1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I A No. 33686 OF 2018

IN

WRIT PETITION (CIVIL) NO. 196 OF 2018

TAMIL NADU MEDICAL OFFICERS

ASSOCIATION AND ORS. .... PETITIONERS

VERSUS

UNION OF INDIA AND ORS ..... RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO. 252 OF 2018

WITH

WRIT PETITION (CIVIL) NO. 295 OF 2018

AND

WITH

WRIT PETITION (CIVIL) NO. 293 OF 2018

2

O R D E R

Dr D Y CHANDRACHUD, J

1 The judgment rendered by a three judge Bench in State of Uttar Pradesh

v Dinesh Singh Chauhan

1

, construed the provisions of Regulations 9(IV) and

9(VII) of the Medical Council of India Post-Graduate Medical Education

Regulations 2000, as amended on 15 February 2012. In the present batch of

cases, a Bench of three Judges opined, by an order dated 13 April 2018, that these

petitions require consideration by a larger Bench.

2 In making this reference, the referring order primarily indicated the following

reasons :

(i) The decision in Dinesh Singh Chauhan has not considered the entries in

the legislative lists of the Seventh Schedule, more particularly Entry 66 of

the Union List and Entry 25 of the Concurrent List;

(ii) The main contention of the petitioners is that while coordination and

determination of standards in institutions for higher education falls within the

exclusive domain of the Union (Entry 66 List I), medical education is a

subject in the Concurrent List (Entry 25 List III). Though, Entry 25 of List III

1

(2016) 9 SCC 749

3

is subject to Entry 66 of List I, the State is not denuded of its power to

legislate on the manner and method of making admissions to post-graduate

medical courses;

(iii) The contentions which have been raised in the present batch of petitions

were not addressed before this Court in Dinesh Singh Chauhan;

(iv) The judgment in Dinesh Singh Chauhan does not consider three decisions

of the Constitution Bench in R Chitralekha v State of Mysore

2

, Kumari

Chitra Ghosh v Union of India

3

and Modern Dental College and

Research Centre v State of Madhya Pradesh

4

; and

(v) There are decisions rendered by Benches of an equal strength as in Dinesh

Singh Chauhan.

3 While making a reference to a larger Bench, the referring order observed

that it would be “appropriate that even the interim relief should be considered by

the larger Bench”. Accordingly, on the directions of the learned Chief Justice, the

proceedings have been placed before the Constitution Bench to consider the

question of interim relief.

4 We have heard Mr Arvind Datar and Mr K V Vishwanathan, learned Senior

Counsel for the petitioners, Mr Aman Lekhi, learned Additional Solicitor General

and Mr A K Sinha, learned Senior Counsel for the Respondents - Union of India,

2

((1964) 6 SCR 368

3

(1969) 2 SCC 228

4

(2016) 7 SCC 353

4

Mr Vikas Singh learned Senior Counsel for the MCI and Mr V Giri, learned Senior

Counsel for the State of Tamil Nadu.

5 In Tamil Nadu Medical Officers Association v Union of India

5

, the

following reliefs have been sought :

“(a) Declare by issuance of a writ of mandamus or any other

suitable writ/order/direction that Regulation 9 of the Post-

Graduate Medical Education Regulations, 2000 (more

particularly, Regulation 9(iv) and 9(vii), does not take away the

power of the States under Entry 25, List III to provide for a

separate source of entry for in-service candidates seeking

admission to Degree Courses;

(b) Alternatively, if Regulation 9 of the Post Graduate Medical

Regulations, 2000 is understood to not allow for States to

provide for a separate source of entry for in-service candidates

seeking admission to Degree Courses, declare by issuance of

a writ of mandamus or any other suitable writ/order/direction,

Regulation 9 (more particularly, Regulations 9(iv) and 9 (vii) as

being arbitrary, discriminatory and violative of Article 14 and

Article 19(1)(g) of the Constitution and also ultra vires the

provisions of the Indian Medical Council Act, 1956;”

6 The interim prayer is that this Court should stay the operation of Regulation

9 of the Post-Graduate Medical Education Regulations 2000, to the extent that it

is deemed to prohibit the states from providing a separate source of entry to in-

service candidates seeking admission to post-graduate degree courses. A

direction has been sought permitting the State of Tamil Nadu to implement its

5

WP (C) No. 196 of 2018

5

policy of providing for a separate source of entry to in-service candidates for

admissions to post-graduate degree courses for academic year 2018-2019.

