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PETITIONER: STATE OF M.P. AND ANR.

       Vs.

RESPONDENT: KUMARI NIVEDITA JAIN AND ORS.

DATE OF JUDGMENT22/09/1981

BENCH: SEN, AMARENDRA NATH (J) BENCH: SEN, AMARENDRA NATH (J) CHANDRACHUD, Y.V. ((CJ) VARADARAJAN, A. (J)

CITATION:  1981 AIR 2045            1982 SCR  (1) 759  1981 SCC  (4) 296        1981 SCALE  (3)1512  CITATOR INFO :  RF         1984 SC 873  (5)  R          1988 SC1048  (14)

ACT:      Right of opportunity for admission to medical colleges- Rules  for   Admission  into   the  Medical,  Dentistry  and Ayurvedic Colleges  in Madhya  Pradesh prescribing selection purely on merit from amongst those who have qualified in the written  examination-Reservation   as  seats  for  scheduled Castes and  Scheduled Tribes  to the  extent of 15% for each category subject to a provision in Rule 9 to the effect that unfilled vacancies  should go to candidates available on the combined Merit  List-State Government  by an executive order dated 9th September, 1980 completely relaxing the conditions relating to the minimum qualification marks for selection to medical colleges in favour of Scheduled Castes and Scheduled Tribes-Whether the  executive order  offends Articles 14 and 15 of the Constitution and ordinance 54 of the University of Jabalpur, Regulation  2 of the Medical Council of India read with section 19 of the Indian Medical Council Act, 1956.

HEADNOTE:      In exercise of its executive power the State Government of Madhya  Pradesh made  by its  order dated 2nd April, 1980 the Rules  for admission  into the  Medical,  Dentistal  and Ayurvedic Colleges  in Madhya  Pradesh. By  and under Rule 7 the State  Government has  reserved 15% of seats for each of the categories  of Scheduled  Castes  and  Scheduled  Tribes candidates. Rule  20 lays  down that selection of candidates from amongst  those who  have qualified  in the  examination shall be made strictly on merit as disclosed by total number of  marks   obtained  by   candidates  in   the  pre-medical examination.  Rule   20  further   provides   that   minimum qualifying marks  for admission to Medical Colleges shall be 50% in  the aggregate  and 33% in each subject respectively; but for Scheduled Castes and Scheduled Tribes candidates the minimum qualifying  marks shall  be 40% in the aggregate and 30% in  each subject.  Note (ii)  below Rule 20 empowers the Government to  grant in  case of  candidate belonging to the categories of  Scheduled Castes and Scheduled Tribes special relaxation in  the minimum  qualifying marks  to the  extent

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considered necessary  in the event of the required number of candidates in these two categories not being available. Rule 9 contains  a provision  to the  effect that  in case  seats reserved for  categories of  Scheduled Castes  and Scheduled Tribes remain  vacant, these  seats will  be  filled  up  by candidates available  on the  combined merit list. The total number of  seats in  all the  Medical Colleges  being 720 in number,  108   seats  each  for  the  Scheduled  Castes  and Scheduled Tribes became reserved under Rule 7. 760      For admission  to The Medical Colleges for the academic year 1980-8., there were 9400 candidates in all of which 623 candidates were  from Scheduled  Castes and  145  candidates were from  schedule Tribe.  On the result of the pre-medical examination only  18 seats in the category of Schedule Casts and 2 seats in the Schedule Tribe could be filled up because the other  candidates of these categories did not secure the qualifying marks  prescribed by Rule 20. The selection Board in exercise  of the  power under note (i) to Rule  20 made a relaxation of  5% in  terms thereof  and thereafter  7  more candidates in the category of Schedule Casts and one more in the category  of Schedule  Tribes  got  admitted  leaving  a balance of  83   seats under  Schedule Casts  quota, and 105 seats under  the Schedule  Tribes quota   to  be  filled  as provided for  under Rule 9. But the State Government, by its order  dated   9th  September  1980  removed  the  condition relating to  minimum  qualifying  marks  in  favour  of  the candidates from amongst Schedule Castes and Schedule Tribes.      The respondent  belonging to  the general  category who obtained the  minimum qualifying  marks but could not secure admission as  other candidates  for the  general  seats  had obtained  marks   higher  than   she  had  obtained  in  the premedical  examination   for  filling   up  the   vacancies available in  the general  category, would  have been  in  a position to  secure admission to the Medical College but for the  complete  relaxation  granted  by  the  impugned  order without complying  with  the  provisions  of  Rule  9.  She, therefore, filed  a writ  petition in  the High Court on the grounds, inter  alia, (1)  that the  order of the Government contravenes Regulation  II of  the Medical  Council of India and would  hit Section 19  of the Indian medical council Act 1956 exposing  the Medical   colleges  to the  risk of being derecognised:(2) that  the  order  of  the  Government  will have the  effect  of  allowing    less  qualified  and  less deserving  candidates  to  fill  up  the  seats  and  would, therefore, destroy  equality and  violate Articles 14 and 15 of the  Constitution ;  and (3)   the order was violative of Ordinance 94  of the University of Jabal pur. The High Court accepted the  contentions of the writ petitioner and allowed the petition. Hence the appeal by the State, after obtaining special leave.      Allowing the appeals, the Court, ^      HELD: 1.  The executive order dated 9th September, 1980 passed by  the State  cf Madhya  Pradesh completely relaxing the conditions  relating to the minimum qualifying marks for selection of  students to  Medical Colleges  of the State in respect of  candidates belonging  to Schedule    Castes  and Scheduled Tribes  is not  violative of  either  Article  14, 15(1) or 15(2) or 15 (4). [785 G, 788 C]      2. The  relaxation does  not offend  Article 14  of the Constitution.  There  is  no  relaxation  of  the  condition regarding  eligibility   for  and   admission  into  Medical Colleges. The  relaxation is  only  in  the  rule  regarding selection of  candidates belonging  to Scheduled  Castes and

