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PETITIONER: DR. SADHNA DEVI & ORS.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       19/02/1997

BENCH: B.P. JEEVAN REDDY, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN, J.      The  petitioners   are  medical   graduates.  They  are desirous of  getting admitted to Post Graduate Courses. Some of the petitioners took the test conducted by the Government of Uttar  Pradesh in  January, 1995  for admission  to  Post Graduate Courses  in Medicine and Surgery. The others wanted to take  the examination  to be  held in January, 1996. They have moved  this Writ  Petition  under  Article  32  of  the Constitution to  challenge  a  notification  issued  by  U.P Government providing for reservation of SC/ST/OBC candidates in Post  Graduate Speciality  and  Super-Speciality  Courses such as  M.D and  M.S.   The main  contention is  that  this notification  violates   the  fundamental   right   of   the petitioners under Articles 14,15 and 21 of the constitution.     It may be noted that a similar Writ Petition was earlier moved challenging  the reservation  of seats  for  SC/ST/OBC candidates  for   admission  to  Post  Graduate  Courses  in Medicine by some other persons. That Writ Petition (W.P. No. 771 of  1994) was  heard along  with another  Writ  Petition (W.P.No.631 of 1994 - Ashok Kumar Thakur v. State of Bihar). There the  challenge was  to the  criteria followed  by  the State of  Bihar for  determining the  creamy layer among the backward classes.  The criteria  followed by  the  State  Of Bihar and  Uttar Pradesh in determining the creamy layer was struck down  by a judgment dated 4th September, 1994. In the aforesaid two  cases, however,  this Court  did not  have to consider  the  question  of  reservation  to  Post  Graduate Courses in Medicine. Liberty was given to raise the question in apropriate proceedings in the following manner|-      "Mr. Venugopal, the learned Counsel      appearing   for   the   petitioners      stated that there are various other      law points  of this  Writ  Petition      which were not raised and he sought      liberty  to   raise  the   same  in      appropriate     proceeding,      if      necessary . We order accordingly."      Pursuant  to  the  liberty  granted  in  the  aforesaid judgment  this   Writ  Petition  has  now  been  moved.  The

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petitioners contend  that they belong to open category. They are all from the State of Uttar Pradesh. They have completed their M.B.B.S.  Course. Petitioners  1,2 and  3 have already taken their  Post Graduate Medical Entrance Examination held in January,  1995. They  have been successful in getting the qualifying marks  in the  examination and  are likely  to be called for  ‘Counselling’. Petitioners  4 to  6 are  medical graduates who intended to take the examination to be held in January, 1996.      In the  State of  Uttar Pradesh  by virtue of executive instructions  issued   from  time   to  time  the  following reservations have  been made  for admission to Post Graduate Degree and Diploma Courses|-                    Scheduled castes ... 21%                    Scheduled Tribes ...  2%                    Backward Classes ...  27%      This practice  has been  in force  for some  time. What gives rise  to the  present dispute  is a    circular/letter dated 31.8.95  written  by  the  Principal  Secretary,  U.P. Government, to  the Director  General Medical  Education and Training, Uttar  Pradesh. In  that circular,  requirement of minimum  qualifying   marks,  which   was  35%  for  written examination, has  been cancelled for the reserved seats. The contention of  the petitioners is that even if these special category candidates fail to score any mark in the test, they will  be  eligible  for  admission  as  long  as  there  are vacancies in the special categories.      It has been contended on behalf of the petitioners that the ultimate  power to fix norms and standards for admission to medical  colleges vests in Medical Council of India under the Indian  Medical  Council  Act,  1956  read  with  Indian Medical Council  (Amendment) Act, 1993. So far as admissions to medical colleges are concerned, the Regulations framed by the Medical  Council of  India under  Section 33  of the Act will prevail  over any law or executive instructions made by any State Government.      The ultimate power to fix norms for admission  to post- graduate medical  courses vests  in  the  State  Government. Section 20  of the  Act states  that the Medical Council may prescribe standards  for Post Graduate Medical Education for the guidance  of Universities  in  the  matter  of  securing uniform  standards   for  Post  Graduate  Medical  Education throughout India.  For this  purpose the  Central Government has been  empowered to  constitute   a Post Graduate Medical Education Committee.  The committee had gone into the matter of admission  to Post  Graduate courses and recommended that the students  of Post  Graduate training  should be selected strictly on  merit judged on the basis of academic record in the under-graduate courses. All selections for post graduate courses  should   be  conducted  by  the  Universities.  The executive instructions of Uttar Pradesh Government have done away  with   the  requirement   of  obtaining   the  minimum qualifying marks in the written examination for admission to post-graduate medical courses for the candidates of reserved categories and are not in consonance with the guidelines set by Medical Council of India.      When this  Writ Petition  was moved,  notice was issued confined to  the question whether removing the minimum marks altogether for the SC/ST/OBC candidates by the Government of U.P. vide  letter dated 31st August, 1995 was permissible in law. Time  was allowed  for  filing  counter  affidavit  was extended by  six weeks  finally and it was directed that the matter would be disposed of on the next date of hearing.      However, when  the matter  was taken up on 13.12.96, it was found  that counter  affidavits had not been filed. Time

