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CASE NO.: Writ Petition (civil)  290 of 1997

PETITIONER: PREETI SRIVASTAVA (DR.)& ANR.

RESPONDENT: STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT: 10/08/1999

BENCH: A.S.ANAND CJI & S.B.MAJMUDAR & SUJATA V.MANOHAR & K.VENKATASWAMI & V.N.KHARE

JUDGMENT: JUDGMENT

DELIVERED BY  

S.B.MAJMUDAR, J.  

SUJATA V.MANOHAR, J.  

S.B.Majmudar, J.

       Leave granted.       I  have  carefully  gone through  the  draft  judgment prepared  by  our  esteemed   colleague  Justice  Sujata  V. Manohar.   I respectfully agree with some of the conclusions arrived  at  therein at pages 61 and 62, namely,  conclusion nos.   1 and 4.  However, so far as conclusion nos.  2 and 3 are  concerned,  I respectfully record my  reservations  and partially  dissent  as noted hereinafter.  In my  view,  the common  entrance examination envisaged under the regulations framed  by  the  Medical Council of India  for  Postgraduate Medical  Education  does not curtail the power of the  State Authorities,  legislative as well as executive, from  fixing suitable  minimum  qualifying marks differently for  general category  candidates  and for SCs/STs and OBC candidates  as highlighted in my present judgment.

     So  far as conclusion no.3 is concerned, with respect, it  is  not possible for me to agree with the reasoning  and the final conclusion to which our esteemed colleague Justice Sujata  V.  Manohar has reached, namely, that fixing minimum qualifying marks for passing the entrance test for admission to  postgraduate  courses is concerned with the standard  of Postgraduate Medical Education.

     I,  however,  respectfully  agree  to  that  part   of conclusion  no.3  which states that there cannot be  a  wide disparity  between the minimum qualifying marks for reserved category  candidates  and the minimum qualifying  marks  for general   category  candidates  at   this  level.   I   also respectfully  agree that there cannot be dilution of minimum qualifying marks for such reserved category candidates up to

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almost  a vanishing point.  The dilution can be only up to a reasonable  extent  with  a rock bottom,  below  which  such dilution   would   not  be   permissible   as   demonstrated hereinafter  in this judgment.  In my view, maximum dilution can  be up to 50% of the minimum qualifying marks prescribed for  general  category  candidates.  On that  basis  if  45% passing   marks  are  prescribed   for   general   category, permissible  dilution can then go up to 22 and 1/2 % (50% of 45%).   Any  dilution  below this rock bottom would  not  be permissible  under  Article  15(4) of  the  Constitution  of India.

     For  reaching  the  aforesaid   conclusions,  I   have independently   considered  the  scheme   of  the   relevant provisions  of the Constitution in the light of the  various judgments of this Court as detailed hereinafter :

     Entry  66  of List I, Old Entry 11(2) of List  II  and Entry 25 of List III:

     Entry  66  of List I of the Seventh Schedule reads  as under  :   Co-ordination and determination of standards  in institutions for higher education or research and scientific and technical institutions.

     Old  Entry  11 of List II, as earlier existing in  the Constitution of India, read as under :

     Education  including  universities,  subject  to  the provisions  of entries 63, 64, 65 and 66 of List I and entry 25 of List III.

     While  Entry  25  of List III as now existing  in  the Seventh  Schedule  of  the  Constitution reads  as  under  : Education, including technical education, medical education and  universities, subject to the provisions of entries  63, 64,  65 and 66 of List I;  vocational and technical training of labour.

     A  conjoint  reading of these entries makes  it  clear that  as  per Entry 11 of List II which then existed on  the statute book, all aspects of education, including university education,  were within the exclusive legislative competence of  the  State Legislatures subject to Entries 63 to  66  of List I and the then existing Entry 25 of List III.  The then existing  Entry 25 of the Concurrent List conferred power on the   Union  Parliament  and   State  Legislature  to  enact legislation  with  respect  to   vocational  and   technical training of labour.  Thus, the said Entry 25 of List III had nothing  to  do  with   Medical  Education.   Any  provision regarding  Medical Education, therefore, was thus covered by Entry  11  of List II subject of course to the  exercise  of legislative  powers by the Union Legislature as per  entries 63  to 66 of List I.  In the light of the aforesaid relevant entries,  as  they stood then, a Constitution Bench of  this court  in  The  Gujarat University, Ahmedabad  vs.   Krishna Ranganath Mudholkar & Ors., 1963 Suppl.(1) SCR 112, speaking through  J.C.Shah,  J.,  for the majority, had  to  consider whether  the  State  Legislature could impose  an  exclusive medium of instruction Gujarati for the students who had to study   and  take  examination   conducted  by  the  Gujarat University.   It was held that If a legislation imposing  a regional  language  or  Hindi  as the  exclusive  medium  of

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instruction is likely to result in lowering of standards, it must  necessarily  fall  within  Item 66 of List  I  and  be excluded  to that extent from Item 11 of List II as it then stood  in the Constitution.  Medium of instruction was  held to  have  an  important  bearing  on  the  effectiveness  of instruction  and  resultant standards achieved thereby.   In this  connection, pertinent observations were made at  pages 142  and  143  of  the   aforesaid  Report:   If  adequate text-books are not available or competent instructors in the medium,   through  which  instruction  is  directed  to   be imparted, are not available, or the students are not able to receive  or imbibe instructions through the medium in  which it  is  imparted,  standards  must of  necessity  fall,  and legislation  for co-ordination of standards in such  matters would include legislation relating to medium of instruction. If legislation relating to imposition of an exclusive medium of  instruction  in a regional language or in Hindi,  having regard  to the absence of text-books and journals, competent teachers  and  incapacity of the students to understand  the subjects,  is likely to result in the lowering of standards, that  legislation  would, in our judgment, necessarily  fall within  item 66 of List I and would be deemed to be excluded to  that extent from the amplitude of the power conferred by item No.11 of List II.

     However,  after the deletion of Entry 11 from List  II and re-drafting of Entry 25 in the Concurrent List as in the present  form,  it  becomes  clear   that  all  aspects   of education,   including   admission  of   students   to   any educational  course,  would be covered by the general  entry regarding   education   including   technical  and   medical education  etc.   as found in the Concurrent List  but  that would  be  subject to the provisions of Entries 63 to 66  of List  I.   Therefore, on a conjoint reading of Entry  66  of List  I and Entry 25 of List III, it has to be held that  so long  as the Parliament does not occupy the field  earmarked for  it  under  Entry  66 of List I or for  that  matter  by invoking  its  concurrent  powers  as per Entry  25  in  the Concurrent  List,  the question of admission of students  to any  medical  course would not remain outside the domain  of the  State  Legislature.  It is not in dispute that up  till now  the  Parliament, by any legislative exercise either  by separate  legislation  or  by amending  the  Indian  Medical Council  Act, 1956 has not legislated about the  controlling of  admissions  of  students  to  higher  medical  education courses  in  the  country.   Therefore,  the  only  question remains  whether  the Indian Medical Council Act enacted  as per Entry 66 of List I covers this aspect.  If it covers the topic  then obviously by the express language of Entry 25 of List  III,  the  said  topic would  get  excluded  from  the legislative  field  available to the State Legislature  even under  Entry  25  of Concurrent List.   For  answering  this question, we have therefore, to see the width of Entry 66 of List  I.  It deals with Co-ordination and determination  of standards  in  institutions for higher education... A  mere reading  of this Entry shows that the legislation which  can be  covered  by  this  entry  has  to  deal  basically  with Co-ordination   and   determination    of   standards    in institutions  for  higher education.  Meaning thereby,  the standards  of  education  at   the  institutions  of  higher education   where  students  are   taking  education   after admission  are  to be monitored by such a legislation or  in other  words  after  their enrolment for  studying  at  such institutions  for  higher  education such students  have  to

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undertake  the prescribed course of education evolved with a view  to  having  uniform and well laid  down  standards  of higher  medical  education.   It  cannot  be  disputed  that postgraduate teaching in medical education is being imparted by  institutions  for  higher medical  education.   But  the question  is  whether  the topic of  admission  of  eligible candidates/students   for   taking     education   in   such institutions  has  anything  to do  with  co-ordination  and determination  of  standards  in  these  institutions.   Now standards  in  the institutions have been prefixed by  two words,  namely,  co-ordination and determination  of  such standards   as  per  Entry  66  of   List  I.   So  far   as co-ordination  is  concerned, it is a topic  dealing  with provision  of  uniform standards of education  in  different institutions  so  that  there  may  not  be  any  hiatus  or dissimilarity  regarding  imparting  of education  by  these institutions  to the students taking up identical courses of study  for  higher medical education in these  institutions. That  necessarily  has  a  nexus  with  the  regulations  of standards  of  education to be imparted to already  admitted students  to the concerned courses of higher education.  But so  far  as  the  phrase   determination  of  standards  in institutions   for  higher  education   is  concerned,   it necessarily  has  to take in its sweep the  requirements  of having  a  proper  curriculum of studies and  the  requisite intensity  of practical training to be imparted to  students attaining  such courses.  But in order to maintain the fixed standard   of   such  higher   medical  education   in   the institutions,   basic  qualification  or   eligibility   for admission of students for being imparted such education also would assume importance.  Thus, the phrase determination of standards  in institutions for higher education would  also take  in  its sweep the basic qualifications or  eligibility criteria   for  admitting  students  to  such   courses   of education.   It  can,  therefore, be held  that  the  Indian Medical  Council Act, 1956 enacted under Entry 66 of List  I could  legitimately authorise Medical Council of India which is the apex technical body in the field of medical education and  which  is enjoined to provide  appropriately  qualified medical  practitioners for serving the suffering humanity to prescribe  basic standards of eligibility and  qualification for  medical  graduates  who  aspire  to  join  postgraduate courses  for obtaining higher medical degrees by studying in the institutions imparting such education.

     But  the  next question survives as to  whether  after laying down the basic qualifications or eligibility criteria for  admission  of graduate medical students to  the  higher medical education courses which may uniformly apply all over India  as  directed by the Medical Council of India, it  can have  further  power  and authority to  control  the  intake capacity  of  these  eligible  students in  a  given  course conducted  by  the  institutions   for  higher  postgraduate medical  education.  In other words, whether it can  control the admissions of eligible candidates to such higher medical education courses or lay down any criteria for short-listing of  such  eligible candidates when the available  seats  for admission  to  such  higher postgraduate  medical  education courses  are  limited  and the  eligible  claimants  seeking admission to such courses are far greater in number?  So far as  this question is concerned, it immediately projects  the problem  of short- listing of available eligible  candidates competing  for  admission  to the  given  medical  education course  and  how  such  admissions could  be  controlled  by short-listing  a  number of eligible candidates out  of  the

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larger  number  of  claimants  who  are  also  eligible  for admission.   In other words, there can be too many  eligible candidates  chasing too few available seats.  So far as this question  is concerned, it clearly gets covered by Entry  25 of Concurrent List III rather than Entry 66 of List I as the latter  entry  would  enable,  as seen  above,  the  Medical Council  of  India  only  to   lay  down  the  standards  of eligibility  and  basic  qualification of  graduate  medical students  for  being  admitted to  any  higher  postgraduate medical  course.  Having provided for the queue of basically eligible  qualified graduate medical students for  admission to  postgraduate medical courses for a given academic  year, the  role  of  Medical Council of India would  end  at  that stage.   Beyond this stage the field is covered by Entry  25 of  List III dealing with education which may also cover the question  of controlling admissions and short-listing of the eligible candidates standing in the queue for being admitted to  a  given course of study in institutions depending  upon the  limited number of seats available in a given discipline of  study, the number of eligible claimants for it and  also would cover the further question whether any seats should be reserved  for  SC,ST  and OBCs as permissible to  the  State authorities  under  Article  15(4) of  the  Constitution  of India.   So  far as these questions are concerned, it is  no doubt  true  that  Entry  25 of Concurrent  List  read  with Article   15(4)   of   the   Constitution   of   India   may simultaneously  authorise both the Parliament as well as the State  Legislatures  to  make necessary provisions  in  that behalf.  The State can make adequate provisions on the topic by resorting to its legislative power under Entry 25 of List III  as well as by exercising executive power under  Article 162  of the Constitution of India read with entry 25 of List III.   Similarly, the Union Government, through  Parliament, may  make adequate provisions regarding the same in exercise of  its legislative powers under Entry 25 of List III.   But so  long  as  the  Union Parliament does  not  exercise  its legislative  powers under Entry 25 of List III covering  the topic  of short-listing of eligible candidates for admission to  courses  of  postgraduate medical education,  the  field remains wide open for the State authorities to pass suitable legislations  or executive orders in this connection as seen above.   As we have noted earlier, the Union Parliament  has not  invoked  its  power  under Entry 25  of  List  III  for legislating  on  this topic.  Therefore, the field  is  wide open  for the State Governments to make adequate  provisions regarding  controlling  admissions to postgraduate  colleges within  their  territories imparting medical  education  for ultimately  getting  postgraduate degrees.  However,  I  may mention  at  this  stage  that   reliance  placed  by   Shri Chaudhary,  learned  senior counsel for the State of  Madhya Pradesh  on  a Constitution bench judgment of this Court  in Tej  Kiran Jain & Ors.  vs.  N.Sanjiva Reddy & Ors., 1970(2) SCC  272,  interpreting  the  word in in  the  phrase  in Parliament to mean during the sitting of Parliament and in the  course of the business of Parliament cannot be of  any avail to him while interpreting the phrase determination of standards  in institutions for higher education as found in Entry  66  of  List  I.   His  submission,  relying  on  the aforesaid  decision that directions regarding standards  in institutions  mean  only  those directions of  the  Medical Council  of India which regulate the actual courses of study after  the  students are admitted into the institutions  and cannot cover the situation prior to their admission, meaning thereby,  pre-admission stage for students seeking entry  to the  institution of higher education cannot be countenanced.