7 Learned Senior Counsel appearing on behalf of the petitioners submit that

since 1989, the State of Tamil Nadu has had a policy of providing a separate

source of entry to in-service candidates to the extent of 50 per cent of the state’s

seats in degree courses. Further, since 2007 the State of Tamil Nadu has, by a

government order, provided a preferential weightage to those in-service

candidates who have served in rural, hilly and difficult areas. This policy has been

adopted to ensure the provision of adequate healthcare facilities in government

hospitals particularly in rural, hilly and difficult locations. In this backdrop, the

following submissions have been urged :

(i) Though, Entry 25 of List III of the Seventh Schedule to the Constitution

(“education, including..medical education..”) is subject to the provisions of

Entry 66 of State List I (“coordination and determination of standards in

institutions for higher education”), the state is not denuded of its power to

determine the manner or method for making admissions to post-graduate

medical courses;

(ii) The relationship between Entry 66 of List I and Entry 25 of List III has been

considered by three Constitution Bench decisions of this Court in

R Chitralekha, Kumari Chitra Ghosh and Modern Dental College (supra);

6

(iii) In its decisions in K Duraisamy v State of Tamil Nadu

6

, AIIMS Students’

Union v AIIMS

7

and State of M P v Gopal D Tirthani

8

, this Court has upheld

the right of the State Governments to set apart a definite percentage of seats

at the post-graduate level in degree and diploma courses with a separate

source of entry for a defined classes of persons. The exercise of such a power

has been held to be valid so long as it is based on a legitimate classification;

(iv) The classification between in-service doctors in government and others is

reasonable and has a nexus with the object of ensuring adequate and

affordable healthcare facilities in the public sector; and

(v) The interpretation placed on Regulation 9 in Dinesh Singh Chauhan that

reservation for in-service candidates in post-graduate degree courses is not

permissible since it has been provided only for diploma courses under

Regulation 9(VII) requires reconsideration for the following reasons :

(a) There is no express or implied bar in Regulation 9, prohibiting the State

under Entry 25 of List III from providing a separate channel of entry to

in-service candidates. On the contrary, the grant of preference to in-

service candidates is perceived to be a laudable object by virtue of the

proviso to Regulations 9(IV) and 9(VII);

(b) An implied inclusion cannot be inferred in regard to the states providing

reservations for in-service candidates in degree courses merely on the

basis that Regulation 9(VII) provides a reservation for diploma courses;

6

(2001) 2 SCC 538

7

(2002) 1 SCC 428

8

(2003) 7 SCC 83

7

(c) While holding that Regulation 9 is a complete code in itself, the decision

in Dinesh Singh Chauhan has not appropriately dealt with the

decisions in Sudhir N v State of Kerala

9

and Gopal D Tirthani (supra);

(d) Providing a separate source of entry for in-service candidates would not

result in a lowering of standards prescribed by the Medical Council of

India

10

since all eligible candidates would have met the minimum

qualifying marks in the NEET examination and admissions would take

place on the inter se merit of in-service candidates; and

(e) In its decision in Modern Dental College and Research Centre, the

Constitution Bench has observed that a State being responsible for the

welfare and development of its residents, it is the prerogative of the

State to adopt appropriate steps;

(f) Merely providing a weightage for in-service candidates in degree

courses will not ensure that an adequate number of in-service

candidates qualify, having regard to the difficulties faced by such

candidates while working in difficult conditions.

Since counselling in the first round has already taken place, it has been

submitted that interim orders are necessary to ensure that States are

not precluded from providing a separate source of entry to in-service

candidates in post-graduate degree courses.

