, the State will not be able to

legislate in this field, except as provided in Article 254.

It would not be correct to say that the norms for

admission have no connection with the standard of education,

or that the rules for admission are covered only by Entry 25

of List III. Norms of admission can have a direct impact on

the standards of education. Of course, there can be rules

for admission which are consistent with or do not affect

adversely the standards of education prescribed by the Union

in exercise of powers under Entry 66 of List-I. For

example, a State may, for admission to the post-graduate

medical courses, lay down qualifications in addition to

those prescribed under Entry 66 of List-I. This would be

consistent with promoting higher standards for admission to

the higher educational courses. But any lowering of the

norms laid down can, and do have an adverse effect on the

standards of education in the institutes of higher

education. Standards of education in an institution or

college depend on various factors. Some of these are:

(1) The calibre of the teaching staff; (2) A proper

syllabus designed to achieve a high level of education in

the given span of time; (3) The student-teacher ratio; (4)

The ratio between the students and the hospital beds

available to each student; (5) The calibre of the students

admitted to the institution; (6) Equipment and laboratory

facilities, or hospital facilities for training in the case

of medical colleges; (7) Adequate accommodation for the

college and the attached hospital; and (8) The standard of

examinations held including the manner in which the papers

are set and examined and the clinical performance is judged.

While considering the standards of education in any

college or institution, the calibre of students who are

admitted to that institution or college cannot be ignored.

If the students are of a high calibre, training programmes

can be suitably moulded so that they can receive the maximum

benefit out of a high level of teaching. If the calibre of

the students is poor or they are unable to follow the

instructions being imparted, the standard of teaching

necessarily has to be lowered to make them understand the

course which they have undertaken; and it may not be

possible to reach the levels of education and training which

can be attained with a bright group. Education involves a

continuous interaction between the teachers and the

students. The pace of teaching, the level to which teaching

can rise and the benefit which the students ultimately

receive, depend as much on the calibre of the students as on

the calibre of the teachers and the availability of adequate

infrastructural facilities. That is why a lower

student-teacher ratio has been considered essential at the

levels of higher university education, particularly when the

training to be imparted is highly professional training

requiring individual attention and on-hand training to the

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pupils who are already doctors and who are expected to treat

patients in the course of doing their post-graduate courses.

The respondents rely upon some observations in some of

the judgments of this Court in support of their stand that

it is for the State to lay down the rules and norms for

admission; and that these do not have any bearing on the

standard of education. In P. Rajendran v. State of Madras

& Ors. ([1968] 2 SCR 786), a Constitution Bench of this

Court considered the validity under Articles 14 and 15(1),

of district- wise reservations made for seats in the medical

colleges. In that case, the Act in question prescribed

eligibility and qualifications of candidates for admission

to the medical colleges. The Court observed, "So far as

admission is concerned, it has to be made by those who are

in control of the colleges - in this case, the Government.

Because the medical colleges are Government colleges

affiliated to the university. In these circumstances, the

Government was entitled to frame rules for admission to

medical colleges controlled by it, subject to the rules of

the university as to eligibility and qualifications. This

was what was done in these cases and, therefore, the

selection cannot be challenged on the ground that it was not

in accordance with the University Act and the rules framed

thereunder." This Court, therefore, upheld the additional

criteria framed by the State for admission which were not

inconsistent with the norms for admission laid down by the

University Act. Since these additional qualifications did

not diminish the eligibility norms under the University Act,

this Court upheld the additional criteria laid down by the

state as not affecting the standards laid down by the

University Act. The question of diluting the standards laid

down, did not arise.

The respondents have emphasised the observation that

admission has to be made by those who are in control of the

colleges. But, the question is, on what basis? Admissions

must be made on a basis which is consistent with the

standards laid down by a statute or regulation framed by the

Central Government in the exercise of its powers under Entry

66, List I. At times, in some of the judgments, the words

"eligibility" and "qualification" have been used

interchangeably, and in some cases a distinction has been

made between the two words ? "eligibility" connoting the

minimum criteria for selection that may be laid down by the

University Act or any Central Statute, while

"qualifications" connoting the additional norms laid down by

the colleges or by the State. In every case the minimum

standards as laid down by the Central Statute or under it,

have to be complied with by the State while making

admissions. It may, in addition, lay down other additional

norms for admission or regulate admissions in the exercise

of its powers under Entry 25 List III in a manner not

inconsistent with or in a manner which does not dilute the

criteria so laid down.

In Chitra Ghosh & Anr. v. Union of India & Ors.

([1970] 1 SCR 413), the Constitution Bench of this Court

considered, inter alia, reservation of nine seats for the

nominees of the Government of India in a Government Medical

College under Article 14 of the Constitution. This Court

upheld the reservation as a reasonable classification under

Article 14 on the ground that the candidates for these seats

had to be drawn from different sources and it would be

difficult to have uniformity in the matter of selection from

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amongst them. The background and the course of studies

undertaken by these candidates would be different and

divergent and, therefore, the Central Government was the

appropriate authority which could make a proper selection

out of these categories. The questions before us, did not

arise in that case.