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The  reason  is obvious.  Once it is held that  the  Medical Council  of  India  exercising its statutory  functions  and powers  under  the  Indian Medical Council Act,  1956  which squarely  falls  within Entry 66 of List I can lay down  the eligibility and basic qualifications of students entitled to be  admitted  to such postgraduate courses of  study,  their eligibility   qualification   would   naturally  project   a consideration  which  is prior to their actual entry in  the institutions   as  students  for   being   imparted   higher education.   That would obviously be a pre-admission  stage. Therefore,  the  phrase  determination   of  standards   in institutions   does   not   necessarily  mean   controlling standards  of  education  only after the stage of  entry  of students  in these institutions and necessarily not prior to the  entry  point.   However,  as  seen  earlier,  the  real question   is  whether  determination   of   standards   in institutions  would go beyond the stage of controlling  the eligibility  and basic qualification of students for  taking up such courses and would also cover the further question of short-listing of such eligible students by those running the institutions  in the States.  For every academic year, there will  be  limited  number of seats in  postgraduate  medical courses  vis-a-vis a larger number of eligible candidates as per  guidelines  laid down by the Medical Council of  India. Short-listing  of  such  candidates, therefore,  has  to  be resorted  to.   This  exercise   will  depend  upon  various imponderables  like i) limited number of seats for admission in  a  given  course  vis-a-vis larger  number  of  eligible candidates  seeking admissions and the question of  fixation of their inter se merits so as to lay down rational criteria for  selecting  better candidates as compared to  candidates with  lesser degree of competence for entry in such courses; ii)  Whether  at  a given point of time there  are  adequate chances  and  scope  for SC,ST and OBC  candidates  who  can equally  be eligible for pursuing of such courses but who on account  of  their social or economic backwardness  may  lag behind in competition with other general category candidates who  are equally eligible for staking their claims for  such limited number of seats for higher educational studies, iii) availability  of  limited   infrastructural  facilities  for training in institutions for higher medical education in the State or in the colleges concerned.  All these exigencies of the  situations  may  require   State  authorities,   either legislatively  or by exercise of executive powers, to  adopt rational  standards  or methods for  short-listing  eligible candidates  for being admitted to such medical courses  from year to year also keeping in view the requirement of Article 15(4)  of  the  Constitution of India.  While  dealing  with Entry 25 of List III it has also to be kept in view that the word  education  is of wide import.  It would  necessarily have in its fold (i) the taught, (ii) the teacher, (iii) the text  and  also  (iv)  training  as  practical  training  is required  to be imparted to students pursuing the course  of postgraduate  medical education.  Who is to be the taught is determined  by  Medical Council of India by prescribing  the basic   qualifications  for  admission   of  the   students. Adequate  number of teachers keeping in view teacher  taught ratio is also relevant.  Prescribing appropriate courses for study   i.e.   curricula  is  also   covered  by  the   term education.   Training to be imparted to the students has a direct  nexus with infrastructural facilities like number of beds  of patients to be attended to by postgraduate  medical students,  providing appropriate infrastructure for surgical training  etc.  also would form part of education.  Role  of Medical Council of India is exclusive in the field of laying

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down  of  basic  qualifications of the taught and  also  the requirement  of  qualified  teachers,   their  numbers   and qualifications,  prescribing text and requisite training  to be  imparted  to students undertaking  postgraduate  medical courses.  All these provisions quite clearly fall within the domain of Medical Council of Indias jurisdiction.  However, the  only  field left open by the Parliament while  enacting the  Indian Medical Council Act, 1956 under Entry 66 of List III  of  Schedule  VII is the solitary  exercise  of  short- listing  of  eligible  taught  for being  admitted  to  such courses.   That  field can validly be operated upon  by  the State authorities so long as Parliament, in its wisdom, does not  step  in  to block even that solitary  field  otherwise remaining  open  for State authorities to function  in  that limited  sphere.  Infrastructure facilities, therefore,  for giving  such practical training to the taught also would  be an  important  part of medical education.  It is  of  course true that not only the eligibility of students for admission to  medical courses but also the quality of students seeking to  get  medical education especially  postgraduate  medical education  with  a  view to turning  out  efficient  medical practitioners  for serving the suffering humanity would  all be  covered by the term education.  So far as the  quality of  admitting  students  to the courses  of  higher  medical education  i.e.  postgraduate medical courses is  concerned, the  admission  of  students may get  sub-divided  into  two parts;   i)  basic  eligibility or qualification  for  being permitted  to  enter the arena of contest for occupying  the limited   number  of  seats   available  for  pursuing  such education;   and ii) the quality of such eligible candidates for  being  admitted  to  such courses.   As  we  have  seen earlier,  the  first part of exercise for admission  can  be covered  by the sweep of the parliamentary legislation  i.e. the  Indian Medical Council Act, 1956 enabling the  delegate of  the  Parliament namely, Medical Council of India to  lay down  proper  criteria for that purpose as  per  regulations framed  by it under Section 33 of the Indian Medical Council Act.   This aspect is clearly covered by Entry 66 of List  I but  so  far  as the second part of admissions  of  eligible students  is concerned, it clearly remains in the domain  of Entry  25 of List III and it has nothing to do with Entry 66 of List I and as this field is wide open till the Parliament covers it by any legislation under Entry 25 of List III, the State  can certainly issue executive orders and instructions or  even  pass appropriate legislations for controlling  and short-listing  the admissions of eligible candidates to such higher postgraduate medical courses in their institutions or other  institutions imparting such medical education in  the States concerned.  A three Judge bench of this Court in Ajay Kumar  Singh & Ors.  vs.  State of Bihar & Ors., 1994(4) SCC 401, has taken the same view on these entries which commands acceptance.   Jeevan Reddy, J., speaking for the three Judge bench  placing  reliance  on an earlier  three  Judge  bench judgment of this Court in State of M.P.  vs.  Nivedita Jain, 1981(4)  SCC  296,  and  agreeing with  the  view  expressed therein  observed in para 22 of the Report as under :  The power  to  regulate  admission to the courses  of  study  in medicine is traceable to Entry 25 in List III.  (Entry 11 in List  II,  it  may be remembered, was deleted  by  the  42nd Amendment  to  the  Constitution and Entry 25  of  List  III substituted).   The  States,  which establish  and  maintain these  institutions  have the power to regulate all  aspects and  affairs  of  the  institutions  except  to  the  extent provided  for  by  Entries 63 to 66 of List I.   Shri  Salve contended  that  the  determination   and  coordination   of

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standards of higher education in Entry 66 of List I takes in all  incidental  or  ancillary matters, that  Regulation  of admission  to  courses  of  higher  education  is  a  matter incidental  to the determination of standards and if so, the said subject- matter falls outside the field reserved to the States.  He submits that by virtue of Entry 66 List I, which overrides  Entry  25 of List III, the States are denuded  of all  and  every  power  to   determine  and  coordinate  the standards  of higher education, which must necessarily  take in  regulating the admission to these courses.  Even if  the Act  made  by parliament does not regulate the admission  to these  courses, the States have no power to provide for  the same  for  the  reason that the  said  subject-matter  falls outside  their purview.  Accordingly, it must be held,  says Shri  Salve, that the provision made by the State Government reserving certain percentage of seats under Article 15(4) is wholly  incompetent  and  outside the purview of  the  field reserved  to  the States under the Constitution.  We  cannot agree.   While  Regulation  of admission  to  these  medical courses  may be incidental to the power under Entry 66  List I,  it  is integral to the power contained in Entry 25  List III.   The  State which has established and  is  maintaining these  institutions  out  of public funds must  be  held  to possess   the  power  to   regulate  the  admission   policy consistent  with  Article  14.  Such power  is  an  integral component  of  the  power to maintain and  administer  these institutions.   Be  that  as  it may, since  we  have  held, agreeing  with the holding in Nivedita Jain that Entry 66 in List  I  does  not take in the selection  of  candidates  or regulation of admission to institutions of higher education, the argument of Shri Salve becomes out of place.  The States must  be  held  perfectly  competent  to  provide  for  such reservations.

     It  is  also pertinent to note that decision  of  this Court  in  Kumari  Nivedita Jain (supra) is  approved  by  a Constitution  bench  of nine Judges of this court  in  Indra Sawhney  vs.  Union of India, 1992 Supp.  3 SCC 217 at  page 751,  to  which I will make a detailed reference  later  on. II.   Role  of  the  Medical Council  of  India:   As  noted earlier, the Indian Medical Council Act, 1956 was enacted by the  Union Parliament in exercise of its powers under  Entry 66  of  List I of the Seventh Schedule of the  Constitution. The statement of objects and reasons of the said Act read as under  :  The objects of this Bill are to amend the  Indian Medical  Council Act, 1933 (Act XXVII of 1933) - (a) to give representation   to  licentiate  members   of  the   medical profession,  a large number of whom are still practising  in the  country;   (b) to provide for the registration  of  the names of citizens of India who have obtained foreign medical qualifications which are not at present recognised under the existing  Act;  (c) to provide for the temporary recognition of medical qualifications granted by medical institutions in countries  outside India with which no scheme of reciprocity exists  in  cases where the medical practitioners  concerned are  attached for the time being to any medical  institution in  India for the purpose of teaching or research or for any charitable  object;   (d) to provide for the formation of  a Committee  of Postgraduate Medical Education for the purpose of  assisting  the  Medical Council of  India  to  prescribe standards of postgraduate medical education for the guidance of  Universities and to advise Universities in the matter of securing   uniform   standards   for  postgraduate   medical education   throughout  India;   (e)  to  provide  for   the

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maintenance  of an all-India register by the Medical Council of  India,  which will contain the names of all the  medical practitioners possessing recognised medical qualifications.

     Amongst  others, the object and reason no.(d)  clearly indicated that the Act was to provide for the formation of a Committee  of Postgraduate Medical Education for the purpose of  assisting  the  Medical Council of  India  to  prescribe standards of postgraduate medical education for the guidance of Universities.  This necessarily meant conferring power on Medical  Council  of India to be the approving body for  the universities  for  enabling them to prescribe  standards  of postgraduate  medical education.  Naturally that referred to the  courses  of  study to be prescribed and  the  types  of practical  training to be imparted to the admitted  students for  such  courses.   We  may  now  refer  to  the  relevant statutory  provisions of the Act.  Section 10-A empowers the Central  Government  to  give   clearance  for  establishing medical   colleges  at  given   centres  and  the  statutory requirements  for  establishing  such colleges.  It  is  the Medical  Council  of  India  which   has  to  recommend   in connection  with  such  proposed   scheme  for  establishing medical colleges.  Sub-section (7) of Section 10-A lays down the  relevant  considerations  to  be kept in  view  by  the Medical  Council of India while making such  recommendations in  connection  with  any scheme proposing  to  establish  a medical  college.   They  obviously refer to  the  types  of education  to be imparted to admitted students and the basic requirement  of infrastructure for imparting such  education which  only  would  enable  the   proposed  college  to   be established.   None of these requirements has anything to do with  the  controlling  of admissions out of  qualified  and eligible  students who can take such education.  Section  11 deals  with medical qualifications granted by any University or  medical  institution which can be recognised as  medical qualifications for the purpose of the Act.  Meaning thereby, only  such  qualified persons can be registered  as  medical practitioners  under the Act.  None of the other  provisions of  the Act deal with the topic of short-listing of eligible and  otherwise  qualified candidates for being  admitted  to medical  courses  either  at  MBBS level or  even  at  post- graduate  level.  As we are concerned with minimum standards for  medical education at postgraduate level, Section 20  of the  Act  becomes  relevant.   It reads  as  under  :   20. Postgraduate  Medical  Education   Committee  for  assisting Council   in  matters  relating   to  postgraduate   medical education  -  (1)  The Council may  prescribe  standards  of postgraduate   medical  education  for   the   guidance   of Universities,  and may advise Universities in the matter  of securing   uniform   standards   for  postgraduate   medical education throughout India, and for this purpose the Central Government  may  constitute  from among the members  of  the Council   a   Postgraduate   Medical   Education   Committee (hereinafter  referred  to as the  Postgraduate  Committee). (2) The Postgraduate Committee shall consist of nine members all  of  whom  shall  be,  persons  possessing  postgraduate medical  qualifications  and  experience   of  teaching   or examining postgraduate students of medicine.  (3) Six of the members  of the Postgraduate Committee shall be nominated by the Central Government and the remaining three members shall be elected by the Council from amongst its members.  (4) For the  purpose  of  considering   Postgraduate  studies  in  a subject,  the Postgraduate Committee may co-opt, as and when necessary,  one  or more members qualified to assist  it  in

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that  subject.   (5)  The views and recommendations  of  the Postgraduate Committee on all matters shall be placed before the  Council;   and if the Council does not agree  with  the views   expressed  or  the   recommendations  made  by   the Postgraduate  Committee  on  any matter, the  Council  shall forward  them together with its observations to the  Central Government for decision.