8 On the other hand, it has been submitted on behalf of the Union of India and

MCI that Entry 25 of List III is expressly subject to Entry 66 of List I. Hence, the

authority of the States under Article 246 to legislate on medical education is subject

9

(2015) 6 SCC 685

10

The MCI

8

to the overriding authority of the Union in matters relating to the coordination and

determination of standards in higher education. Regulation 9 is a complete code

in itself. Regulation 9(iv) provides an incentive to in-service candidates at the rate

of 10 per cent of the marks obtained, for each year of service in remote and/or

difficult areas upto a maximum 30 per cent of the marks obtained in the NEET

examination. MCI, as an expert policy making authority constituted under central

legislation, has formulated statutory regulations under which only incentive marks

can be granted for in-service candidates in post-graduate degree admissions to

medical courses. In the considered view of the Union government and MCI, the

grant of reservations or a separate source of entry for in-service candidates would

directly impinge on the authority of MCI to coordinate and determine standards of

medical education. The decision in Dinesh Singh Chauhan specifically construes

the provisions of the Regulation 9 as amended in 2012. The grant of any interim

relief at this stage cannot be contemplated so long as the three judge Bench

decision holds the field. Prescribing a separate source of entry for in-service

degree candidates would, in the submission of the MCI, directly result in a lowering

of standards in medical education. Merit would be compromised and the

prescription of criteria under Entry 66 of List I would be a casualty.

9 Rule 9, as amended on 15 February 2012, reads as follows :

“9. Procedure for selection of candidate for postgraduate courses

shall be as follows.—

9

(I) There shall be a single eligibility-cum-entrance examination,

namely, “National Eligibility-cum-Entrance Test for admission to

Postgraduate Medical Courses” in each academic year. The

superintendence, direction and control of National Eligibility-

cum-Entrance Test shall vest with National Board of

Examinations under overall supervision of the Ministry of Health

& Family Welfare, Government of India.

(II) 3% seats of the annual sanctioned intake capacity shall be filled

up by candidates with locomotory disability of lower limbs

between 50% to 70%:

Provided that in case any seat in this 3% quota remains

unfilled on account of unavailability of candidates with

locomotory disability of lower limbs between 50% to 70%

then any such unfilled seat in this 3% quota shall be filled

up by persons with locomotory disability of lower limbs

between 40% to 50% before they are included in the

annual sanctioned seats for general categor y

candidates:

Provided further that this entire exercise shall be

completed by each medical college/institution as per the

statutory time schedule for admissions.

(III) In order to be eligible for admission to any postgraduate course

in a particular academic year, it shall be necessary for a

candidate to obtain minimum of marks at 50th percentile in

“National Eligibility-cum-Entrance Test for Postgraduate

courses” held for the said academic year. However, in respect

of candidates belonging to the Scheduled Castes, the

Scheduled Tribes, the Other Backward Classes, the minimum

marks shall be at 40th percentile. In respect of candidates as

provided in clause (II) above with locomotory disability of lower

limbs, the minimum marks shall be at 45th percentile. The

percentile shall be determined on the basis of highest marks

secured in the all-India common merit list in “National Eligibility-

cum-Entrance Test” for postgraduate courses:

Provided when sufficient number of candidates in the respective

categories fail to secure minimum marks as prescribed in

National Eligibility-cum-Entrance Test held for any academic

year for admission to postgraduate courses, the Central

Government in consultation with the Medical Council of India

may at its discretion lower the minimum marks required for

admission to postgraduate course for candidates belonging to

respective categories and marks so lowered by the Central

Government shall be applicable for the said academic year only.

(IV) The reservation of seats in medical colleges/institutions for

respective categories shall be as per applicable laws prevailing

10

in States/Union Territories. An all-India merit list as well as

State-wise merit list of the eligible candidates shall be prepared

on the basis of the marks obtained in National Eligibility-cum-

Entrance Test and candidates shall be admitted to postgraduate

courses from the said merit lists only:

Provided that in determining the merit of candidates who are in

service of Government/public authority, weightage in the marks

may be given by the Government/competent authority as an

incentive at the rate of 10% of the marks obtained for each year

of service in remote and/or difficult areas up to the maximum of

30% of the marks obtained in National Eligibility-cum-Entrance

Test, the remote and difficult areas shall be as defined by the

State Government/competent authority from time to time.