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to file  counter affidavit  was extended once again with the following directions|-           "List the  matter on  24.1.97.      No further time shall be granted .           Meanwhile, counter affidavits,      if any,  may be  filed by the State      of  U.P.  and  Medical  Council  of      India."      However, no  counter affidavit  had been  filed by  the respondents even  when the  case was taken up for hearing on 24.1.97.      The right  of the State Government to reserve admission to Post  Graduate Medical  Courses for  SC/ST and members of OBC classes  is not in the dispute. The only dispute is that whether  the   state  Government  is  entitled  to  do  away altogether with  the system  of obtaining minimum qualifying marks  for  getting  admission  to  these  courses.  By  the impugned circular  the State  Government has  dispensed with the requirement  of obtaining  at least  35%  marks  in  the written examination  held for  admission  to  Post  Graduate Degree and Diploma Courses.      The validity  of this circular has to be judged bearing in mind  the various decisions given by this Court from time to time in the matter of admission to post-graduate courses.      In the  case of  State of M.P. V. Kumari Nivedita Jain, (1982) 1 SCR 759, 15% of the seats for various categories of medical courses  in Madhya  Pradesh had  been  reserved  for Scheduled Castes  and another  108 seats  were reserved  for Scheduled Tribes. When the result of pre-Medical Examination was published  only 18  seats in  the category  of Scheduled Castes and 2 seats in the category of Scheduled Tribes could be filled because the other candidates could not acquire the qualifying marks laid down under Rule. 20. 90 seats remained vacant in  the reserved  category for  the Scheduled Castes. Likewise, 106 seats remained vacant in the category of seats reserved  for   the  Scheduled   Tribes.   Thereafter,   the Government relaxed  the requirement  of qualifying  marks by 7%. As  a result  of  this  seven  more  candidates  in  the category of Scheduled Castes and one more in the category of Scheduled Tribes got admitted. Faced with the situation that even after  relaxation a  large number of seats reserved for Scheduled Castes  and Scheduled  Tribes remained vacant, the State Government  passed an order on 9th September, 1980 for completely       relaxing  the  condition  relating  to  the minimum qualifying  marks  for  these  two  categories.  The Government Order was as under|-      "The   Government   has   taken   a      decision   that    the   candidates      belonging to  the Scheduled  Tribes      be admitted to the Medical colleges      in the  seats reserved  for them in      accordance with  the  merit  to  be      determined  on  the  basis  of  the      marks obtained  by them in the pre-      Medical Examination  and  that  for      this   purpose,    the    condition      relating  to   the   obtaining   of      minimum   qualifying    marks    be      removed."      The High Court held that the order violated Regulations of the  Central Medical  Council. The executive power of the State under  Article 162  could not  be exercised  so as  to override the  statutory provisions, especially when the said provision was  in a field occupied by the Union List. It was observed  that   the  executive   power  could  be  used  to