     Sub-section  (1)  of  Section 20  while  dealing  with prescription  of standards of postgraduate medical education by  the Council for the guidance of Universities does not by itself  touch upon the topic of controlling of admission  of eligible  medical graduates or short-listing them  according to the exigencies of the situations at a given point of time by those running medical institutions imparting postgraduate medical  courses in the colleges.  Standards of postgraduate medical education as mentioned in sub-section (1) of Section 20  therefore, would include guidance regarding the  minimum qualifications or eligibility criteria for such students for admission  and after they are admitted having undergone  the process  of  short-listing  at  the   hands  of  the   State authorities  or  authorities running the  institutions,  how they  are  to be trained and educated in such  courses,  how practical training has to be given to them and what would be the   course  of  study,  the   syllabi  and  the  types  of examination  which they have to undertake before they can be said  to  have successfully completed  postgraduate  medical education  in  the  concerned States.  But having  seen  all these  it  has to be kept in view that all that  Sub-section (1) of Section 20 enables the Medical Council of India is to merely give guidance to the Universities.  What is stated to be  guidance  can never refer to the quality of a  candidate who  is  otherwise  eligible  for admission.   None  of  the remaining provisions up to Section 32 deal with the question of controlling of admission by process of short-listing from amongst  eligible  and  duly  qualified  candidates  seeking admission  to  postgraduate medical courses.  We then go  to Section  33  which confers power on the Medical  Council  of India  to  make regulations.  It provides that the  Council may,  with the previous sanction of the Central  Government, make regulations generally to carry out the purposes of this Act.  Therefore, this general power to make regulations has to  be  with  reference  to any of  the  statutory  purposes indicated  in  any other provisions of the Act.  As none  of the  provisions  in the Act enables the Medical  Council  of India  to  regulate the admission of eligible candidates  to the  available seats for pursuing higher medical studies  in institutions,  the general power to make regulations  cannot cover such a topic.  So far as the express topics enumerated in  Section  33  on  which regulations  can  be  framed  are concerned,  the relevant topics for our purpose are found in clauses  (fc) and (j).  So far as clause (fc) is  concerned, it  deals  with the criteria for identifying a student  who has  been granted a medical qualification referred to in the Explanation  to  sub-section (3) of Section 10B.   When  we turn  to  Section  10B,  we find that it  deals  with  those students  who  are admitted on the basis of the increase  in its  admission  capacity without previous permission of  the Central  Government.  Any medical qualification obtained  by such  student  will not enable him or her to be  treated  as duly  medically  qualified.   The medical  qualification  is obviously  obtained  by  the student  who  has  successfully completed  his  course of study and obtained  the  requisite degree.   It  is  the obtaining of  such  requisite  medical

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degree  and qualification that entitles him to get  enrolled as  per Section 15 on any State Medical Register so that  he can   act  as  a   Registered  Medical  Practitioner.   That obviously  has nothing to do with the admission of  students desirous  of  obtaining  medical  degrees  after  undergoing requisite   educational   training  at   the   institutions. Therefore,  no  regulation framed under Section  33(fc)  can cover  the topic of short-listing of eligible candidates for admission.   Then  remains  in the filed  clause  (j)  which provides  as  under :  [(j)the courses and period of  study and  of practical training to be undertaken, the subjects of examination  and the standards of proficiency therein to  be obtained,  in Universities or medical institutions for grant of  recognised  medical qualifications; A mere look at  the said  provision shows that regulations under this  provision can  be  framed by the Medical Council of India  for  laying down  the  courses  and  period of study  and  of  practical training  to be undertaken, the subjects of examination  and the  standard  of proficiency therein to be obtained by  the admitted   students   for   obtaining   recognised   medical qualifications.    They  all  deal   with  post-   admission requirements  of  eligible students in the  medical  courses concerned.   That has nothing to do with pre-entry stage  of such  students  eligible for admission.   Consequently,  any regulation  framed  by  the Medical Council of  India  under Section  33 which seeks to give any guidelines in connection with  the  method of admission of such eligible students  to medical  courses  would obviously remain in the realm  of  a mere  advise  or guidance and can obviously  therefore,  not have  any  binding  force qua  admitting  authorities.   It, therefore,  must  be held that once the Medical  Council  of India  has laid down basic requirements of qualifications or eligibility  criteria for a student who has passed his  MBBS examination  for being admitted to postgraduate courses  for higher  medical  education  in institutions and  once  these basic  minimum  requirements are complied with  by  eligible students seeking such admissions the role of Medical Council of  India comes to an end.  As seen earlier, the question of short-listing   falls  squarely  in   the  domain  of  State authorities  as  per  entry 25 of List III  till  Parliament steps  in to cover this field.  We may now briefly deal with decisions  of  this  Court  rendered from time  to  time  in connection  with this question.  A three Judge bench of this Court  in  D.N.  Chanchala vs.  State of Mysore &  Ors.etc., 1971 Supp.  SCR 608, speaking through Shelat, J., emphasised the  necessity  for  a screening test and  short-listing  of eligible candidates for being admitted to medical courses in view of the fact that claimants are many and seats are less. Dealing with three universities set up in the territories of the  then State of Mysore catering to medical education, the following relevant observations were made at page 619 of the Report  :   The  three universities were set  up  in  three different  places presumably for the purpose of catering  to the   educational  and  academic   needs  of  those   areas. Obviously  one  university for the whole of the State  could neither  have  been adequate nor feasible to  satisfy  those needs.   Since  it  would  not  be  possible  to  admit  all candidates  in  the medical colleges run by the  Government, some  basis  for screening the candidates had to be set  up. There  can be no manner of doubt, and it is now fairly  well settled,   that  the  Government,  as  also  other   private agencies,  who found such centres for medical training, have the  right  to  frame rules for admission so long  as  those rules  are not inconsistent with the university statutes and regulations   and   do   not    suffer   from   infirmities,

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constitutional  or  otherwise. Similar  observations  were made at page 628 of the Report :

     On  account  of  paucity  of  institutions  imparting training  in technical studies and the increasing number  of candidates seeking admission therein, there is obviously the need  for  classification  to   enable  fair  and  equitable distribution  of available seats.  The very decisions relied on  by  counsel for the petitioner implicitly recognise  the need  for classification and the power of those who run such institutions to lay down classification.

     A  three Judge bench of this Court in State of  Madhya Pradesh  &  Anr.  vs.  Kumari Nivedita Jain & Ors.,  (supra) had to consider the legality of order passed by the State of Madhya  Pradesh completely relaxing the conditions  relating to  the  minimum qualifying marks for SC,ST  candidates  for admission  to medical courses of study on non-  availability of  qualified  candidates  from these categories.   Such  an exercise  was  held permissible under Articles 14 and 15  of the  Constitution of India.  A.N.  Sen, J., speaking for the Court  in  this  connection  referred to  Entry  25  of  the Concurrent  List and also the constitutional scheme of Entry 66  of  List I and held that:  By virtue of  the  authority conferred  by  the Medical Council Act, the Medical  Council may prescribe the eligibility of a candidate who may seek to get admitted into a Medical College for obtaining recognised medical  qualifications.  But as to how the selection has to be  made  out of the eligible candidates for admission  into the Medical College necessarily depends on circumstances and conditions prevailing in particular States and does not come within  the purview of the Council.  Regulation I which lays down  the  conditions or qualifications for  admission  into medical  course  comes within the competence of the  Council under  Section  33  of  the Act and  is  mandatory,  whereas Regulation  II which deals with the process or procedure for selection  from amongst eligible candidates for admission is outside the authority of the Council under Section 33 of the Act,  and is merely in the nature of a recommendation and is directory  in nature.  (paras 19 and 21) Entry 25 in List II is  wide enough to include within its ambit the question  of selection  of  candidates to Medical Colleges and  there  is nothing in the Entries 63, 64 and 65 of List I to suggest to the contrary.  (para 22) As there is no legislation covering the  field  of  selection  of candidates  for  admission  to Medical  Colleges, the State Government would,  undoubtedly, be  competent to pass executive orders in this regard  under Article  162.   (para 24) Thus Regulation II of the  Council which   is  merely  directory  and  in  the  nature   of   a recommendation  has no such statutory force as to render the Order  in  question  which contravenes the  said  Regulation illegal,  invalid  and  unconstitutional.    The  Order  can therefore  be supported under Article 15(4).  (paras 22  and 25)  The  State  is entitled to make  reservations  for  the Scheduled  Castes  and  Scheduled Tribes in  the  matter  of admission  to medical and other technical institutions.   In the absence of any law to the contrary, it must also be open to  the  Government to impose such conditions as would  make the  reservation effective and would benefit the  candidates belonging  to these categories for whose benefit and welfare the   reservations  have  been   made.   In  any  particular situation,  taking  into  consideration  the  realities  and circumstances prevailing in the State it will be open to the State  to vary and modify the conditions regarding selection for  admission,  if such modification or  variation  becomes

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necessary  for  achieving the purpose for which  reservation has  been made and if there be no law to the contrary.  Note (ii)  of  Rule 20 of the Rules for admission framed  by  the State  Government  specifically empowers the  Government  to grant such relaxation in the minimum qualifying marks to the extent considered necessary.  Such relaxation neither can be said  to  be  unreasonable,  nor  constitutes  violation  of Article  15(1)  and (2) or Article 14 of  the  Constitution. The  impugned  order does not affect any relaxation  in  the standard  of  medical education or curriculum of studies  in Medical  Colleges for those candidates after their admission to  the  College  and the standard of  examination  and  the curriculum remains the same for all.  (paras 26 and 27)

     (Emphasis supplied)

     The  aforesaid  observations  of the  court  are  well sustained  on  the scheme of the relevant entries  in  VIIth Schedule  to  which  we have made a reference  earlier.   As noticed  herein before, this judgment of three member  bench is  approved  by the Constitution bench in its  judgment  in Indra  Sawhneys  case (supra).  It is of course  true  that these  observations are made with reference to admission  to MBBS course and not to postgraduate medical courses.  But on the  constitutional scheme of the relevant entries, the very same  result  can  follow  while  regulating  admissions  to postgraduate  medical  courses  also.  Before  parting  with discussion on the topic regarding role of Medical Council of India,  we  may also usefully refer to the  observations  of Jeevan  Reddy,  J., in the case of Ajay Kumar Singh  &  Ors. vs.   State  of  Bihar & Ors., (supra).  Jeevan  Reddy,  J., speaking  for the three Judge Bench in para 18 of the Report on  the review and relevant provisions of the Indian Medical Council Act has made the following pertinent observations in the  said para of the Report at page 415 :  A review of the provisions of the Act clearly shows that among other things, the Act is concerned with the determination and coordination of   standards   of  education   and  training  in   medical institutions.   Sections 16, 17, 18 and 19 all speak of the courses of study and examinations to be undergone to obtain the  recognised medical qualification.  They do not speak of admission  to such courses.  Section 19-A expressly empowers the  council to prescribe the minimum standards of  medical education  required  for   granting  undergraduate  medical qualification.   So  does Section 20 empower the council  to prescribe  standards  of postgraduate medical education  but for  the  guidance of universities only.  It further  says that the council may also advise universities in the matter of  securing  uniform  standards  for  postgraduate  medical education  throughout India.  (The distinction between  the language  of Section 19-A and Section 20 is also a  relevant factor,  as would be explained later.) Clause (j) of Section 33  particularises  the  subjects   with  respect  to  which Regulations  can  be made by the council.  It speaks of  the courses and period of study and the practical training to be undergone by the students, the subjects of examination which they  must  pass and the standards of proficiency they  must attain  to obtain the recognised medical qualifications  but it  does  not speak of admission to such courses  of  study. Indeed,  none  of  the sections aforementioned  empower  the council   to  regulate  or   prescribe   qualifications   or conditions for admission to such courses of study.  No other provision  in  the Act does.  It is thus clear that the  Act does  not  purport  to deal with, regulate  or  provide  for

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admission  to  graduate  or  postgraduate  medical  courses. Indeed,  insofar as postgraduate courses are concerned,  the power  of  the  Indian  Medical Council  to  prescribe  the minimum  standards of medical education is only advisory in nature and not of a binding character.  In such a situation, it  would be rather curious to say that the Regulations made under  the Act are binding upon them.  The Regulations  made under  the Act cannot also provide for or regulate admission to postgraduate courses in any event.

     In  our view, these observations are clearly borne out from the statutory scheme of the Indian Medical Council Act, as seen earlier.