(V) No candidate who has failed to obtain the minimum eligibility

marks as prescribed in clause (II) above shall be admitted to

any postgraduate courses in the said academic year.

(VI) In non-governmental medical colleges/institutions, 50% (fifty

per cent) of the total seats shall be filled by the State

Government or the Authority appointed by them, and the

remaining 50% (fifty per cent) of the seats shall be filled by the

medical colleges/institutions concerned on the basis of the merit

list prepared as per the marks obtained in National Eligibility-

cum-Entrance Test.

(VII) 50% of the seats in postgraduate diploma courses shall

be reserved for medical officers in the government service, who

have served for at least three years in remote and/or difficult

areas. After acquiring the PG diploma, the medical officers shall

serve for two more years in remote and/or difficult areas as

defined by State Government/competent authority from time to

time.

(VIII) The Universities and other authorities concerned shall

organise admission process in such a way that teaching in

postgraduate courses starts by 2nd May and by 1st August for

super specialty courses each year. For this purpose, they shall

follow the time schedule indicated in Appendix III.

(IX) There shall be no admission of students in respect of any

academic session beyond 31st May for postgraduate courses

and 30th September for super specialty courses under any

circumstances. The Universities shall not register any student

admitted beyond the said date.

(X) The Medical Council of India may direct, that any student

identified as having obtained admission after the last date for

closure of admission be discharged from the course of study, or

any medical qualification granted to such a student shall not be

a recognized qualification for the purpose of the Indian Medical

11

Council Act, 1956. The institution which grants admission to any

student after the last date specified for the same shall also be

liable to face such action as may be prescribed by MCI including

surrender of seats equivalent to the extent of such admission

made from its sanctioned intake capacity for the succeeding

academic year.” (Id at pages 764-766)

Entry 66 of List I provides thus :

“66. Coordination and determination of standards in institutions

for higher education or research and scientific and technical

institutions.”

Entry 25 of List III provides thus :

“25. 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.”

10 In Modern Dental College and Research Centre (supra), a Constitution

Bench of this Court held that the expression “coordination and determination of

standards” means laying down standards. Hence, when it comes to prescribing the

standards for institutions of higher learning, the exclusive domain is given to the

Union. Dr Justice A K Sikri speaking for the Constitution Bench held thus :

“102. Most educational activities, including admissions, have two

aspects: the first deals with the adoption and setting up the

minimum standards of education. The objective in prescribing

minimum standards is to provide a benchmark of the calibre and

quality of education being imparted by various educational

institutions in the entire country. Additionally, the coordination of

12

the standards of education determined nationwide is ancillary to

the very determination of standards. Realising the vast diversity

of the nation wherein levels of education fluctuated from lack of

even basic primary education, to institutions of high excellence, it

was thought desirable to determine and prescribe basic minimum

standards of education at various levels, particularly at the level

of research institutions, higher education and technical education

institutions. As such, while balancing the needs of States to impart

education as per the needs and requirements of local and regional

levels, it was essential to lay down a uniform minimum standard

for the nation. Consequently, the Constitution-makers provided for

List I Entry 66 with the objective of maintaining uniform standards

of education in fields of research, higher education and technical

education.” (id at page 430)

Implementing the standards of education determined by Parliament and regulating

the complete activity of education entails the application of the standards so

determined. The balance between Entry 66 of List I and Entry 25 of List III has

been drawn succinctly, on a review of the earlier Constitution Bench decisions,

thus :

“104…In Gujarat University [Gujarat University v. Krishna

Ranganath Mudholkar, AIR 1963 SC 703 : 1963 Supp (1) SCR

112] , a Bench of five Judges examined the scope of List II

Entry 11 (which is now List III Entry 25) with reference to List I

Entry 66. It was held that the power of the State to legislate in

respect of education to the extent it is entrusted to Parliament,

is deemed to be restricted. Coordination and determination of

standards was in the purview of List I and power of the State

was subject to power of the Union on the said subject. It was

held that the two entries overlapped to some extent and to the

extent of overlapping the power conferred by List I Entry 66

must prevail over power of the State. Validity of a State

legislation depends upon whether it prejudicially affects

“coordination or determination of standards”, even in absence

of a Union legislation. In R. Chitralekha v. State of Mysore [R.

Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6

13

SCR 368] , the same issue was again considered. It was

observed that if the impact of the State law is heavy or

devastating as to wipe out or abridge the Central field, it may

be struck down. In State of T.N. v. Adhiyaman Educational &

Research Institute [State of T.N. v. Adhiyaman Educational &

Research Institute, (1995) 4 SCC 104 : 1 SCEC 682] , it was

observed that to the extent that State legislation is in conflict

with the Central legislation under Entry 25, it would be void and

inoperative. To the same effect is the view taken in Preeti

Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC

120 : 1 SCEC 742] and State of Maharashtra v. Sant

Dnyaneshwar Shikshan Shastra Mahavidyalaya [State of

Maharashtra v. Sant Dnyaneshwar Shikshan Shastra

Mahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637] . Though the

view taken in State of M.P. v. Nivedita Jain [State of

M.P. v. Nivedita Jain, (1981) 4 SCC 296] and Ajay Kumar

Singh v. State of Bihar[Ajay Kumar Singh v. State of Bihar,

(1994) 4 SCC 401] to the effect that admission standards

covered by List I Entry 66 could apply only post admissions

was overruled in Preeti Srivastava [Preeti Srivastava v. State

of M.P., (1999) 7 SCC 120 : 1 SCEC 742] , it was not held that

the entire gamut of admissions was covered by List I as

wrongly assumed in Bharati Vidyapeeth [Bharati

Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2

SCEC 535] . (Id at page 431)

The Constitution Bench held that while Entry 25 of List III is subject to Entry 66 of

List I, the entire gamut of admissions is not excluded from the purview of the

statutes. However, the “exercise of any power under List III Entry 25 has to be

subject to a Central law referable to Entry 25”.

11 The provisions of Regulation 9 have been construed by the three judge

Bench decision in Dinesh Singh Chauhan (supra). The decision, it must be

emphasised, has construed the amended provisions of Regulation 9. Regulation

14

9 is held it to be a self-contained code regarding the procedure to be followed for

admissions to medical courses. In that context, it has been held :

“24. By now, it is well established that Regulation 9 is a self-

contained code regarding the procedure to be followed for

admissions to medical courses. It is also well established that the

State has no authority to enact any law much less by executive

instructions that may undermine the procedure for admission to

postgraduate medical courses enunciated by the Central

legislation and regulations framed thereunder, being a subject

falling within Schedule VII List I Entry 66 of the Constitution

(see Preeti Srivastava v. State of M.P. [Preeti Srivastava v. State

of M.P., (1999) 7 SCC 120 : 1 SCEC 742] ). The procedure for

selection of candidates for the postgraduate degree courses is

one such area on which the Central legislation and regulations

must prevail.” (Id at page 766)

The above statement of the law in Dinesh Singh Chauhan is consistent with the

principles which have been reaffirmed by the Constitution Bench in Modern Dental

College and Research Centre. The referring order notes that the decision in

Modern Dental College and Research Centre was published in the reports after

the decision in Dinesh Singh Chauhan. In our view, the fundamental basis of the

three judge Bench decision is in accord with the principles which have been laid

down by the Constitution Bench.

12 While interpreting Regulation 9(IV), Dinesh Singh Chauhan holds that the

reservations referred to in the opening sentence are obviously constitutional

reservations for the Scheduled Castes and Scheduled Tribes and the socially and

15

educationally backward classes of citizens and not those for in-service candidates.

Explaining the proviso to Rule 9 (IV) it has been held :

“25.4…This provision, however, contains a proviso. It

predicates that in determining the merit of candidates who are

in service of the Government or a public authority, weightage

in the marks may be given by the Government/competent

authority as an incentive @ 10% of the marks obtained for each

year of service in specified remote or difficult areas of the State

up to the maximum of 30% of the marks obtained in NEET.

This provision even if read liberally does not provide for

reservation for in-service candidates, but only of giving a

weightage in the form of incentive marks as specified to the

class of in-service candidates (who have served in notified

remote and difficult areas in the State).” (Id at page 767)

This interpretation of the proviso plainly follows the natural and ordinary meaning

of the words used. The proviso to Rule 9(IV) does not contemplate a reservation

for in-service candidates in post-graduate courses but the grant of incentive marks.