In the State of Andhra Pradesh & Ors. v. Lavu

Narendranath & Ors. etc. ([1971] 3 SCR 699), this Court

considered the validity of a test held by the State

Government for admission to medical colleges in the State of

Andhra Pradesh. The Andhra University Act, 1926 prescribed

the minimum qualification of passing HSC, PUC, I.S.C. etc.

examinations for entry into a higher course of study. The

Act, however, did not make it incumbent upon the Government

to make their selection on the basis of the marks obtained

by the candidates at these qualifying examinations. Since

the seats for the MBBS course were limited, the Government,

which ran the medical colleges, had a right to make a

selection out of the large number of candidates who had

passed the HSC, PUC or other prescribed examinations. For

this purpose the State Government prescribed an entrance

test of its own and also prescribed a minimum 50% of marks

at the qualifying examination of HSC, ISC, PUC etc. for

eligibility to appear at the entrance test. The Court said

that merely because the Government supplemented the

eligibility rules by a written test in the subjects with

which the candidates were already familiar, there was

nothing unfair in the test prescribed. Nor did the test

militate against the powers of Parliament under Entry 66 of

List-I. Entry 66 List-I is not relatable to a screening

test prescribed by the Government or by a university for

selection of students from out of a large number applying

for admission to a particular course of study.

Therefore, this Court considered the entrance test

held by the State in that case as not violating Entry 66 of

List-I because the statutory provisions of the Andhra

University Act were also complied with and the test was not

inconsistent with those provisions. Secondly, in that case

the Court viewed the test as not in substitution of the HSC,

PUC, ISC or other such examination, but in addition to it,

for the purpose of proper selection from out of a large

number of students who had applied.

This latter observation is relied upon by the State of

Madhya Pradesh in support of its contention that the

additional test which the State may prescribe is only for

better selection. Therefore, it is not necessary to lay

down minimum qualifying marks in the additional test. Lavu

Narendranath (supra), however, does not lay down that it is

permissible not to have minimum qualifying marks in the

entrance test prescribed by the State; nor does it lay down

that every test prescribed by the State must necessarily be

viewed as only for the screening of candidates. On the

facts before it, the Court viewed the test as only a

screening test for proper selection from amongst a large

number of candidates.

On the facts before us, the PGMEE is not just a

screening test. Candidates who have qualified from

different universities and in courses which are not

necessarily identical, have to be assessed on the basis of

their relative merit for the purpose of admission to a

post-graduate course. It is for proper assessment of

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relative merit of candidates who have taken different

examinations from different universities in the State that a

uniform entrance test is prescribed. Such a test

necessarily partakes of the character of an eligibility test

as also a screening test. In such a situation, minimum

qualifying marks are necessary. The question of minimum

qualifying marks is not addressed at all in Levu

Narendranath (supra) since it did not arise in that case.

In Dr. Ambesh Kumar v. Principal, L.L.R.M. Medical

College, Meerut and Ors. ([1986] Supp. SCC 543), a State

order prescribed 55% as minimum marks for admission to

post-graduate medical courses. The Court considered the

question whether the State can impose qualifications in

addition to those laid down by the Medical Council of India

and the Regulations framed by the Central Government. The

Court said that any additional or further qualifications

which the State may lay down would not be contrary to Entry

66 of List-I since additional qualifications are not in

conflict with the Central Regulations but are designed to

further the objective of the Central Regulation which is to

promote proper standards. The Court said, (at page 552)

"The State Government by laying down the eligibility

qualification, namely, the obtaining of certain minimum

marks in the M.B.B.S. examination by the candidates has not

in any way encroached upon the Regulations made under the

Indian Medical Council Act nor does it infringe the central

power provided in the Entry 66 of List-I of the Seventh

Schedule to the Constitution. The order merely provides an

additional eligibility qualification." None of these

judgments lays down that any reduction in the eligibility

criteria would not impinge on the standards covered by Entry

66 of List-I. All these judgments dealt with additional

qualifications ? qualifications in addition to what was

prescribed by the Central Regulations or Statutes.

There are, however, two cases where there are

observations to the contrary. One is the case of the State

of Madhya Pradesh & Anr. v. Kumari Nivedita Jain & Ors.

([1981] 4 SCC 296), a judgment of a Bench of three judges.

In this case the Court dealt with admission to the M.B.B.S.

course in the medical colleges of the State of Madhya

Pradesh. The Rules framed by the State provided for a

minimum of 50% as qualifying marks for the general category

students for admission to the medical colleges of the State.

But for the Scheduled Castes and the Scheduled Tribes the

minimum qualifying marks were prescribed as 40%. Later on,

the minimum qualifying marks for the Scheduled Castes and

the Scheduled Tribes were reduced to 0. The Court observed,

(paragraph 17) "That it was not in dispute and it could not

be disputed that the order in question was in conflict with

the provisions contained in Regulation 2 of the Regulations

framed by the Indian Medical Council." But it held that

Entry 66 of List-I would not apply to the selection of

candidates for admission to the medical colleges because

standards would come in after the students were admitted.