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supplement a  law but  not to  supplant it.  The High  Court observed that  the total relaxation of minimum marks for the candidates belonging  to these reserved categories could not be supported  under Article  15(4)  being  violated  of  the Regulations framed by the Medical Council.      This Court, on appeal after referring to the provisions of the  Indian Medical  Council Act reversed the decision of the High Court and held|-      "Regulation   I    prescribes   the      eligibility  of   a  candidate  for      admission to  medical courses.  For      maintaining  proper   standards  in      medical colleges  and  institutions      it comes  within the  competence of      the  Council   to   prescribe   the      necessary  qualification   of   the      candidate who  may  seek  admission      into the Medical Colleges ...... On      the  other  hand  the  language  in      Regulation  II   which  relates  to      selection  of   candidates  clearly      goes to  indicate that  the Council      itself appears  to have  been aware      of the  limitation on its powers to      frame any such regulation regarding      the   procedure   or   process   of      selection   of    candidates    for      admission. ....The  council  itself      appears to  have  apprehended  that      what is  contained in Regulation II      is  merely   in  the  nature  of  a      recommendation and  this is evident      from   the    language   used    in      Regulation II particularly when the      same   is   contrasted   with   the      language used  by  the  council  in      Regulation I.  Regulation II begins      with  the   words   "selection   of      students  in   a  medical   college      should be  based solely  on merit".      We are  of the opinion that the use      of words  "should be" in Regulation      II is  deliberate and  is  intended      the indicate  the intention  of the      Council that  it  is  only  in  the      nature of a recommendation."      It was  held that the authority of the Council extended to the sphere of maintaining proper medical standards in the medical colleges  or institutions  necessary  for  obtaining recognised  medical  qualifications.  It  other  words,  the eligibility of  a candidate  who may  seek  to  get  minimum education qualifications  required of  a student for getting admission into  a  medical  college.  In  other  words,  the eligibility of  a candidate  who may  seek to  get admission into a  medical college  for obtaining  a recognised medical qualifications may be prescribed by the Council. But how the selection was  to be made out of the eligible candidates for admission into  the medical  college was  a matter which had necessarily to  depend on  circumstances and conditions in a particular state.      It was  further  held,  "Though  the  question  of  the eligibility  for   admission  into   the   medical   college curriculum may come within the power and jurisdiction of the Council, the  question of  selection of  candidates  out  of candidates out  of eligible  to undergo  the medical  course

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does not  appear to  come within the purview of the Council. The  process   of  selection   of  candidates  eligible  for admission for  filling up  the limited vacancies had no real bearing on  the question of eligibility or qualification for admission or on the standards of medical education."      The medical  Council has  not laid  down that  for  the purpose of  admission to  post-graduate medical  courses,  a further test  will have to be conducted nor has it laid down any qualifying  marks which will have to be obtained in such tests.      The position  in law that emerges from this judgment is that all  candidates who  have successfully  completed their MBBS course  are eligible for admission to the post-graduate courses. But  the Council  has not  done that.  There may be more candidates  then seats  available for  admission to the post-graduate  courses.   For  this   purpose,   the   State Government decided  to hold  tests for  selection among  the eligible candidates. By reserving seats in these courses for certain categories  of  persons  the  State  Government  has departed from the norm of merit being the only criterion for selection.  Eligible  candidates  of  lesser  merit  may  be admitted to  the post-graduate courses if they belong to any of  the   three  categories   mentioned  in  the  Government Notification.  But  what  is  essential  is  that  even  the candidates of the three special categories must have an MBBS degree and  must obtain  the requisite  marks in the test to gain admission  to MS, MD and other courses. Here, the State Government has  drawn  a  distinction  between  the  special category of  candidates and candidates belonging to the open category. All  the candidates  seeking  admission  to  post- graduate medical  courses  will have to pass a further test. The MBBS  degree obtained  by the  candidates is the minimum qualification required for taking the test. Even thereafter, the candidates  will have  to secure a minimum percentage of marks in the admission tests to qualify for admission to the post-graduate medical  courses. If  in the  test the special category   candidates obtained lesser marks than the general category candidates,  even then  they will  be eligible  for admission within  their reserved  quotes provided  they have secured the  minimum qualifying marks in the admission test. They do  not have  to complete  equally with  the candidates belonging to the general category.      But the  Government has  gone one  step further. It has now laid  down that  it will  not necessary  for the special category candidates  to obtain  even the  minimum qualifying marks in  the admission  tests in order to gain admission to the post-graduate medical courses. In other words, the seats reserved for the three special categories of candidates will be filled  up by  the candidates  will be  filled up  by the candidates  belonging  to  these  three  candidates  special categories  even   if  they   fail  to  obtain  the  minimum qualifying marks  in the  tests held.  In other  words,  the candidates belonging  to the  three special  categories  who have passed  the MBBS examination will have to take the test for admission to post-graduate medical courses but that will be an idle formality because they will qualify for admission to the  post-graduate medical  courses even  though  they do not secure the minimum qualifying marks in the tests.      In our  view, this  rule  come  in  conflict  with  the direction given  by  the  Post  Graduate  Medical  Education Committee that students for post-graduate training should be selected strictly  on  merit.  It  was  open  to  the  State Government  to  say  that  selection  to  the  post-graduate medical courses should be on the basis of the performance of the candidates  in the  MBBS examination only. But the State