Dinesh Singh Chauhan has categorically rejected the submission that there is no

express prohibition on reservations for in-service candidates and hence it would

be permissible for the State Governments to provide them :

“27…As there is no express provision prohibiting reservation

to in-service candidates in respect of admission to

postgraduate “degree” courses, it was contended that

providing for such reservation by the State Government is not

impermissible in law. Further, there are precedents of this

Court to suggest that such arrangement is permissible as a

separate channel of admission for in-service candidates. This

argument does not commend to us. In the first place, the

decisions pressed into service have considered the provisions

regarding admission process governed by the regulations in

force at the relevant time. The admission process in the

present case is governed by the regulations which have come

into force from the academic year 2013-2014. This Regulation

16

is a self-contained code. There is nothing in this Regulation to

even remotely indicate that a separate channel for admission

to in-service candidates must be provided, at least in respect

of postgraduate “degree” courses. In contradistinction,

however, 50% seats are earmarked for the postgraduate

“diploma” courses for in-service candidates, as is discernible

from clause (VII). If the regulation intended a similar separate

channel for in-service candidates even in respect of

postgraduate “degree” courses, that position would have been

made clear in Regulation 9 itself.” (Id at pages 767-768)

13 The judgment has noticed that in framing Regulation 9, reservations have

been provided for in-service candidates of the government in diploma seats.

Where the delegate of the legislature intended to provide reservations, a specific

provision has been made, as in Regulation 9(VII). On the other hand, for post-

graduate degree seats, there is only a prescription of incentive marks in Regulation

9(IV). Noticing that these regulations have been framed by an expert body, it has

been held thus :

“35. As aforesaid, the Regulations have been framed by an

expert body based on past experience and including the

necessity to reckon the services and experience gained by the

in-service candidates in notified remote and difficult areas in

the State. The proviso prescribes the measure for giving

incentive marks to in-service candidates who have worked in

notified remote and difficult areas in the State. That can be

termed as a qualitative factor for determining their merit. Even

the quantitative factor to reckon merit of the eligible in-service

candidates is spelt out in the proviso. It envisages giving of

incentive marks @ 10% of the marks obtained for each year of

service in remote and/or difficult areas up to 30% of the marks

obtained in NEET. It is an objective method of linking the

incentive marks to the marks obtained in NEET by the

candidate.” (Id at page 772)

17

It may be noted that in arriving at this conclusion, the court has taken due note of

the decision of the Constitution Bench in Dr Preeti Srivastava v State of M P

11

as well as of the decisions in Tirthani, AIIMS Students’ Union and Sudhir N

(supra) among other decisions.

14 The decision in Dinesh Singh Chauhan holds the field. It is based on a

construction of Regulation 9(IV) which, at least at the present stage, cannot be

brushed aside. The principle which has been adopted in that decision is consistent

with the primacy which is attributed by the Constitution to Entry 66 of List I. This is

the clear intendment of the words “subject to” in Entry 25 of List III. The grant of

any interim relief at the present stage would amount to a mandatory final order

which cannot be countenanced. MCI has, as an expert body, proceeded on a

principled basis. Any attempt at this stage to read into Regulation 9(IV), a separate

source of entry or a reservation for in-service candidates in degree courses would

impinge upon Entry 66 of List I and the exercise of regulatory powers under the

central statute.

15 For these reasons, we are unable to accede to the prayer for interim relief

which has been urged on behalf of the petitioners. Interim relief is accordingly

refused. We, however, clarify that the counselling which takes place shall

11

(1999) 7 SCC 120

18

ultimately abide by the result of the reference. I.A. No 33686 of 2018 is disposed

of accordingly.

…........................................... CJI

[DIPAK MISRA]

....................................................J

[A K SIKRI]

....................................................J

[A M KHANWILKAR]

.....................................................J

[D Y CHANDRACHUD ]

......................................................J

[ASHOK BHUSHAN ]

New Delhi;

April 24, 2018.