The Court also held that Regulation 2 of the Regulations for

admission to MBBS courses framed by the Indian Medical

Council, was only recommendatory. Hence any relaxation in

the rules of selection made by the State Government was

permissible. We will examine the character of the

Regulations framed by the Medical Council of India a little

later. But we cannot agree with the observations made in

that judgment to the effect that the process of selection of

candidates for admission to a medical college has no real

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impact on the standard of medical education; or that the

standard of medical education really comes into the picture

only in the course of studies in the medical colleges or

institutions after the selection and admission of

candidates. For reasons which we have explained earlier,

the criteria for the selection of candidates have an

important bearing on the standard of education which can be

effectively imparted in the medical colleges. We cannot

agree with the proposition that prescribing no minimum

qualifying marks for admission for the Scheduled Castes and

the Scheduled Tribes would not have an impact on the

standard of education in the medical colleges. Of course,

once the minimum standards are laid down by the authority

having the power to do so, any further qualifications laid

down by the State which will lead to the selection of better

students cannot be challenged on the ground that it is

contrary to what has been laid down by the authority

concerned. But the action of the State is valid because it

does not adversely impinge on the standards prescribed by

the appropriate authority. Although this judgment is

referred to in the Constitution Bench judgment of Indra

Sawhney & Ors. v. Union of India & Ors. (supra) the

question of standards being lowered at the stage of

post-graduate medical admissions was not before the court

for consideration. The court merely said that since Article

16 was not applicable to the facts in Kumari Nivedita Jain's

case (supra), Article 335 was not considered there. Fort

post- graduate medical education, where the "students" are

required to discharge duties as doctors in hospitals, some

of the considerations underlying Articles 16 and 335 would

be relevant as hereinafter set out. But that apart, it

cannot be said that the judgment in Nivedita Jain is

approved in all its aspects by Indra Sawhney v. Union of

India.

The other case where a contrary view has been taken is

Ajay Kumar Singh & Ors. v. State of Bihar & Ors. ([1994]

4 SCC 401) decided by a Bench of three Judges. It also

held, following Kumari Nivedita Jain & Ors.(supra) (at page

417) that "Entry 66 in List-I does not take in the selection

of candidates or regulation of admission to institutes of

higher education. Because standards come into the picture

after admissions are made." For reasons stated above we

disagree with these findings.

In this connection, our attention is also drawn to the

emphasis placed in some of the judgments on the fact that

since all the candidates finally appear and pass in the same

examination, standards are maintained. Therefore, rules for

admission do not have any bearing on standards. In Ajay

Kumar Singh & Ors. v. State of Bihar & Ors. (supra) this

Court, relying on Kumari Nivedita Jain (supra), said that

everybody has to take the same post-graduate examination to

qualify for a post-graduate degree. Therefore, the

guarantee of quality lies in everybody passing the same

final examination. The quality is guaranteed at the exit

stage. Therefore, at the admission stage, even if students

of lower merit are admitted, this will not cause any

detriment to the standards. There are similar observations

in Post Graduate Institute of Medical Education & Research,

Chandigarh & Ors. v. K.L. Narasimhan & Anr. (supra).

This reasoning cannot be accepted. The final pass marks in

an examination indicate that the candidate possesses the

minimum requisite knowledge for passing the examination. A

pass mark is not a guarantee of excellence. There is a

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great deal of difference between a person who qualifies with

the minimum passing marks and a person who qualifies with

high marks. If excellence is to be promoted at post-

graduate levels, the candidates qualifying should be able to

secure good marks while qualifying. It may be that if the

final examination standard itself is high, even a candidate

with pass marks would have a reasonable standard.

Basically, there is no single test for determining

standards. It is the result of a sum total of all the

inputs - calibre of students, calibre of teachers, teaching

facilities, hospital facilities, standard of examinations

etc. that will guarantee proper standards at the stage of

exit. We, therefore, disagree with the reasoning and

conclusion in Ajay Kumar Singh & Ors. v. Stage of Bihar &

Ors. (supra) and Post Graduate Institute of Medical

Education & Research, Chandigarh & Ors. v. K.L.

Narasimhan & Anr. (supra).

The Indian Medical Council Act, 1956 and standards:

Has the Union Government, by Statute or Regulations

laid down the standards at the post-graduate level in

medicine in the exercise of its legislative powers under

Entry 66, List I? the appellants/petitioners rely upon the

Indian Medical Council Act, 1956 and the Regulations framed

under it. The respondents contend that, in fact, no

standards have been laid down by the Medical Council of

India. Also the standards laid down are only directory and

not mandatory.