     III.   Role of States for short-listing of  admissions to postgraduate courses:

     As seen earlier, so far as the field consisting of the short-  listing  of  admission  out  of  eligible  and  duly qualified   medical   graduates  for   being   admitted   to postgraduate  medical courses in institutions is  concerned, as  the  Union  Parliament has not said anything  about  the same,  the  field is wide open for the State authorities  to regulate  such  admissions  by short-listing  the  available candidates  keeping  in view the concept of  reservation  of seats as permitted by Article 15(4) of the Constitution.  In the  case of R.  Chitralekha & Anr.  vs.  State of Mysore  & Ors.,  1964 (6) SCR 368, a Constitution bench of this  Court while  dealing with Entry 66 of List I and Article 15(4)  of the  Constitution  of  India had to  consider  the  question whether  the  State Government could prescribe the  criteria for selection of students having minimum qualifications laid down  by the university for admission to medical courses and whether  it  would  affect the central  legislation  enacted under  Entry  66 of List I of the  Constitution?   Answering this  question  in favour of the State authorities,  it  was observed  at  page  379  of the Report  by  Subba  Rao,  J., speaking  on  behalf  of the Constitution bench as  under  : If  the  impact  of  the  State  law  providing  for  such standards  on entry 66 of List I is so heavy or  devastating as  to wipe out or appreciably abridge the central field, it may  be  struck down.  But that is a question of fact to  be ascertained  in each case.  It is not possible to hold  that if  a  State  legislature made a law  prescribing  a  higher percentage  of marks for extra-curricular activities in  the matter  of  admission  to  colleges, it  would  be  directly encroaching  on  the field covered by entry 66 of List I  of the  Seventh Schedule to the Constitution.  If so, it is not disputed  that  the  State Government would  be  within  its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law.  It is  then said that the Mysore University Act conferred power to  prescribe  rules  for  admission   to  Colleges  on  the University  and  the Government cannot exercise that  power. It  is  true that under s.23 of the Mysore  University  Act, 1956, the Academic Council shall have the power to prescribe the  conditions for admission of students to the  University and,  in  exercise  of  its power,  it  has  prescribed  the percentage of marks which a student shall obtain for getting admission in medical or engineering colleges.  The orders of the  Government do not contravene the minimum qualifications prescribed  by the University;  what the Government did  was to  appoint  a selection committee and prescribe  rules  for selection  of  students who have the minimum  qualifications

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prescribed  by the University.  The Government runs most  of the  medical and engineering colleges.  Excluding the  State aided  colleges  for a moment, the position is as follows  : The  Colleges  run  by  the  Government,  having  regard  to financial commitments and other relevant considerations, can only  admit  a  specific  number of  students  to  the  said Colleges.   They  cannot obviously admit all the  applicants who have secured the marks prescribed by the University.  It has  necessarily to screen the applicants on some reasonable basis.    The  aforesaid  orders  of  the  Government   only prescribed  criteria for making admissions to Colleges  from among  students  who  secured the minimum  qualifying  marks prescribed  by the University.  Once it is conceded, and  it is not disputed before us, that the State Government can run medical  and  engineering colleges, it cannot be denied  the power  to  admit  such  qualified   students  as  pass   the reasonable  tests  laid down by it.  This is a  power  which every  private  owner  of  a  College  will  have,  and  the Government which runs its own Colleges cannot be denied that power.

     At  page  381  of  the   same  Report,  the  following observations  are  made by the Constitution Bench,  speaking through Subba Rao, J.  :

     We,  therefore, hold that the Government has power to prescribe a machinery and also the criteria for admission of qualified  students to medical and engineering colleges  run by the Government and, with the consent of the management of the Government aided colleges, to the said colleges also.

     Another  decision  of the Constitution bench  of  this Court  was rendered in the case of Chitra Ghosh & Anr.   vs. Union  of  India  &  Ors., 1970 (1) SCR  413.   Grover,  J., speaking  for the Constitution bench observed at page 418 as under  :   It  is the Central Government  which  bears  the financial  burden of running the medical college.  It is for it  to lay down the criteria for eligibility.  From the very nature  of things it is not possible to throw the  admission open  to students from all over the country.  The Government cannot  be denied the right to decide from what sources  the admission  will be made.  That essentially is a question  of policy  and depends inter-alia on an overall assessment  and survey  of  the  requirements  of  residents  of  particular territories  and other categories of persons for whom it  is essential  to provide facilities for medical education.   If the  sources are properly classified whether on territorial, geographical  or  other reasonable basis it is not  for  the courts to interfere with the manner and method of making the classification.

     At  page 419 of the Report it has been further  stated as  under :  The next question that has to be determined is whether  the  differentia on which classification  has  been made  has rational relation with the object to be  achieved. The  main  purpose of admission to a medical college  is  to impart education in the theory and practice of medicine.  As noticed  before  the sources from which students have to  be drawn  are  primarily  determined  by  the  authorities  who maintain   and  run  the   institution,  e.g.,  the  Central Government  in  the present case.  In Minor  P.Rajendran  v. State  of  Madras  it  has been stated that  the  object  of selection  for  admission  is to secure  the  best  possible

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material.   This  can  surely be achieved by  making  proper rules  in the matter of selection but there can be no  doubt that  such selection has to be confined to the sources  that are  intended  to supply the material.  If the sources  have been classified in the manner done in the present case it is difficult  to  see how that classification has  no  rational nexus  with  the object of imparting medical  education  and also of selection for the purpose.

     In  the  case of State of Andhra Pradesh &  Anr.   vs. Lavu  Narendranath & Ors.etc., 1971(1) SCC 607, a four Judge bench  of  this Court had to consider whether  the  entrance test prescribed by the Government for short-listing eligible candidates for being admitted to medical courses in colleges was  legally permissible or not.  Upholding the power of the State  Government on the anvil of the Constitution,  Mitter, J.,  speaking on behalf of the four Judge bench held that  : Merely  because  the  University   had  made   regulations regarding  the admission of students to its degree  courses, it  did not mean that any one who had passed the  qualifying examination such as the P.U.C.  or H.S.C.  was ipso facto to be  entitled to admission to such courses of study.  If  the number of candidates applying for such admission far exceeds the  number  of seats available the University can  have  to make its choice out of the applicants to find out who should be  admitted and if instead of judging the candidates by the number  of  marks  obtained  by   them  in  the   qualifying examination  the University thinks fit to prescribe  another test  for admission no objection can be taken thereto.  What the  University  can do in the matter of admissions  to  the degree  courses  can certainly be done by the Government  in the matter of admission to the M.B.B.S.  course.  9.  In our view  the  test  prescribed  by the  Government  in  no  way militates  against the power of Parliament under Entry 66 of List  I  of the Seventh Schedule to the  Constitution.   The said entry provides :

     Co-ordination  and  determination  of  standards   in institutions for higher education or research and scientific and technical institutions.

     The  above  entry gives Parliament power to make  laws for  laying down how standards in an institution for  higher education  are  to  be determined and how they  can  be  co- ordinated.   It  has no relation to a test prescribed  by  a Government  or by a University for selection of a number  of students  from out of a large number applying for  admission to  a  particular course of study even if it be  for  higher education in any particular subject.

     Similar  observations  were  found in para 15  of  the Report,  wherein  it was observed that :  .The  University Act,   as   pointed  out,   merely  prescribed   a   minimum qualification  for  entry into the higher courses of  study. There  was  no  regulation to the effect that  admission  to higher  course  of study was guaranteed by the  securing  of eligibility.   The  Executive  have  a  power  to  make  any regulation  which would have the effect of a law so long  as it  does not contravene any legislation already covering the field  and  the  Government  order in this case  in  no  way affected the rights of candidates with regard to eligibility for admission :  the test prescribed was a further hurdle by way  of competition when mere eligibility could not be  made the determining factor.

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     The aforesaid observations of the four Judge bench, in our  view,  correctly  bring out the permissible  scheme  of short-listing  of  eligible candidates in the light  of  the relevant  provisions  with which we are concerned.   In  the case  of  Dr.  Ambesh Kumar vs.  Principal,  L.L.R.M.Medical College,  Meerut  & Ors., 1986 (Supp) SCC 543, a  two  Judge bench of this court had to consider the question whether out of  the  eligible candidates qualified for being  considered for  admission  to  medical education  imparted  in  medical colleges  of  the  State, looking to the limited  number  of seats  available,  the State could resort to the process  of weeding   out   by   laying   down  further   criteria   for short-listing  such candidates.  Upholding such an  exercise undertaken  by  the  State  in the  light  of  the  relevant provisions  of  the Constitution, B.C.Ray, J., speaking  for the  court, made the following observations at pages 544 and 545  of the Report as under :  The State Government can  in exercise  of  its executive power under Article 162 make  an order  relating  to matters referred to in Entry 25  of  the Concurrent  List in the absence of any law made by the State Legislature.    The  impugned  order   made  by  the   State Government pursuant to its executive powers was valid and it cannot  be  assailed  on the ground that it  is  beyond  the competence  of  the  State  Government to  make  such  order provided  it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in Entry  66 of List I.  The order in question merely specified a further eligibility qualification for being considered for selection  for admission to the postgraduate courses (degree and  diploma)  in  the  Medical Colleges  in  the  State  in accordance  with  the criteria laid down by  Indian  Medical Council.   The  number  of seats for  admission  to  various postgraduate  courses  both  degree and diploma  in  Medical Colleges  is limited and a large number of candidates  apply for   admission  to  these  courses   of  study.   In   such circumstances  the  impugned order cannot be said to  be  in conflict  with  or  repugnant  to   or  encroach  upon   the Regulations framed under the provisions of Section 33 of the Indian  Medical  Council Act.  On the other hand  by  laying down  a further qualification of eligibility it promotes and furthers  the determination of standards in institutions for higher education.

     In  this  connection,  we may also refer  to  a  later Constitution bench Judgment of this Court in Indra Sawhney & Ors.   vs.   Union  of  India &  Ors.,  (supra).   As  noted earlier,  judgment  of this Court in Kumari Nivedita  Jains case  (supra)  was  approved  therein.   Jeevan  Reddy,  J., speaking on behalf of the Constitution bench, at page 751 of the  Report in para 837 has referred to, with approval,  the observations  of  this Court in State of Madhya Pradesh  vs. Kumari  Nivedita Jain, (Supra) to the effect that  admission to  medical  courses was regulated by an entrance  test  for general candidates, the minimum qualifying marks were 50% in the   aggregate  and  33%  in   each  subject.   For   SC/ST candidates,  however, it was 40% and 30% respectively.   The said  deviation  was upheld in Kumari Nivedita  Jains  case (supra)  and the same was also approved by the  Constitution Bench in the aforesaid decision.  In this connection, we may also usefully refer to the relevant observations in the case of State of Madhya Pradesh & Anr.  vs.  Kumari Nivedita Jain &  Ors.   (supra) which got imprimatur of  the  Constitution bench  of  this court in Indra Sawhneys case  (supra).   At

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page  751 of the Report in Indra Sawhneys case (supra), the following  pertinent observations are found in the  majority judgment  wherein Jeevan Reddy, J., in paragraph 837 of  the Report observed as under :

     Having   said  this,  we  must   append  a  note   of clarification.  In some cases arising under Article 15, this Court has upheld the removal of minimum qualifying marks, in the  case of Scheduled Caste/Scheduled Tribe candidates,  in the matter of admission to medical courses.  For example, in State of M.P.  v.  Nivedita Jain admission to medical course was regulated by an entrance test (called Pre-Medical Test). For  general  candidates, the minimum qualifying marks  were 50% in the aggregate and 33% in each subject.  For Scheduled Caste/Scheduled  Tribe  candidates, however, it was 40%  and 30% respectively.  On finding that Scheduled Caste/Scheduled Tribe  candidates equal to the number of the seats  reserved for  them  did  not  qualify  on  the  above  standard,  the Government   did  away  with   the  said  minimum   standard altogether.   The Governments action was challenged in this Court but was upheld.  Since it was a case under Article 15, Article  335  had no relevance and was not applied.  But  in the  case  of Article 16, Article 335 would be relevant  and any  order  on the lines of the order of the  Government  of Madhya  Pradesh (in Nivedita Jain) would not be permissible, being  inconsistent  with the efficiency of  administration. To  wit,  in the matter of appointment of Medical  Officers, the  Government or the Public Service Commission cannot  say that  there  shall  be  no   minimum  qualifying  marks  for Scheduled    Caste/Scheduled    Tribe    candidates,   while prescribing a minimum for others.  It may be permissible for the  Government to prescribe a reasonably lower standard for Scheduled   Castes/Scheduled  Tribes/Backward    Classes   - consistent   with   the  requirements   of   efficiency   of administration  -  it  would  not   be  permissible  not  to prescribe   any  such  minimum   standard  at  all.    While prescribing   the  lower  minimum   standard  for   reserved category,  the nature of duties attached to the post and the interest of the general public should also be kept in mind.