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Government has  chosen to  hold a test among the persons who have  passed   the  MBBS  examination  in  order  to  select candidates for  post-graduate  courses.  It  has  laid  down minimum   qualifying   marks   for   admission.   Candidates belonging to  the three  special categories  who secure  the minimum qualifying marks will have to be admitted as long as their quota  of seats  is not  filled up. But if the special category candidates  fail to secure the minimum marks in the tests held,  it is  not open  to the  Government to say that even  then  the  special  category  of  candidates  must  be selected for the post-graduate courses. If this is done, the merit will be sacrificed together.      In our  view, the  Government having laid down a system for holding admission tests, is not entitled to do away with the requirement  of obtaining  the minimum  qualifying marks for the  special category  candidates. It  is  open  to  the Government  to   admit  candidates   belonging  to   special categories even  in a  case where  they obtain  lesser marks than the  general candidates  provided  they  have  got  the minimum qualifying  marks to  fill up  the reserved quota of seats for them.      This Court had occasion to go into this question in the case of  Ajai Kumar  Singh and  Others v. State of Bihar and Others, 1994  (4) SCC  401, in which one of us (B.P.  Jeevan Reddy, J.)  was a  member. It  was held  in that case, after considering the  judgment of this Court in the case of State of M.P.  v. Kumari  Nivedita Jain,  (supra), that  the state will regulate  the admission  policy and  at the  same  time adhere to  the standards  determined by  the Indian  Medical Council. It  was further  observed in  that  case  that  the impugned provisions  of State  of Bihar  provided a  uniform eligibility criterion  of 50 per cent for general candidates and for candidates belonging to "other backward classes" and 40 percent  for members  of Scheduled  Castes and  Scheduled Tribes. Only  when students  in requisite  number  were  not available, the  said criterion  was reduced to 40 and 30 per cent respectively.  The  small  distinction  in  eligibility criteria can,  by no  stretch of  imagination,  be  said  to impinge upon  the determination or coordination of standards in institutions of higher learning.      There can  be no  doubt that the State may, if it feels necessary to  do  so,  encourage  the  backward  classes  by reserving the  seats at the under-graduate level for persons belonging to  Scheduled Castes,  Scheduled Tribes  and other backward classes.  We have  some reservation  as to  whether this policy  of reservation  can be  extended to  the  post- graduate level.  It was  held in  the case  of Dr.  Jagadish Saran and Others V. Union of India. (1980) 2 SCC 768. that |      "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  skill  or  talent,      must  be  handpicked  by  selecting      according  to  capability.  At  the      level of  Ph.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  expanded      upon  as   important   lose   their      potency... we  may here extract the

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    Indian  Council’s   recommendation,      which may  not be  the last word in      social  wisdom  but  is  worthy  of      consideration |      "Students     for     post-graduate      training   should    be    selected      strictly on  merit  judged  on  the      basis of  academic  record  in  the      undergraduate  studies   should  be      conducted by the universities."      The importance  of merit  being the  only criterion for admission to  post-graduate medical  courses viz. MD, MS and the like was also emphasised in the case of Dr. Pradeep Jain and Others V. Union of India and Others,(1984) 3 SCC 654      But this  line of  inquiry need  not detain  us here in this case  because the  case of  the petitioners is not that there should be no reservation for the candidates belongings to the three special categories mentioned hereinabove at the post-graduate level.  Their contention  is  that  candidates belonging to  the three  special categories  must be able to secure the  minimum qualifying  marks in the admission tests in order to gain admission to post-graduate medical courses. If they  fail to  secure even  the minimum qualifying marks, then the seats reserved for them should not be allowed to go waste  but  should  be  made  available  to  the  candidates belonging to  general  category.  This  contention  must  be upheld. Otherwise,  to  borrow  the  language  used  in  Dr. Jagdish Saran Case (supra), this will be a "national loss"      Before we  part with this case, we may refer to another judgment of  this Court  in Mohan Bir Singh Chawla V. Panjab University, Chandigarh,  1996 (9) SCALE 351, in which it was observed after a review of the case law that" the higher you go, in  any disciple, lesser should be the reservations - of whatever kind".      In  that   view  of  the  matter,  this  writ  petition succeeds.  The   decision  contained  in  the  letter  dated 31.8.1995  addressed   by  the  Principal  Secretary,  Uttar Pradesh  Government   to  the  Director  General  ,  Medical Education and  Training, Uttar  Pradesh directing that there shall  be   no  minimum   qualifying  marks   for  Scheduled Castes/Scheduled Tribes/Other Backward Classes candidates in the written  examination for  admission to post-graduate and diploma courses is quashed. It is directed that if the seats reserved for  SC/ST/OBC candidates  cannot be  filled up  on account of failure of the candidates belonging to obtain the minimum qualifying  marks, then  such seats  should be  made available  to   the  candidates  belonging  to  the  general category.      This writ  petition  is  disposed  of  with  the  above direction. There will be no order as to costs.