Now, one of the objects and reasons contained in the

Statement of Objects and Reasons accompanying the Indian

Medical Council Act of 1956 is:".................(d) to

provide for the formation of a Committee of Post-Graduate

Medical Education for the purpose of assisting the Medical

Council of India in prescribing standards of post-graduate

medical education for the guidance of universities and to

advice universities in the matter of securing uniform

standards of post-graduate medical education throughout

India." Section 20 of the Indian Medical Council Act, 1956

deals with post-graduate medical education. The relevant

provisions under Section 20 are as follows:-

"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 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 medical

education committee).

(2).............

(3).............

(4).............

(5) The views and recommendations of the postgraduate

committee on all matters shall be placed before the Council;

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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."

Section 33 of the Act gives to the Council the power

to make regulations generally to carry out the purposes of

the Act with the previous sanction of the Central

Government. It provides that without prejudice to the

generality of this power such Regulations may provide, under

Section 33(j) for 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, and under Section

33(l) for the conduct of professional examinations,

qualifications of examiners and the conditions of admission

to such examinations.

Pursuant to its power to frame Regulations the Medical

Council of India has framed Regulations on Post-Graduate

Medical Education which have been approved by the Government

of India under Section 33 of the Indian Medical Council Act,

1956. These regulations which have been framed on the

recommendations of the Post-Graduate Medical Education

Committee prescribe in extenso the courses for post-graduate

medical education, the facilities to be provided and the

standards to be maintained. After setting out the various

courses, both degree and diploma, available for

post-graduate medical education, the Regulations contain

certain general provisions/conditions some of which need to

be noted. Condition 4 deals with the student-teacher ratio.

It says:

"The student-teacher ratio should be such that the

number of post-graduate teachers to the number of

post-graduate students admitted per year, be maintained at

one to one.

For the proper training of the post- graduate students

there should be a limit to the number of students admitted

per year. For this purpose every unit should consist of at

least three full time post-graduate teachers and can admit

not more than three students for post- graduate training per

year. If the number of post-graduate teachers in the unit

is more than three then the number of students can be

increased proportionately. For this purpose, one student

should associate with one post- graduate teacher".

Condition 5 says:

"The selection of post-graduates both for degree and

diploma courses should be strictly on the basis of academic

merit."

Condition 6 is as follows:-

"Condition 6: The training of post-graduates for

degree should be of the residency pattern with patient care.

Both the in-service candidates and the stipendaries should

be given similar clinical responsibility .............".

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Under the heading "facilities for post-graduate

students" clause (1) provides as follows:-

"Clause (1): There would be two types of post-

graduate students:

(a) Those holding posts in the same Department like

Resident, Registrar, Demonstrator etc. Adequate number of

paid posts should be created for this purpose.

(b) Those receiving stipends. The stipends should

normally be Rupees 300/- per month payable for the duration

of the course."

Under the heading "criteria for the selection of

candidates" Clause (a) is as follows:-

"(a) Students for post-graduate training should be

selected strictly on merit judged on the basis of academic

record in the under-graduate course. All selection for

post-graduate studies should be conducted by the

Universities."

Under the heading "Evaluation of merit" it is provided

as follows:-

"The Post-graduate Committee was of the opinion that

in order to determine the merit of a candidate for admission

to post-graduate medical courses, (i) his performance at the

M.B.B.S. examinations, (ii) his performance during the

course of internship and housemanship for which a daily

assessment chart be maintained and (iii) the report of the

teachers which is to be submitted periodically may be

considered.

Alternatively the authorities concerned may conduct

competitive entrance examination to determine the merit of a

candidate for admission to post-graduate medical courses."

Under the heading "Methods of training" it is, inter

alia, provided:

".............The in-service training requires the

candidate to be a resident in the campus and should be given

graded responsibility in the management and treatment of

patients entrusted to his care. Adequate number of post of

clinical residents or tutors should be created for this

purpose."

Mr. Salve, learned counsel appearing for the Medical

Council of India has, therefore, rightly submitted that

under the Indian Medical Council Act of 1956 the Indian

Medical Council is empowered to prescribe, inter alia,

standards of post-graduate medical education. In the

exercise of its powers under Section 20 read with Section 33

the Indian Medical Council has framed Regulations which

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govern post-graduate medical education. These Regulations,

therefore, are binding and the States cannot, in the

exercise of power under Entry 25 of List-III, make rules and

regulations which are in conflict with or adversely impinge

upon the Regulations framed by the Medical Council of India

for post- graduate medical education. Since the standards

laid down are in the exercise of the power conferred under

Entry 66 of List-I, the exercise of that power is

exclusively within the domain of the Union Government. The

power of the States under Entry 25 of List-III is subject to

Entry 66 of List-I.

Secondly, it is not the exclusive power of the State

to frame rules and regulations pertaining to education since

the subject is in the Concurrent List. Therefore, any power

exercised by the State in the area of education under Entry

25 of List-III will also be subject to any existing relevant

provisions made in that connection by the Union Government

subject, of course, to Article 254.

In Ajay Kumar Singh & Ors. v. State of Bihar & Ors.