     In  para  20  of the Report in the case  of  State  of Madhya  Pradesh  &  Anr.  vs.  Kumari Nivedita Jain  &  Ors. (supra)  the  following pertinent observations are  found  : Undoubtedly,  under  Section 33 of the Act, the Council  is empowered  to make regulations with the previous sanction of the  Central Government generally to carry out the  purposes of  the Act and such regulations may also provide for any of the  matters  mentioned in Section 33 of the Act.   We  have earlier  indicated  what  are  the  purposes  of  this  Act. Sub-sections  (j), (k), (l) and (m) of the Act which we have earlier  set  out  clearly  indicate   that  they  have   no application  to the process of selection of a student out of the  eligible  candidates  for admission  into  the  medical course.    Sub-  sections  (j),  (k)   and  (l)  relate   to post-admission   stages  and  the   period  of  study  after admission  in Medical Colleges.  Sub-section (m) of  Section 33  relates  to  a post-degree stage.   Sub-section  (n)  of Section  33 which has also been quoted earlier is also of no assistance  as the Act is not concerned with the question of selection  of  students out of the eligible  candidates  for admission  into Medical Colleges.  It appears to us that the observations  of  this  Court in the case of Arti  Sapru  v. State  of  Jammu & Kashmir which we have earlier quoted  and which  were  relied  on by Mr.  Phadke, were  made  on  such consideration,  though  the question was not  very  properly

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finally decided in the absence of the Council.

     The  aforesaid  observations are also well  borne  out from  the scheme of the Indian Medical Council Act to  which we  have made a detailed reference earlier.  But even  apart from  that, once these observations have been approved by  a Constitution  Bench  of nine learned Judges of  this  Court, there  is no scope for any further debate on this aspect  in the present proceedings.

     We may now refer to a two Judge Bench decision of this Court  in  Dr.  Sadhna Devi & Ors.  vs.  State o f  U.P.   & Ors.,  1997(3)  SCC  90.  The court was concerned  with  the short-listing  of  eligible  candidates who have  got  basic qualification for admission to postgraduate medical courses. Reservation   of  seats  for  SC   and  ST   candidates   in postgraduate  courses was not challenged but providing  zero percent  marks for them for passing the entrance examination for  admission to postgraduate course was questioned  before the  Bench.  It was held that once minimum qualifying  marks for  passing  the  entrance  examination  for  admission  to postgraduate courses was a pre- requisite, in the absence of prescription  of  any minimum qualifying marks for  reserved category  of candidates, admitting such students who did not get  any marks at the entrance test amounted to  sacrificing merit  and  could  not be countenanced.  In para 21  of  the Report,  the following observations are made:  In our view, the  Government  having  laid  down  a  system  for  holding admission  tests,  is  not  entitled to  do  away  with  the requirement  of  obtaining the minimum qualifying marks  for the  special  category  candidates.   It   is  open  to  the Government  to  admit  candidates belonging to  the  special categories  even  in a case where they obtain  lesser  marks than  the  general  candidates provided they  have  got  the minimum  qualifying  marks to fill up the reserved quota  of seats for them.

     A  cursory  reading  of these  observations  seems  to indicate   that  once  the   minimum  qualifying  marks  are prescribed   for   otherwise     eligible   candidates   for short-listing  them  for admission to postgraduate  courses, minimum  qualifying  marks prescribed for  general  category candidates and reserved category candidates must be uniform. But  then  follows para 22 which relies on the  decision  of this  court in State of Madhya Pradesh vs.  Kumari  Nivedita Jain   (supra)  wherein  prescription   of  lesser   minimum qualifying  marks  in the entrance test for SC,ST and  Other Backward  Class  candidates  as   compared  to  the  minimum qualifying  marks  for  general   category  candidates   was approved.  Even in earlier para 18 it is observed that if in the  entrance test special category candidates obtain lesser marks  than general category candidates even then they  will be  eligible  for  admission within  their  reserved  quota. These  observations  indicate that for reserved category  of candidates  there can be separate minimum qualifying  marks. Thus,  on a conjoint reading of observations in paras 18, 21 and 22 of the Report it has to be held that the ratio of the decision  in  Sadhna  Devis case (supra) is that  even  for reserved  category  candidates there should be some  minimum qualifying  marks  if  not the same as prescribed  as  bench marks  for general category candidates.  Thus, there  cannot be   any  zero  qualifying   marks  for  reserved   category candidates   in   the  entrance   test  for   admission   to postgraduate  courses.  Hence, this judgment cannot be taken to  have  laid down that there cannot be  lesser  qualifying

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marks  for  reserved category candidates as compared to  the general  category candidates who are otherwise eligible  and qualified for being considered for admission to postgraduate medical  courses.   That takes us to the consideration of  a three  Judge  Bench decision of this Court  in  Postgraduate Institute  of  Medical  Education & Research,  Chandigarh  & Ors.,  vs.   K.L.   Narasimhan  & Anr., 1997  (6)  SCC  283. Ramaswamy, J., speaking for the Bench had mainly to consider two  questions;   1) whether there can be reservation  under Articles  15(4) and 16(4) of the Constitution in  connection with  only  one  post  in  a  discipline;   and  2)  whether reservation of seats in postgraduate courses was permissible as per Articles 14, 15 and 16 of the Constitution.  Both the aforesaid  questions  were  answered in the  affirmative  in favour  of  the  schemes  of reservations.  So  far  as  the question of reservation of seats when there is only one post in the discipline is concerned, decision rendered thereon by the   three  Judge  Bench  is   expressly  overruled  by   a Constitution  Bench  judgment of this Court in  Postgraduate Institute  of  Medical Education & Research, Chandigarh  vs. Faculty  Association & Ors., 1998(4) SCC 1.  However, so far as  the  second  question  is concerned,  in  the  aforesaid judgment  it was held that there can be reservation of seats in postgraduate courses as per the mandate of Articles 15(4) and  16(4).  In the present proceedings, there is no dispute on  this score.  Hence the said judgment on the second point is  not  required  to  be  reconsidered.   However,  certain observations  are  found  in para 21 of the  report  wherein Ramaswamy,  J.,  has  observed   that  diluting  of  minimum qualifying  marks  in  an  entrance   test  for  entry  into postgraduate  courses  for reserved category  of  candidates cannot  be said to be unauthorised or illegal.  It has  been observed   that:    Equally,   a  student,   admitted   on reservation,   is  required  to   pass  the  same   standard prescribed  for speciality or a superspeciality in a subject or  medical  science  or  technology.  In  that  behalf,  no relaxation  is given nor sought by the candidates  belonging to  reserved  categories.  What is sought is a  facility  or opportunity  for admission to the courses, Ph.D., speciality or  superspeciality  or high technology by relaxation  of  a lesser  percentage  of marks for initial admission than  the general  candidates.  For instance, if the general candidate is  required  to get 80% as qualifying marks  for  admission into  speciality  or  superspeciality,  the  relaxation  for admission  to  the reserved candidates is of 10 marks  less, i.e.,  qualifying marks in his case would be 70%.  A  doctor or  a  technologist  has to pass the postgraduation  or  the graduation  with  the  same  standard   as  had  by  general candidate  and  has  also  to possess  the  same  degree  of standard.   However,  with the facility of  possessing  even lesser marks the reserved candidate gets admission.

     Now,  so  far as these observations are concerned,  as the  court  was  not called upon to  consider  the  question whether  prescription  of lesser qualifying marks for  SC,ST and  other  reserved  category candidates for  admission  to postgraduate  or  super speciality courses in  medicine  was permissible,  they are clearly obiter.  So far as  admission to  super  speciality courses are concerned, in the  present reference  we  are  not concerned with  the  said  question, hence, we need not say anything about the same.  However, so far  as  admission to postgraduate courses is concerned  the question  of  providing  of   lesser  qualifying  marks  for reserved  category candidates for admission to these courses directly  arises  for our consideration.  Hence, the  obiter

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observations in the aforesaid case on this aspect do require consideration for their acceptance or otherwise.  As per the scheme of Entry 66 of List I and Entry 25 of List III of the Seventh  Schedule of the Constitution of India, as discussed earlier  goes,  it  is  not   possible  to  countenance  the submission  of  Shri Salve, learned senior counsel  for  the Medical  Council  of India and other counsel canvassing  the same  view  that the question of short-listing  of  eligible candidates  who  were  otherwise duly  qualified  for  being admitted  to postgraduate courses in Medicine is not  within the  domain  of State authorities especially in view of  the fact  that  the Parliament, in exercise of  its  legislative powers  under Entry 25 of List III, has still not spoken  on the  point  nor  does the Indian Medical Council  Act,  1956 enacted  under  Entry  66 of List I  covers  this  question. Hence,  while  providing for entrance test as an  additional requirement  for eligible candidates for being  short-listed in  connection  with  admission to smaller number  of  seats available  in  postgraduate courses, it cannot be said  that the  State  authorities in exercise of their  constitutional right  under Article 15(4) cannot give additional facilities to   reserved  category  of   candidates   vis-a-vis   their requirement  of  getting  minimum qualifying marks  at  such entrance  tests  so  that seats reserved for  them  may  not remain  unfilled and the reserved category of candidates  do get   adequate  opportunity  to  fill   them  up   and   get postgraduate  education on the seats reserved for them which in  their  turn would not detract from the  availability  of remaining  seats for general category candidates.  Thus, the observations in para 21 of the aforesaid judgment that there can be lesser qualifying marks for admission to postgraduate courses  for reserved category of candidates cannot be found fault  with.  It is made clear that similar observations for admission  to super speciality courses and the relaxation of minimum  qualifying  marks for candidates appearing  at  the entrance  test for such courses are not being approved by us as  we  are  not  required to consider that  aspect  of  the matter,  as  noted earlier.  As it will be presently  shown, once  reservation  of  seats in postgraduate  courses  under Article 15(4) is accepted then even lesser bench marks being prescribed for reserved category of candidates in the common entrance examination which they undertake along with general category of candidates would in substance make no difference so  far  as  the  un-reserved  seats  available  to  general category  of  candidates  are concerned.  In a  later  three Judge  Bench  Judgment of this Court in Medical  Council  of India  vs.   State of Karnataka & Ors., 1998(6) SCC 131,  it was  held  that in the light of Sections 10-A,  10-B,  10-C, 19-A  and 33(fa), (fb), (fc), (j), (k) and (l) of the Indian Medical  Council Act, 1956 fixation of admission capacity in medical  colleges/institutions is the exclusive function  of Medical  Council  of  India  and   increase  in  number   of admissions can only be directed by the Central Govt.  on the recommendation  of  the  Medical  Council  of  India.   This function  of the Medical Council of India was upheld in  the light  of Entries 66 List I and 25 of List III thereof.  Now it  becomes  at  once obvious that providing for  number  of seats  to be filled up by eligible candidates in any medical course  imparted by medical colleges or medical institutions will   have   a   direct   nexus  with   coordination   and determination  of standards in medical education, as larger the  seats  in  medical  colleges wherein  students  can  be admitted  to MBBS or even higher courses in medicine, larger infrastructure would be required by way of beds and eligible and  efficient  teachers  and all other  infrastructure  for

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imparting  proper  training to the admitted students.   Once this  exercise  is clearly within the domain of the  Medical Council  of  India in the light of the  aforesaid  statutory provisions it becomes obvious that Entry 66 of List I of the Seventh  Schedule  would  hold the  field  and  consequently States  will not be empowered under entry 25 of List III  to legislate on this topic as such an exercise would be subject to  legislation under Entry 66 of List I which would  wholly occupy  the field.  However, a moot question remains whether given the permissible intake capacity for admitting students in  any medical college as laid down by the Medical  Council of  India  can the available intake capacity of students  be regulated at the admission stage when the number of eligible candidates  aspiring  to  be  admitted is  larger  than  the available  intake  capacity?   This   question  will  remain outside the domain of the Medical Council of India under the aforesaid Act.  As we have discussed earlier, there being no parliamentary legislation on this aspect even under entry 25 of  List  III of the Seventh Schedule, the short-listing  of eligible  candidates  for  being admitted to  the  available permitted intake capacity in medical colleges will obviously remain  in  the  domain  of   State  legislature  and  State executive on the combined reading of entry 25 of List III as well  as Article 162 of the Constitution of India.  In  view of  the  aforesaid discussion, it therefore,  becomes  clear that once seats in postgraduate medical courses are reserved for  SC,  ST and OBC candidates as per Article 15(4) of  the Constitution  the  question as to how admission  to  limited number  of  general  seats  and reserved  seats  are  to  be regulated will remain in the domain of the State authorities running   these   institutions.     They   can,   therefore, legitimately  resort  to the procedure of  short-listing  of otherwise  eligible  candidates.    While  undertaking  this exercise of short-listing, the state authorities have to see how  best  in a given academic year the reserved  seats  and general  category  seats can be filled in by  available  and eligible  candidates.  The question is while undertaking the task  of  short-listing  of  available  eligible  candidates vis-a-vis  limited number of seats that may be available for being filled in in a given academic year, uniform qualifying bench  marks  for  passing  the   entrance  test  should  be prescribed  for both the general category candidates as well as reserved category candidates or there can be lesser bench marks  for  the  latter  category of students.   If  due  to non-availability  of reserved category candidates who  could obtain  minimum  qualifying  marks prescribed  for  all  the    examinees whether there can be any legitimate dilution of minimum  qualifying  marks  for these reserved  category  of question.   candidates and if so, to what extent is the moot In  the  case of M.R.  Balaji & Ors.  vs.  State of  Mysore, IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 1963  Supp.(1)  SCR 439, a Constitution bench of this  court was  concerned with the extent of reservation which could be legally  permissible under Article 15(4) of the Constitution of India.  Gajendragadkar, J., speaking for the Constitution bench  held  that  reservation of 68% seats  in  educational institutions  was  inconsistent with the concept of  special provision authorised by Article 15(4).  It was then observed as  under  :   Reservation should and must  be  adopted  to advance  the  prospects of weaker sections of  society,  but while  doing  so,  care  should  be  taken  not  to  exclude admission  to  higher educational centres of  deserving  and qualified  candidates  of other  communities.   Reservations under Arts.15(4) and 16(4) must be within reasonable limits. The  interests  of weaker sections of society, which  are  a

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first  charge  on  the  States and the Centre,  have  to  be adjusted  with  the interests of the community as  a  whole. Speaking  generally and in a broad way, a special  provision should  be less than 50%.  The actual percentage must depend upon  the  relevant prevailing circumstances in  each  case. The  object of Art.15(4) is to advance the interests of  the society  as  a whole by looking after the interests  of  the weaker  elements in society.  If a provision under Art.15(4) ignores  the  interests of society, that is clearly  outside the  scope  of Art.15(4).  It is extremely  unreasonable  to assume  that  in enacting Art.15(4), Parliament intended  to provide  that where the advancement of the backward  classes or  the  Scheduled  Castes and Tribes  were  concerned,  the fundamental  rights of the citizens constituting the rest of the  society  were to be completely and absolutely  ignored. Considerations of national interest and the interests of the community and the society as a whole have already to be kept in mind.