(supra), this Court examined the powers of the Indian

Medical Council under Section 20 of the Indian Medical

Council Act, 1956 and held that the power of the Council to

prescribe standards of post-graduate medical education under

Section 20 are only for the guidance of the universities.

Since Section 20 also refers to the power of the Council to

advice universities in the matter of securing uniform

standards for post-graduate medical education throughout

India, the Court said that the entire power under Section 20

was purely advisory. Therefore, the power of the Indian

Medical Council to prescribe the minimum standards of

medical education at the post- graduate level was only

advisory in nature and not of a binding character (page

415).

We do not agree with this interpretation put on

Section 20 of the Indian Medical Council Act, 1956. Section

20(1) (set out earlier) is in three parts. The first part

provides that the Council may prescribe standards of

post-graduate medical education for the guidance of

universities. The second part of sub-section(1) says that

the Council may advise universities in the matter of

securing uniform standards for post-graduate medical

education throughout. The last part of sub- section (1)

enables the Central Government to constitute from amongst

the members of the Council, a post-graduate medical

education committee. The first part of sub-section(1)

empowers the Council to prescribe standards of post-graduate

medical education for the guidance of universities.

Therefore, the universities have to be guided by the

standards prescribed by the Medical Council and must shape

their programmes accordingly. The scheme of the Indian

Medical Council Act, 1956 does not give an option to the

universities to follow or not to follow the standards laid

down by the Indian Medical Council. For example, the

medical qualifications granted by a university or a medical

institution have to be recognised under the Indian Medical

Council Act, 1956. Unless the qualifications are so

recognised, the students who qualify will be not be able to

practice. Before granting such recognition, a power is

given to the Medical Council under Section 16 to ask for

information as to the courses of study and examinations.

The universities are bound to furnish the information so

required by the Council. The post-graduate medical

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committee is also under Section 17, entitled to appoint

medical inspectors to inspect any medical institution,

college, hospital or other institution where medical

education is given or to attend any examination held by any

university or medical institution before recommending the

medical qualification granted by that university or medical

institution. Under Section 19, if a report of the Committee

is unsatisfactory the Medical Council may withdraw

recognition granted to a medical qualification of any

medical institution or university concerned in the manner

provided in Section 19. Section 19A enables the Council to

prescribe minimum standards of medical education required

for granting recognised medical qualifications other than

post-graduate medical qualifications by the universities or

medical institutions, while Section 20 gives a power to the

Council to prescribe minimum standards of post-graduate

medical education. The universities must necessarily be

guided by the standards prescribed under Section 20(1) if

their degrees or diplomas are to be recognised under the

Medical Council of India Act. We, therefore, disagree with

and overrule the finding given in Ajay Kumar Singh & Ors.

v. State of Bihar & Ors. (supra), to the effect that the

standards of post-graduate medical education prescribed by

the Medical Council of India are merely directory and the

universities are not bound to comply with the standards so

prescribed.

In State of Madhya Pradesh & Anr. v. Kumari Nivedita

Jain & Ors. (supra), the provisions of Indian Medical

Council Act and the regulations framed for under-graduate

medical courses were considered by the Court. The Court

said that while regulation 1 was mandatory, regulation 2 was

only recommendatory and need not be followed. We do not

agree with this line of reasoning for the reasons which we

have set out above.

In the case of Medical Council of India v. State of

Karnataka & Ors. ([1998] 6 SCC 131) a bench of three judges

of this Court has distinguished the observations made in

Kumari Nivedita Jain (supra). It has also disagreed with

Ajay Kumar Singh & Ors. v. State of Bihar & Ors (supra)

and has come to the conclusion that the Medical Council

Regulations have a statutory force and are mandatory. The

Court was concerned with admissions to the M.B.B.S. course

and the Regulations framed by the Indian Medical Council

relating to admission to the M.B.B.S. course. The Court

took note of the observations in State of Kerala v. Kumari

T.P. Roshana & Anr. ([1979] 1 SCC 572 at page 580) to the

effect that under the Indian Medical Council Act, 1956, the

Medical Council of India has been set up as an expert body

to control the minimum standards of medical education and to

regulate their observance. It has implicit power to

supervise the qualifications or eligibility standards for

admission into medical institutions. There is, under the

Act an overall vigilance by the Medical Council to prevent

sub-standard entrance qualifications for medical courses.

These observations would apply equally to post-graduate

medical courses. We are in respectful agreement with this

reasoning.

The Regulations governing post-graduate medical

education already referred to earlier, provide for admission

on the basis of merit. The Regulations, however, have not

clearly spelt out whether there can or cannot be, any

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reservations for Scheduled Castes, Scheduled Tribes and/or

backward class candidates at the stage of post-graduate

medical admissions. Whether such a reservation would

impinge on the standards or not would depend upon the manner

in which such reservation is made, and whether the minimum

qualifying marks for the reserved categories are properly

fixed or not. It is for the Medical Council of India to lay

down proper norms in this area and to prescribe whether the

minimum qualifying marks for the admission of students in

the reserved category can be less than the minimum

qualifying marks for the general category students at the

post-graduate level; and if so, to what extent. Even if we

accept the contention of the respondents that for the

reserved category candidates also, their inter se merit is

the criterion for selection, although for the reserved

category of candidates lower minimum qualifying marks are

prescribed, the merit which is envisaged under the Indian

Medical Council Act or its Regulations is comparative merit

for all categories of candidates. For admission to a

post-graduate course in medicine, the merit criterion cannot

be so diluted by the State as to affect the standards of

post-graduate medical education as prescribed under the

Regulations framed by the Indian Medical Council. It is for

the Indian Medical Council to consider whether lower minimum

qualifying marks can be prescribed at the post-graduate

level for the reserved category candidates. We have already

opined that the minimum qualifying marks of 20% as compared

to 45% for the general category candidates appear to be too

low. This would make it difficult for the reserved category

candidates to bring their performance on a par with general

category candidates in the course of post-graduate studies

and before they qualify in the post-graduate examination.

It is also necessary in public interest to ensure that the

candidates at the post- graduate level have not just passed

the examination, but they have profited from their studies

in a manner which makes them capable of making their own

contribution, that they are capable of diagnosing difficult

medical conditions with a certain degree of expertise, and

are capable of rendering to the ill, specialised services of

a certain acceptable standard expected of doctors with

specialised training.

The States of U.P. and Madhya Pradesh have contended

that if the minimum qualifying marks are raised in the case

of the reserved category candidates, they will not be able

to fill all the seats which are reserved for them. The

purpose, however, of higher medical education is not to fill

the seats which are available by lowering standards; nor is

the purpose of reservation at the stage of post-graduate

medical education merely to fill the seats with the reserved

category candidates. The purpose of reservation, if

permissible at this level, is to ensure that the reserved

category candidates having the requisite training and

calibre to benefit from post-graduate medical education and

rise to the standards which are expected of persons

possessing post- graduate medical qualification, are not

denied this opportunity by competing with general category

candidates. The general category candidates do not have any

social disabilities which prevent them from giving of their

best. The special opportunity which is provided by

reservation cannot, however, be made available to those who

are substantially below the levels prescribed for the

general category candidates. It will not be possible for

such candidates to fully benefit from the very limited and

specialised post-graduate training opportunities which are

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designed to produce high calibre well trained professionals

for the benefit of the public. Article 15(4) and the spirit

of reason which permeates it, do not permit lowering of

minimum qualifying marks at the post-graduate level to 20%

for the reserved category as against 45% for the general

category candidates. It will be for the Medical Council of

India to decide whether such lowering is permissible and if

so to what extent. But in the meanwhile at least the norms

which are prescribed for admission to the M.B.B.S. courses

ought not to be lowered at the post-graduate level. The

lowering of minimum qualifying marks for admission to the

M.B.B.S. courses has been permitted by the Indian Medical

Council upto 35% for the reserved category as against 45%

for the general category. The marks cannot be lowered

further for admission to the post-graduate medical courses,

especially when at the super speciality level it is the

unanimous view of all the judgments of this Court that there

should be no reservations. This would also imply that there

can be no lowering of minimum qualifying marks for any

category of candidates at the level of admission to the

super-specialities courses.

In Mohan Bir Singh Chawla v. Punjab University,

Chandigarh & Anr. (supra) also this Court has taken the

view that the higher you go the less should be the extent of

reservation or weightage and it would be dangerous to

depreciate merit and excellence at the highest levels. In

S. Vinod Kumar & Anr. v. Union of India & Ors. ([1996] 6

SCC 580) this Court while considering Articles 16(4) and 335

held that for the purpose of promotion lower qualifying

marks for the reserved category candidates were not

permissible. Dr. Sadhna Devi & Ors. v. State of U.P. &

Ors. (supra) has rightly prescribed minimum qualifying

marks for the common entrance examination for post-graduate

medical courses. The Court left open the question whether

there could be any reservation at the post- graduation level

and to what extent lesser qualifying marks could be

prescribed, assuming the reservations can be made. As we

have said earlier, these are matters essentially of laying

down appropriate standards and hence to be decided by the

Medical Council of India. However, the disparity in the

minimum qualifying marks cannot be substantial.

In Post Graduate Institute of Medical Education &

Research, Chandigarh and Ors. v. K.L. Narasimhan & Anr.

([1997] 6 SCC 283) there are observations to the effect that

the reservation of seats at the post-graduate and doctoral

courses in medicine would not lead to loss of efficiency and

would be permissible under Article 15(4). There are also

observations to the effect that since all appear for the

same final examination, there is no downgrading of

excellence. These observations, in our view, cannot be

accepted for reasons set out earlier. The judgment of the

Court in Post Graduate Institute of Medical Education &

Research, Chandigarh and Ors. v. K.L. Narasimhan & Anr.