     Thus,  even accepting that when seats are reserved for SC  and  ST and Other Backward Classes for admission  to  be given  to  such reserved category of eligible candidates  in postgraduate  medical  courses, the concession  or  facility given  to  them cannot exceed 50% of the facility  otherwise available  to  members of the general public.   Keeping  the aforesaid   ratio  of  the   Constitution  Bench  in   view, therefore, even proceeding on the assumption that 50% of the available  seats in postgraduate medical courses in a  given year  may be reserved for SC,ST and OBCs, further concession that  may be given to them by State authorities by  diluting the  minimum  qualifying marks at the entrance test so  that seats  reserved  for  them may not remain  unfilled  by  the reserved  categories of persons for whom they are meant, the dilution  of  such  marks cannot exceed 50% of  the  general standards  of  qualifying  bench  marks laid  down  for  the general  categories of candidates.  Otherwise even the  said dilution  would  become  unreasonable and would  be  hit  by Articles  14 and 15(1) of the Constitution of India.  In the case  of  Minor P.  Rajendran vs.  State of Madras  &  Ors., 1968  (2) SCR 786, another Constitution bench of this  court had  to  consider  whether   district-wise  distribution  of reserved  seats in medical courses for granting admission to reserved  category of candidates was violative of Article 15 (1)  read  with  Article 14 of the  Constitution  of  India. Answering the question in the affirmative it was observed by Wanchoo,  J.,  speaking for the Constitution bench at  pages 792  and  793  of  the Report as under :   The  object  of selection  can only be to secure the best possible  material for  admission  to  colleges subject to  the  provision  for socially   and  educationally   backward  classes.   Further whether  selection  is from the socially  and  educationally backward  classes  or from the general pool, the  object  of selection  must  be to secure the best possible talent  from the two sources.  If that is the object, it must necessarily follow  that  that  object would be defeated  if  seats  are allocated  district  by district.  It cannot be and has  not been  denied  that the object of selection is to secure  the best  possible  talent  from  the two sources  so  that  the country may have the best possible doctors.

     Relying  on  these  observations of  the  Constitution bench  Shri  P.P.   Rao and Shri Chaudhary,  learned  senior counsel appearing for the State of Madhya Pradesh, submitted that  when  there is a pool of eligible candidates who  have all  passed  MBBS  examination and are  duly  qualified  and

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eligible  to  pursue postgraduate medical courses of  study, and  if in a given institution there are seats reserved  for them  then  the  selection  out  of  the  reserved  category candidates  for  filling up of these reserved posts  can  be done  in a selective manner and that would permit reasonable dilution  of  the uniform qualifying marks at  the  entrance test  as required to be obtained by the examinees concerned. This  submission  is  amply  borne out  from  the  aforesaid observations  of  the  Constitution bench decision  of  this court.   However, a further question survives as to  whether in  diluting  the  minimum  qualifying  marks  for  reserved category  of candidates who are otherwise eligible for being admitted  to postgraduate courses on the seats reserved  for them,  whether  Article  335 can get attracted.   It  is  of course  true  that  candidates   appointed  or  admitted  to postgraduate medical course have to work as registrars, some posts  of  the registrars are fully paid posts while  others may  be  stipendary  residents posts.  However, it  is  not possible to accept the contention of learned counsel for the Special  Leave  Petitioners that admission  to  postgraduate courses  would amount to recruitment to any posts.   Concept of  recruitment  to  posts is entirely  different  from  the concept  of  admission to the course of study which  in  its turn  may  require the students concerned to take  practical training  by  functioning  as registrars attached  to  wards where  patients are treated.  Even though such students work as  registrars  during the course of study  as  postgraduate students, they essentially remain students and their working as  registrars would be a part of practical training.   They would  all  the  same remain trainee registrars and  not  as directly   recruited  registrars   through  any  recruitment process held by the Public Service Commission for filling up full-fledged   medical  officers  posts.    They  work   as registrars  as  a part of postgraduate educational  training only  because  they are admitted to the course of  study  as postgraduate  students in concerned disciplines.  It is easy to  visualise that calling for applications from open market by  advertisement  for appointment of  full-fledged  medical officers to be recruited through the process of selection to be   undertaken  by  Public   Service  Commission  or  other departmental  selection committees will stand entirely on  a different  footing  as compared to the process of  admitting eligible  students  to  postgraduate   medical  courses   of studies.   Thus,  keeping in view the nature of  working  as trainee  registrars  by  admitted students  to  postgraduate medical  courses  it  cannot  be  said  that  such  admitted students   are  recruited  to   any  posts  of   registrars. Consequently, Article 335 of the Constitution of India which has  relevance while considering reservation of posts  under Article  16(4) cannot have any direct impact on  reservation of  seats  in  educational institutions as  permitted  under Article  15(4).   Learned  counsel for the  petitioners  had invited  our  attention to a decision of two Judge bench  of this  Court in S.  Vinod Kumar & Anr.  vs.  Union of India & Ors.,  1996(6)  SCC  580,  wherein it was  held  that  while providing  for  reservations  to posts in the  hierarchy  by invoking  powers under Article 16(4), making a provision for lower  qualifying  marks or lesser level of  evaluation  for members of reserved category was impermissible on account of Article  335  of the Constitution of India.   The  aforesaid decision  obviously  cannot  be  pressed  in  service  while considering  the  question of giving facilities to  reserved category  of  candidates  for being admitted  to  the  seats reserved  for them in educational institutions wherein  they can  undertake  courses of studies for ultimately  obtaining

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postgraduate degrees in medicine.  In the case of Ajay Kumar Singh & Ors.  vs.  State of Bihar & Ors.(supra), this aspect of  the  matter  has been correctly  highlighted  by  Jeevan Reddy,  J., speaking for the court in para 14 of the Report. It  has  been  held therein that :  We  see  absolutely  no substance  in  the  third  submission of  Shri  Singh.   The argument  taxes  ones credulity.  We are totally unable  to appreciate how can it be said that admission to postgraduate medical  course  is  a promotional post  just  because  such candidate  must  necessarily  pass MBBS  examination  before becoming  eligible  for  admission to  postgraduate  medical course  or  for  the  reason  that  some  stipend  -  it  is immaterial  whether  Rs.1000 or Rs.3000 p.m.  - is  paid  to postgraduate  students.  Admission to such course cannot  be equated  to  appointment to a post and certainly not  to  an appointment  by  promotion.   The  argument  is  accordingly rejected.

     (Emphasis supplied)

     It  is  obvious  that only because a  person  who  has passed  MBBS examination and is made eligible for  admission to  postgraduate course is paid stipend during the course of his studies at postgraduate level, he cannot be said to have been  appointed to the post of a registrar.  It may be  that he  has to work as a trainee registrar during the course  of his study to obtain practical training but that is a part of the curriculum of studies and not because he is appointed to the post of the registrar after undergoing selection process whereunder  a  person  from open market is  recruited  as  a medical  officer  and whose recruitment as  medical  officer would  be  subject  to rules and regulations and  would  not terminate only because his training period is over.  In fact such  a full-fledged medical officer has no training period. He  has  if at all probation period.  In case of  a  trainee registrar  who has to work as such during the course of  his studies  as  a postgraduate student on the other  hand,  his work  as registrar would be co-terminus with his passing the postgraduate  examination  as M.D.  or M.S./M.D.S.   as  the case  may be.  He is also not liable to be transferred as  a full-fledged registrar, duly appointed as such, is liable to be  transferred  due  to exigencies of service.   Thus,  the working  of  such  students during the course  of  study  as residents  whether on full payment or on stipendary  payment would  make  no  difference and they cannot be  said  to  be holding  any  civil  post in any hospital as  full-  fledged medical   officers.   Consequently,  Article   335  of   the Constitution  of  India  cannot  by itself  be  applied  for regulating  the  admission  of  eligible  reserved  category students  to  postgraduate  medical  courses  in  the  seats reserved for them under Article 15(4) of the Constitution of India.   The next question that falls for consideration that even  assuming that Article 335 cannot be pressed in service while  considering the question of admission of eligible and qualified  candidates for enabling them to pursue courses of postgraduate medical studies the guidelines laid down by the Medical  Council  of India pursuant to the regulations  made under  Section  33 of the Indian Medical Council  Act,  even though  persuasive  in  nature  and not  mandatory,  can  be totally  by-passed  or  ignored  by  the  State  authorities concerned  with short-listing of candidates for admission to limited  seats  available in medical institutions  imparting postgraduate  medical education?  The answer obviously would be in the negative.  The guidelines laid down by the Medical Council  of India though persuasive have to be kept in  view

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while  deciding as to whether the concession or facility  to be  given  to  such reserved category of  candidates  should remain  within the permissible limits so as not to amount to arbitrary  and unreasonable grant of concessions wiping  out the  concept  of  merit in its entirety.   Consequently,  it cannot  be  said that even though short-listing of  eligible candidates  is  permissible to the State authorities,  while doing  so, the State authorities can completely give a go-by to  the concept of merit and can go to the extent of totally dispensing   with  qualifying  marks   for  SC,ST  and   OBC candidates  and can short-list them for being considered for admission  to  reserved  categories  of seats  for  them  in postgraduate  studies  by reducing the qualifying  marks  to even  zero.  That was rightly frowned upon by this court  in Sadhana  Devis  case  (supra) as that would not  amount  to short-listing but on the contrary would amount to completely long  listing  of such reserved category candidates for  the vacancies  which  are  reserved for them and on  which  they would not be entitled to be admitted if they did not qualify according  to  even reduced bench marks or qualifying  marks fixed  for them.  As seen earlier, keeping in view the ratio of  the  Constitution bench of this court in M.R.   Balajis case (supra) it must be held that along with the permissible reservation  of  50%  of  seats  for  reserved  category  of candidates  in institutions imparting postgraduate  studies, simultaneously  if further concessions by way of  facilities are  to be given for such reserved category of candidates so as  to enable them to effectively occupy the seats  reserved for  them, such concessions by way of dilution of qualifying marks to be obtained at the entrance test for the purpose of short-listing, can also not go beyond the permissible limits of  50%  of the qualifying marks uniformly fixed  for  other candidates  belonging to general category and who appear  at the  same competitive test along with the reserved  category of  candidates.  It is found from the records of these cases that  qualifying  marks  at the entrance  test  for  general category  of  candidates are fixed at 50%.  In fact such  is the  general  standard of qualifying marks suggested by  the Medical  Council  of  India even at the  stage  of  entrance examination  to MBBS course which is at the gross-root level of  medical  education  after a student  has  completed  his secondary  education.  Thus it would be proper to proceed on the  basis  that minimum qualifying marks for  clearing  the entrance  test by way of short-listing for getting  admitted to postgraduate medical courses uniformly for all candidates who  appear at such examination should be 50% but so far  as reserved  category  of  candidates  are  concerned  who  are otherwise   eligible   for  competing   for  seats  in   the postgraduate  medical courses, 50% reduction at the  highest of  the general bench marks by way of permissible concession would  enable the State authorities to reduce the qualifying marks for passing such entrance examination up to 50% of 50% i.e.   25%.  In other words, if qualifying marks for passing the  entrance examination for being admitted to postgraduate medical  courses  is 50% for a general  category  candidate, then  such  qualifying  marks by way of  concession  can  be reduced  for reserved category candidates to 25% which would be  the maximum permissible limit of reduction or  deviation from  the  general  bench marks.  Meaning  thereby,  that  a reserved category candidate even if gets 25% of the marks at such  a common entrance test he can be considered for  being admitted  to the reserved vacancy for which he is  otherwise eligible.   But  below  25%  of  bench  marks  for  reserved category   of  candidates,  no   further  dilution  can   be permitted.   In  other  words, concession  or  facility  for