(supra) in so far as it lays down these propositions is

overruled.

In the premises, we agree with the reasoning and

conclusion in Dr. Sadhna Devi & Ors. v. State of U.P. &

Ors. (supra) and we overrule the reasoning and conclusions

in Ajay Kumar Singh & Ors. v. State of Bihar & Ors.

(supra) and Post Graduate Institute of Medical Education &

Research, Chandigarh and Ors. v. K.L. Narasimhan & Anr.

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(supra). To conclude:

1. We have not examined the question whether

reservations are permissible at the post-graduate level of

medical education;

2. A common entrance examination envisaged under the

Regulations framed by the Medical Council of India for

post-graduate medical education requires fixing of minimum

qualifying marks for passing the examination since it is not

a mere screening test.

3. Whether lower minimum qualifying marks for the

reserved category candidates can be prescribed at the

post-graduate level of medical education is a question which

must be decided by the Medical Council of India since it

affects standards of post-graduate medical education. Even

if minimum qualifying marks can be lowered for the reserved

category candidates, there cannot be a wide disparity

between the minimum qualifying marks for the reserved

category candidates and the minimum qualifying marks for the

general category candidates at this level. The percentage

of 20% for the reserved category and 45% for the general

category is not permissible under Article 15(4), the same

being unreasonable at the post-graduate level and contrary

to public interest.

4. At the level of admission to the super speciality

courses, no special provisions are permissible, they being

contrary to national interest. Merit alone can be the basis

of selection.

In the premises, the impugned Uttar Pradesh Post

Graduate Medical Education (Reservation for Scheduled

Castes, Scheduled Tribes and other Backward Classes) Act,

1997 and G.O. dated 7.6.1997 of the State of Madhya Pradesh

are set aside. However, students who have already taken

admission and are pursuing courses of post-graduate medical

study under the impugned Act/G.O. will not be affected.

Our judgment will have prospective application. Further,

pending consideration of this question by the Medical

Council of India, the two States may follow the norms laid

down by the Medical Council of India for lowering of marks

for admission to the under-graduate M.B.B.S. medical

courses, at the post-graduate level also as a temporary

measure until the norms are laid down. This, however, will

not be treated as our having held that such lowering of

marks will not lead to a lowering of standards at the post-

graduate level of medical education. Standards cannot be

lowered at this level in public interest. This is a matter

to be decided by an expert body such as the Medical Council

of India assisted by its Post- Graduate Medical Education

Committee in accordance with law.

I.A. No.2 in WP(C) No.679 of 1995, Writ Petition

Nos.290 of 1997, 300 of 1997, C.A. No........of 1999

(Arising out of SLP(C) No.12231 of 1997) and Writ Petition

(C) No.350 of 1998 are disposed of accordingly.

Review Petition Nos.2371-72 of 1997 in CA

Nos.3176-77/97

Normally the power to review is used by us sparingly

to correct errors apparent on the face of the record. In

the judgment sought to be reviewed, however, there are

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observations which are so widely worded that they may create

mischief or national detriment. We would, therefore, like

to clarify the position regarding admissions to the super

specialities in medicine. In Post Graduate Institute of

Medical Education & Research, Chandigarh and Ors. v. K.L.

Narasimhan & Anr. ([1997] 6 SCC 283), which is the judgment

in question, it was, inter alia, held that there could be

reservation of seats for the Scheduled Castes and Scheduled

Tribes at post-graduate levels or doctoral levels in

medicine and that such reservations would not lead to a loss

of efficiency and are permissible under Article 15(4).

In the group of civil appeals decided by Post Graduate

Institute of Medical Education & Research, Chandigarh and

Ors. v. K.L. Narasimhan & Anr. (supra), the appeal of

the present petitioners had challenged an Admission Notice

No.15/90 issued in the Indian Express of 25.11.1990, under

which six seats for the super speciality courses of

D.M./M.C.H. were kept reserved for the Scheduled Caste and

the Scheduled Tribe candidates. The petitioners rightly

contend that at the super speciality level there cannot be

any relaxation in favour of any category of candidates.

Admissions should be entirely on the basis of open merit.

The ambit of special provisions under Article 15(4)

has already been considered by us. While the object of

Article 15(4) is to advance the equality principle by

providing for protective discrimination in favour of the

weaker sections so that they may become stronger and be able

to compete equally with others more fortunate, one cannot

also ignore the wider interests of society while devising

such special provisions. Undoubtedly, protective

discrimination in favour of the backward, including

scheduled castes and scheduled tribes is as much in the

interest of society as the protected groups. At the same

time, there may be other national interests, such as

promoting excellence at the highest level and providing the

best talent in the country with the maximum available

facilities to excel and contribute to society, which have

also to be borne in mind. Special provisions must strike a

reasonable balance between these diverse national interests.

In the case of Dr. Jagdish Saran & Ors. v. Union of

India (supra) this Court observed that at the highest scales

of speciality, the best skill or talent must be hand-picked

by selection according to capability. Losing a potential

great scientist or technologist would be a national loss.