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reserved category of candidates can remain permissible under Article  15(4) up to only 50% of bench marks prescribed  for general  category  candidates.  The State cannot reduce  the qualifying  marks for a reserved category of candidate below 25%  nor  can it go up to zero as tried to be  suggested  by Shri P.P.Rao, learned senior counsel for the State of Madhya Pradesh  as  that  would  not   amount  to  the  process  of short-listing  but  would in fact amount to long listing  or comprehensive   listing  of  such   reserved   category   of candidates  as  seen earlier.  Any such attempt  to  further dilute  the  qualifying  marks or bench marks  for  reserved category  of  candidates  below 25% of the  general  passing marks  would be violative of the provisions of Article 15(4) as  laid down by the Constitution Bench in M.R.Balajis case (supra)  and would also remain unreasonable and would be hit by  Article  14 of the Constitution of India.   Within  this sliding  scale  of percentages between 25% and  50%  passing marks  appropriate bench marks for passing the entrance test examination  can  be  suitably  fixed   for  SC/ST  and  OBC candidates  as exigencies of the situation may require.  But in  no  case the qualifying marks for any of these  reserved categories  of  students  can go below 25%  of  the  general passing  marks.   Any reserved category candidate  who  gets less  than 25% of marks at the entrance examination or  less than   prescribed  reduced  percentage  of  marks  for   the concerned  category  between  50% and 25% of  passing  marks cannot  be called for counselling and has to be ruled out of consideration  and in that process if any seats reserved for reserved categories concerned remains unfilled by candidates belonging  to  that  category  it must  go  to  the  general category  and  can  be  filled in by  the  general  category candidate  who has already obtained 50% or more marks at the entrance  examination  but  who could  not  be  accommodated because  of  lesser percentage of marks obtained by him  qua other  general category candidates in the limited number  of seats   available  to  them  in   a  given  institution   in postgraduate  studies.   As we will presently show  even  if minimum  passing marks in the entrance test for admission to postgraduate  courses is either reduced to 25% uniformly for all  the  candidates  or  is reduced and  diluted  only  for reserved category of candidates, the net result would remain substantially  the same.  This aspect can be highlighted  by taking  an  illustration.  Suppose there are six seats in  a given  postgraduate medical course.  Then applying the ratio of  50%  permissible  reservation  of  seats  for   reserved category  of candidates like SC/ST and OBCs three seats  get reserved,  one each for SC,ST and OBC while three seats will remain  available to general category of candidates  passing the common entrance test.  On the basis of this illustration let  us  take a hypothetical case of 13 eligible  candidates who  have  passed  basic  MBBS   examination  and  are  duly qualified  to compete for the six seats in a given course of postgraduate  study.  These 13 candidates undertake the same entrance  test and all of them as a result of the said  test obtained  marks as under :  A 75 out of 100, B 70, C(SC) 65, D  60,  E(SC) 55, F51, G50, H(OBC) 48, I 42, J(ST) 40,  K35, L30, M25, N (SC) 21.  In the aforesaid illustration C, E and N  are SC candidates, H is OBC and J is a ST candidate.  Now if 50% passing marks are uniformly applied to all of them as tried   to  be  suggested  by   learned  counsel   for   the petitioners,  the following picture will emerge :  Situation No.1:  Seat numbers 1,2, and 3 are general seats, 4 reserved for  SC,  5 reserved for ST and 6 reserved for OBC.  If  50% passing  marks are uniformly applied to seat nos.1,2,3,4,5 & 6  :   Seat no.1 will go to A, 2 to B, 3 to C (SC), 4  to  E

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(SC),  seat  nos.5&6 will not get filled in by the  reserved category candidates as there are no ST or OBC candidates who have  obtained  50% and more marks.  These two  seats  which remain  unfilled  will  go  to  D  and  F  general  category candidates  who  have obtained more than 50% marks, but  who could  not be accommodated in the seats available to general category  of candidates as the last candidate in the general category  who got admission though SC, was having 65% marks. Thus the situation would be the two seats i.e.  seat nos.  5 and  6 which are reserved for ST and OBC and were  otherwise not available to general category of candidates would not go to  eligible  and qualified ST and OBC candidates namely,  H and J even though they had obtained MBBS degrees and had the basic  qualification  and eligibility for being admitted  to the  seats  reserved  for them.  That may  affect  the  real purpose   underlying   reservation   under  Article   15(4). Situation  No.2:  We may now take the alternative  situation for  consideration  :  If the minimum qualifying  marks  are reduced  to  25%  for all categories of  candidates  to  the rock-bottom  permissible  limit  including SC/ST  and  other reserved  category  candidates, then the  following  picture would emerge :  Seat no.1 will go to A, seat no.2 will go to B,  seat no.3 will go to C(SC), seat no.4 which is  reserved for  SC candidate will go to E, seat no.5 which is  reserved for  ST  will go to J, seat no.6 which is reserved  for  OBC will go to H.  All six seats will be filled up by A,B, C,E,J &  H.  Thus even if the minimum passing marks are  uniformly reduced to 25% which is the permissible rock- bottom as seen earlier  the  general category candidates will get the  same seats  which  would have been available to them even if  the minimum  qualifying  marks  for admission  would  have  been uniformly  kept  at 50% for all candidates at  the  entrance test.   But what will happen is, that by reduction of  these qualifying marks to 25% all the reserved category seats 4 to 6  will  get filled in by otherwise eligible  and  qualified reserved category candidates E,J and H and there will remain no  occasion for making any of such seats available to  left out  general category candidates like D and F for whom  they were not meant even otherwise and reservation of seats under Article 15(4) would get fully fructified.

     Situation  no.3:   Now let us assume that for  general category  candidates  minimum passing marks at the  entrance test  are  kept at 50% but for reserved category  candidates the passing marks are reduced to the permissible rock-bottom limit  of 25%.  If that happens, the result would remain the same,  namely,  as found in situation no.2, i.e.  A will  be admitted  to  seat no.1, B will be admitted to seat no.2,  C (SC)  will  be admitted to seat no.3, E will be admitted  to seat  no.4 reserved for SC, J will be admitted to seat  no.5 reserved for ST and H will be admitted to seat no.6 reserved for  OBC.  Then the net result would be that because of  the limited  deviation  of  minimum qualifying  marks  only  for reserved  category  candidates,  E,  J & H  who  would  have otherwise  been admitted to reserved category seats even  if there  was  universal  and uniform reduction  of  qualifying marks  at  25%, will get the same benefit without  affecting the  admission  of general category  candidates.   Situation No.4:   As minimum qualifying marks for reserved category of candidates  are  kept at 25% and are not reduced  below  the same, candidate N who is a SC candidate and who has obtained only  21% passing marks at the entrance test will be totally ruled out of consideration, but even if the qualifying marks are  reduced  to below the permissible limit of 25%, N  will not get any seat as the seat reserved for such candidates is

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only  one  being no.  4 in the said course of study  and  is already occupied by E who is a more meritorious SC candidate qua  N.   Situation No.5:  Now let us consider  a  situation wherein  E  a  SC  candidate, who is  entitled  to  reserved category  seat  no.4  and has excluded D who  is  a  general category  candidate  who  has obtained more marks  than  him because  of such permissible reservation of a seat for  him, for  any  reason does not join the course of study  and  his seat becomes vacant, then in such a situation, the following picture  may  emerge in different categories of cases  where minimum  passing marks are fixed differently :  i) In case E is not available and 50% minimum passing marks are fixed for all  categories  of candidates then seat no.1 will go to  A, seat  no.2 will go to B., seat no.3 will go to C, seat  no.4 would  not go to N who is the next eligible SC candidate who has  qualified  for  being admitted but has  got  less  than passing  marks at the entrance test.  That seat will  remain unoccupied  and will go to the general category candidate D. Seat  no.5 which is reserved for ST person also cannot go to J as he has got less than the passing marks.  Seat no.5 will therefore,  go  to F.  Seat no.6 reserved for OBC also  will not  go  to  H as he has got only 48% marks, less  than  the minimum passing marks.  His seat will go to general category candidates  who are in the waiting list and will be  offered to  G  who  has  just got the passing marks.   Thus  in  the absence  of availability of E the six seats will go as under :  A,B,C,D,F & G.  Thus all the reserved category seats will remain  unfilled by reserved category candidates and will be added to general category seats.  Result will be reservation under  Article 15(4) will totally fail.  ii) Now let us take another  category  of situation where minimum passing  marks are fixed at 25% for all candidates.  In that case even if E is not available then the first three general category seats will  go to A,B,C and the 4th seat reserved for SC candidate will  remain  unfilled  as the next  available  eligible  SC candidate  is N who has got less than 25% minimum marks.  So his seat will go to the general category candidate who is in the waiting list namely, D.  While seat no.4 reserved for ST candidate  will  go  to  J and seat no.6  reserved  for  OBC candidate  will go to H.  Therefore, the net result will  be as under :  1 to 6 seats will go to A,B,C,D,J & H.  iii) The same  result  would follow for general  category  candidates even  if the minimum passing marks are fixed at 50% and  for the  reserved  category  candidates the  minimum  qualifying marks  are reduced to 25%.  Then the first three seats  will go  to A,B,C, and seat no.4 not occupied by E a SC candidate cannot  go to N the next SC candidate who has got less  than 25%  marks.   It  will  be occupied by D  from  the  general category  candidates.   While  seat no.5 will go to J  a  ST candidate  who has more than 25% marks and seat no.6 will go to  H who is a OBC candidate having got 48% marks.  Thus the six  seats will go to A,B,C,D,J & H.  Thus it is clear  that where  the  minimum passing marks are uniformly reduced  for all  candidates or they are reduced only for backward  class candidates  but  to  the same extent, the  result  regarding occupation of these seats by general category candidates and reserved  candidates  would  remain the same if E  does  not occupy the seat available to him as an SC candidate.  iv) If for  any  reason the minimum qualifying marks  for  reserved category candidates are still further reduced to 20% then in the absence of availability of a SC candidate E, the next SC candidate  N  having  21%  may get it and  occupy  the  seat reserved  for  a  SC  candidate.  In such  a  situation  the following  picture  will emerge :  1 to 3 will go to  A,B,C; seat  no.4  reserved for SC candidate will go to N and  seat

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no.5  will  go to ST candidate J and seat no.6 reserved  for OBC  candidate  will go to H.  Resultantly no seat  will  be left  for being made available to general category candidate D and he will get excluded.  But as we have seen earlier, if concession  or  dilution of minimum qualifying marks at  the entrance  test for admission to postgraduate medical courses is kept within the permissible limit of 50% dilution and can go down only up to 25% minimum qualifying marks for reserved category  candidates  then  N  in no case would  get  in  to displace  D who is a general category candidate and who  had an  opportunity to get in vis-a-vis the seat reserved for SC candidate as E the eligible SC candidate is not available at a  given  point of time.  The aforesaid  illustration  shows that  as  C  (SC  candidate) has got  the  seat  in  general category  on  his  own  merit his occupancy  is  not  to  be considered while granting admission to the seat reserved for SC  candidate  as held by a Constitution bench  decision  of this Court in R.K.  Sabharwal & Ors.  vs.  State of Punjab & Ors.,  1995(2)  SCC  745.   We may at this  stage  refer  to decision  of  a  three  Judge bench of  this  court  in  Dr. Pradeep Jain & Ors.  vs.  Union of India & Ors., 1984(3) SCC 654,  wherein  in  the  context of  reservation  in  medical education   courses   on  the   basis  of   territorial   or institutional  preference,  Bhagwati, J., speaking  for  the court  in para 22 of the Report observed as under :  But as far  as  admissions to postgraduate courses, such as MS,  MD and  the like are concerned, it would be eminently desirable not  to  provide  for  any reservation  based  on  residence requirement within the State or on institutional preference. There  the  excellence  cannot be compromised by  any  other considerations  because  that  would be detrimental  to  the interest  of  the  nation. It is of course true  that  the aforesaid  observations were made not with reference to  any reservations   as  per  Article   15(4).    However,   while considering  the extent of dilution of minimum passing marks in  the  entrance  examination  for  admission  of  reserved category  candidates  to postgraduate medical  courses,  the permissible  limit below which the concessions available  to reserved  category of candidates cannot be permitted to  go, would  require serious consideration, otherwise merit  would be  totally by-passed and jeopardised.  It is also pertinent to note that in the aforesaid decision the permissible limit of  reservation by way of institutional preference was  held to  be  only up to 50% of the total available seats.   While dealing  with  the  scope  and ambit  of  reservation  under Article  15(4)  in postgraduate courses, which of course  is not  in  challenge before us, we have also to keep in  view, the  observations  of the nine Judge bench of this Court  in Indra  Sawhneys case (supra).  In para 146 of the Report at page  401  Pandian,  J., concurring with the  main  majority decision rendered by Jeevan Reddy, J., observed that :  The basic policy of reservation is to off-set the inequality and remove  the  manifest  imbalance, the victims of  which  for bygone  generations  lag far behind and demand  equality  by special  preferences  and  their strategies.   Therefore,  a comprehensive    methodological     approach    encompassing jurisprudential, comparative, historical and anthropological conditions   is   necessary.    Such  considerations   raise controversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who  have fallen victims of societal discrimination  require compensatory treatment.  Needless to emphasise that equality in  fact  or substantive equality involves the necessity  of beneficial  treatment  in order to attain the  result  which establishes  an  equilibrium  between  two  sections  placed

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unequally.

     Same  learned  Judge  at pages 402-403 of  the  Report considered a passage by Allan P.  Sindler in his book Bakke, Defunis  and  Minority  Admissions   (The  Quest  for  Equal Opportunity)  which  dealt with a running race  between  two persons i.e.  one who has his legs shackled and another not. In  such  a race between unequals it was found necessary  to remove  the  inequality  between the two runners  by  giving compensatory edge to the shackled runner.  The learned Judge also  noted  the  submission  of  learned  counsel  for  the petitioners  who  demonstrably explained that  as  unwatered seeds  do not germinate, unprotected backward class citizens will  whither  away.   In  the  earlier  Constitution  bench judgment  in  M.R.Balaji  vs.    State  of  Mysore  (supra), Gajendragadkar,  J.,  at page 467 of the Report, this  Court made  the following pertinent observations with reference to Article  15(4)  :   When Art.15(4) refers  to  the  special provision   for  the  advancement  of  certain  classes   or scheduled castes or scheduled tribes, it must not be ignored that  the  provision  which is authorised to be  made  is  a special provision;  it is not a provision which is exclusive in  character,  so that in looking after the advancement  of those  classes,  the  State would be justified  in  ignoring altogether  the advancement of the rest of the society.   It is  because  the interests of the society at large would  be served  by promoting the advancement of the weaker  elements in  the society that Art.15(4) authorises special  provision to be made.

     We  may also refer to the contention of learned senior counsel  Shri Rajendra Sachar, placing reliance on page  474 of  the  Report in M.R.Balajis case (supra) to  the  effect that  the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any  reservation at the cost of efficiency of administration and  that  it  was undoubtedly the effect  of  Article  335. Therefore,  what  is true in regard to Art.15(4) is  equally true  in regard to Art.16(4). These observations,  strongly relied  upon  by  Shri Sachar for importing  the  impact  of Article  335 on the reservations under Article 15(4)  cannot be  treated  to  be  of any real  assistance  to  him.   The aforesaid  observations were made by the Constitution  bench while considering the reasonableness of reservation of seats in  educational institutions and for highlighting the  point that  such reservation of seats should not be more than  50% and  reservation  of  68%  of   seats  was  not  within  the permissible  limit of special provision under Article 15(4). From  these observations, it cannot necessarily follow  that admission   to  such  reserved   seats  can  tantamount   to appointments  to  any posts to which Article 335  would  get directly  attracted.   While   considering  the  permissible limits  of  dilution of minimum passing marks  for  reserved category candidates appearing at the entrance test for being called  for  counselling  for   admissions  to  postgraduate medical  courses,  we have to keep in view the salient  fact that different universities examining students for obtaining MBBS  degrees  on  the basis of the same syllabus  may  have different  yardsticks and standards of assessment of  papers and,  therefore,  students passing their  MBBS  examinations from  different universities cannot ipso facto be treated to be  equally meritorious and consequently the common entrance test for admission to postgraduate courses cannot be said to be  totally  uncalled for.  However, because reservation  of seats  at postgraduate educational level is countenanced, as

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a  logical corollary, to make effective the reservations and with a view to seeing that the reserved category students do not  get excluded from getting admitted as far as  possible, provision  for lesser qualifying marks for reserved category candidates  at the common entrance test cannot be said to be totally  illegal.   However,  with  a view  to  seeing  that crutches  provided to such weaker sections of society do not cripple  them for ever, the dilution of passing marks at the common  entrance  test  at   which  such  reserved  category candidates  appear  after obtaining their MBBS degrees  from different  universities cannot be totally arbitrary and must have  a permissible rock-bottom limit below which it  cannot go  and  that  is  why it is reasonable to  hold  that  when reservation  of  seats under Article 15(4)  in  postgraduate medical   courses  cannot  exceed  50%   as  held   by   the Constitution  bench  in M.R.  Balajis case (supra) then  on the same line of reasoning additional facilities to be given to  such reserved category candidates for being admitted  to the  seats  reserved  for them in the  postgraduate  medical courses  also should not exceed the permissible limit of 50% dilution  from the general cut-off marks provided  uniformly for  general category of candidates competing for  admission to  such  limited  number of seats  at  postgraduate  level. While  dealing  with  the question of  dilution  of  minimum passing  marks for reserved category of candidates appearing at  the entrance tests for admission to postgraduate courses it  has  to be kept in view that general  category  students form  a  separate  class as compared  to  reserved  category candidates  for whom seats are reserved under Article 15(4). Once  that is kept in view, as a logical corollary, it  must follow  that to make such reservations effective appropriate dilution of the minimum cut-off marks for students belonging to the reserved category would become permissible subject to the  rider that such dilution should not be so  unreasonable as  to  go  out  of the beneficial  protective  umbrella  of Article  15(4)  as seen earlier.  If that happens  it  would squarely  get  hit by Article 15(1) read with Article 14  of the Constitution of India.  However, within such permissible limits  such  dilution for different reserved categories  of candidates  who  may be given benefit of sliding  scales  of reduced passing marks as required by exigencies of situation would   remain  legal  and   valid.   In  this   connection, observations  in  the  Constitution bench judgment  of  this court  in  Chitra Ghosh & Anr.  vs.  Union of India  &  Ors. (supra),  wherein  Grover,  J., spoke for  the  Constitution bench  as to which we have made a detailed reference earlier are  required  to be kept in view.  To recapitulate, it  has been   held  that  selection  of  eligible  candidates   for admission to medical courses can be made by classifying such candidates  category-wise keeping in view the services  from which  they  are  drawn.   The  aforesaid  decision  of  the Constitution   bench  was  directly   concerned   with   the admissions  in  medical  colleges.  It  would  squarely  get attracted  while  deciding the present controversy.   It  is obvious  that if for admission to a medical education course at  gross-root level of MBBS, different rules for  selecting candidates  from different sources from which they are to be drawn  are countenanced, then even at the stage of admission at  postgraduate level, the ratio of the aforesaid  decision of  the Constitution bench would squarely get attracted  and would  permit  separate  treatment for students  drawn  from different  sources.   It is of course true that in the  said case,   the  Constitution  bench   was  concerned  with  the nominations made by the Central Government on seats reserved for such nominees.  However, that would not whittle down the

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decision  of the Constitution bench to the effect that while imparting  education  in  theory  and  practice  in  medical courses of study, the source from which candidates are drawn can  be a relevant classificatory criterion and there can be different  rules  in the matter of selection  of  candidates drawn from different sources.  It is axiomatic that reserved category  candidates  competing  for being selected  to  the seats  reserved for them in postgraduate medical courses  as per the mandate of Article 15(4) of the Constitution have to compete  inter  se with their own colleagues from  the  same categories  and not necessarily have to compete with general category  candidates  who form entirely a  different  class. Once  such  classification is countenanced, as  a  necessary concomitant,  separate  provision for reserved  category  of candidates forming a separate class for which reservation of seats in postgraduate medical courses is permitted cannot be faulted  and hence the dilution of minimum qualifying  marks for  reserved  category  of candidates cannot by  itself  be treated  to be unauthorised or illegal from any view  point. Otherwise the very purpose of reserving seats for such class of  candidates  at postgraduate level of  medical  education would  be  denuded  on its real content and the  purpose  of reservation  would  fail.   The   seats  reserved  for  such category  of  persons would go unfilled and will  swell  the admission  of general category of candidates for whom  these seats  are  not at all meant to be made available, once  the scheme  of reservation of seats under Article 15(4) is  held applicable.   In the light of the aforesaid discussion,  the following  conclusions emerge :  1) It is permissible to the            JJJJJJJJJJJJJJJJJJJJ State  authorities which are running and/or controlling  the medical  institutions in the States concerned to  short-list the eligible and qualified MBBS doctors for being considered for  admission  to  postgraduate medical  courses  in  these institutions.   For  the purpose of such short-listing  full play  is  available  to the State  authorities  to  exercise legislative  or executive power as the field is not occupied till  date  by  any legislation of the  Parliament  on  this aspect  in exercise of its legislative powers under Entry 25 of  List III of the Constitution of India and this topic  is also not covered by any legislation under Entry 66 of List I of  the Constitution.  2) The Indian Medical Council Act and the  regulations framed thereunder do not cover the question of short-listing of admission of eligible and duly qualified MBBS  doctors  who  seek   admission  to  different  medical institutions   imparting  postgraduate   education  run   or controlled  by the States concerned.  3) The regulations and guidelines  given  by the Medical Council of India  in  this connection,  though  persuasive and not having  any  binding force,  cannot  be totally ignored by the State  authorities but  must  be  broadly kept in view  while  undertaking  the exercise  of short-listing of eligible candidates for  being admitted   to  postgraduate  medical   courses.   4)   While short-listing candidates having basic qualifications of MBBS for  being  considered  for admission to limited  number  of vacancies  in postgraduate courses available at the  medical institutions  in the Sates, it is permissible for the  State authorities  to have common entrance tests and to  prescribe minimum  qualifying  marks for passing such tests to  enable the   examinees  who  pass  such   test  to  be  called  for counselling.   That  would  be  in  addition  to  the  basic qualification by way of MBBS degree.  The performance of the candidate  concerned during the time he or she undertook the study  at MBBS level for ultimately getting the MBBS  degree also  would  be  a  relevant  consideration  for  the  State

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authorities   to  be  kept  in   view.   5)  It  is  equally permissible  for the State authorities while undertaking the aforesaid  exercise  of  short-listing to  fix  50%  minimum qualifying  marks at the entrance test for general  category of  candidates and to dilute and prescribe lesser percentage of  passing  marks  for reserved category of  candidates  as exigencies  of situation may require in a given year but  in no case the minimum qualifying marks as reduced for reserved category of candidates can go below 25% of passing marks for such  reserved  category of candidates.  In other  words,  a play  is  available  to the State authorities  to  prescribe different  minimum passing marks for SC/ST and OBC  eligible candidates  between 50% and 25% as the prevailing  situation at  a  given point of time may require.  In such  categories for  SC, ST & OBC candidates different diluted passing marks can  be  prescribed, but this exercise has to be within  the permissible  limits  of  less than 50% & up to  minimum  25% passing  marks  for  each of such reserved  categories.   No eligible  candidate belonging to reserved category who  does not  obtain minimum percent of passing marks as diluted  for such  category of candidates by the State authorities can be considered  to  be  eligible  for  undertaking  postgraduate medical courses in a given year for which he has offered his candidature  and if any seat reserved for such categories of candidates  remain unfilled due to non-availability of  such eligible  reserved category candidate to fill up such  seat, then  the said seat would go to general category  candidates and  will be available in the order of merit in the light of marks   obtained  by  such   wait-listed  general   category candidates  having  obtained  requisite  passing  marks  who otherwise  could not get admitted due to non-availability of general  category  seats  earlier.   The  ratio  of  various decisions of this court considered herein above will have to be  implemented in the light of the aforesaid conclusions to which  we  have reached.  The aforesaid practice has  to  be followed and should hold the field from year to year so long as  the  Parliament  does  not   pass  any  legislation  for regulating  admission to postgraduate medical courses either by  separate legislation or by appropriately amending Indian Medical  Council  Act by empowering the Medical  Council  of India to prescribe such regulations.  The writ petitions and the  civil appeal arising out of the special leave  petition as  well  as  the review petitions would stand  disposed  of accordingly  in  the  aforesaid   terms  and  the  judgments rendered  by  the  High Courts will stand modified  and  the impugned  orders  passed by the State authorities will  also stand  set aside accordingly.  However, the present judgment will  operate  purely prospectively and will not affect  the admissions  already granted by the concerned authorities  in the  postgraduate medical courses prior to the date of  this judgment.   In other words, the State authorities will  have to comply with the directions contained in this judgment and put  their  house in order for regulating the admissions  to postgraduate  medical  courses starting hereinafter  in  the medical institutions concerned.

____________________________________________________________

Mrs. Sujata V.Manohar, J.

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

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     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 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

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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 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

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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.

     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

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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 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

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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 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

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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 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

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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 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

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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 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

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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 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

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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 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.

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     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 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

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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.

     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

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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 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

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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 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

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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 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

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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 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

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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 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

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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 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

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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; 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

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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 .............".

     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."

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     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 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.

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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 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.

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     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 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

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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 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

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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. (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.

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     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 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

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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.

     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

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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."

     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

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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.