That is why the Court observed that the higher the level of

education the lesser should be the reservation. There are

similar observations in Dr. Pradeep Jain & Ors. v. Union

of India & Ors. (supra). Undoubtedly, Dr. Pradeep Jain &

Ors. v. Union of India & Ors. (supra) did not deal with

reservation in favour of the Scheduled Castes and the

Scheduled Tribes. It dealt with reservation in favour of

residents and students of the same university. Nevertheless

it correctly extended the principle laid down in Dr.

Jagdish Saran & Ors. v. Union of India (supra) to these

kinds of reservation also, holding that at the highest

levels of medical education excellence cannot be compromised

to the detriment of the nation. Admissions to the highest

available medical courses in the country at the

super-speciality levels, where even the facilities for

training are limited, must be given only on the basis of

competitive merit. There can be no relaxation at this

level.

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Indra Sawhney & Ors. v. Union of India & Ors.

(supra) has also observed that in certain positions at the

highest level merit alone counts. In specialities and

super-specialities in medicine, merit alone must prevail and

there should not be any reservation of posts. The

observations in Indra Sawhney & Ors. v. Union of India &

Ors.(supra) were in respect of posts in the specialities and

super-specialities in medicine. Nevertheless, the same

principle applies to seats in the specialities and

super-specialities in medicine. Moreover, study and

training at the level of specialities and super-specialities

in medicine involve discharging the duties attached to

certain specified medical posts in the hospitals attached to

the medical institutions giving education in specialities

and super-specialities. Even where no specific posts are

created or kept for the doctors studying for the

super-specialities or specialities, the work which they are

required to do in the hospitals attached to these

institutions is equivalent to the work done by the occupants

of such posts in that hospital. In this sense also, some of

the considerations under Article 16(4) read with Article 335

rub off on admissions of candidates who are given seats for

speciality and super-speciality courses in medicine. Even

otherwise under Article 15(4) the special provisions which

are made at this level of education have to be consistent

with the national interest in promoting the highest levels

of efficiency, skill and knowledge amongst the best in the

country so that they can contribute to national progress and

enhance the prestige of the nation. The same view has been

upheld in Dr. Fazal Ghafoor v. Union of India & Ors.

([1988] Supp. SCC 794) and Mohan Bir Singh Chawla v.

Punjab University, Chandigarh, & Anr. ([1997] 2 SCC 171).

The Post-graduate Institute of Medical Education and

Research, Chandigarh, has been set up as an institution of

national importance. The Post-graduate Institute of Medical

Education and Research, Chandigarh Act, 1966, under Section

2 provides that the object of the said institution is to

make the institution one of national importance. Section 12

sets out the objects of the Institute. These are as

follows:-

"Objects of Institute:

The objects of the Institute shall be -

(a) to develop patterns of teaching in under- graduate

and post-graduate medical education in all its branches so

as to demonstrate a high standard of medical education;

(b) to bring together, as far as may be, in one place

educational facilities of the highest order for the training

of personnel in all important branches of health activity;

and

(c) to attain self-sufficiency in post- graduate

medical education to meet the country's needs for

specialists and medical teachers."

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Under Section 13 the functions of the Institute

include providing both under-graduate and post-graduate

teaching, inter alia, in medicine as also facilities for

research, conducting experiments in new methods of medical

education both under-graduate and post-graduate, in order to

arrive at satisfactory standards of such education,

prescribe courses and curricula for both under-graduate and

post-graduate study and to establish and maintain one or

more medical colleges equipped to undertake not only

under-graduate but also post-graduate medical education in

the subject.

Under Section 32 of the said Act, the Post-graduate

Institute of Medical Education and Research, Chandigarh

Regulations, 1967 have been framed. Regulation 27 provides

for 20% of the seats in every course of study in the

Institute to be reserved for candidates belonging to the

Scheduled Castes, Scheduled Tribes or other categories of

persons in accordance with the general orders issued by the

Central Government from time to time. Regulation 27,

however, cannot have any application at the highest level of

super-specialities as this would defeat the very object of

imparting the best possible training to select meritorious

candidates who can contribute to the advancement of

knowledge in the fields of medical research and its

applications. Since no relaxation is permissible at the

highest levels in the medical institutions, the petitioners

are right when they contend that the reservations made for

the Scheduled Caste and the Scheduled Tribe candidates for

admission to D.M. and M.C.H. courses which are

super-speciality courses, is not consistent with the

constitutional mandate under Articles 15(4) and 16(4).

Regulation 27 would not apply at the level of admissions to

D.M. and M.C.H. courses.

We, therefore, hold that the judgment of this Court in

Post Graduate Institute of Medical Education & Research,

Chandigarh and Ors. v. K.L. Narasimhan & Anr. (supra)

cannot be read as holding that any type of relaxation is

permissible at the super-specialities level. The review

petitions are disposed of accordingly.

All the interlocutory applications also stand disposed

of.