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Scheduled Tribes  who were  otherwise qualified and eligible to seek  admission into Medical Colleges only in relation to seats  reserved  for  them.  Further  the  validity  of  the reservation of  seats for  candidates belonging  to Schedule Castes and  Scheduled Tribes  have not  been challenged  and very properly in view of Article 15 (4) of the Constitution. [786 E-G]      3. The relaxation cannot be said to be unreasonable and does  not  violate  Articles  15(1),  (2)  and  (4)  of  the Constitution. The State must do everything 761 possible for  the upliftment  of  the  Schedule  Castes  and Scheduled Tribes  and other  backward communities  and it is entitled to  make reservations  for them  in the  matter  of admission to  medical and  other technical  institutions. In the absence  of any  law to  the contrary, it must also been 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  condition;  regarding, selection for  admission if  such modification  or variation becomes  necessary  for  achieving  the  purpose  for  which reservation has  been made  and if  there be  no law  to the contrary. Note  (ii) of  rule 20  of the Rules for admission framed by  the State  Government specifically  empowers  the Government  to   grant  such   relaxation  in   the  minimum qualifying marks  to the  extent considered  necessary.  The order  can   be  supported   under  Article   15(4)  of  the Constitution. [785 H, 786 A-D]      State of  Kerala and  Anr. v. N.M. Thomas, [1976] 1 SCR 906; Jagdish  Saran and  Ors. v.  Union of  India and  ors., [1980] 2 SCR 831, followed.      Amalendu Kumar  v. State  of Bihar,  AIR 1980  Patna  1 overruled.      4. Under  Article 162 of the Constitution the executive power of a State, extends to the matter with regard to which the Legislature  of a State has power to make laws. 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. [785 D.E]      State of  Andhra Pradesh  and Ors. v. Lavu Narendranath and Ors. etc. etc., [1971] 3 SCR 699, reiterated.      5:1. Regulation  II of  the Indian  Medical Council  is merely directory  and in the nature of a recommendation and, therefore has  no such  statutory force  as  to  render  the executive order  dated 9th September, 1980 which contravenes the said  Regulation illegal,  invalid and unconstitutional. [785 B-Cl      Entry 66 in List I (Union List) of the Seventh Schedule to  the   Constitution   relates   to   "co-ordination   and determination  of   standard  in   institutions  for  higher education  or   research  and   scientific   and   technical institutions". This  entry  by  itself  does  not  have  any bearing on  the question  of selection  of candidates to the Medical Colleges  from amongst  candidates who  are eligible for such  admission. On  the other hand, entry 25 in List II (Concurrent List) of the same Schedule speaks of "education, including  technical   education,   medical   education   in Universities, subject  to entries  63, 64, 65 and 66 of List I.. vocational and technical training of labour". This entry is wide  enough to  include within its ambit the question of

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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. [784 G.H, 785 A-C]      5:2. Regulation I of the Medical Council prescribes the requisites which  have  to  be  satisfied  to  enable  every student to  become eligible  or qualified  to seek admission and the  process of  selection  comes  thereafter.  As  this Regulation is 762 within the competence of the Council the Council, has framed this Regulation  in a manner which leaves no doubt that this Regulation is mandatory. [783 B-C]      5:3. Regulation  II of  the, Council  is merely  in the nature of  a recommendation.  Regulation II  begins with the words "selection  of students  in medical  college should be based solely  on merit".  Language used  in Regulation II is deliberate and  is intended to indicate the intention of the Council that  it is  only in the nature of a recommendation. By way  of solution  to the  problem of dearth of seats, the Council appears  to have  thought  it  fit  to  suggest  the procedure which  will have  the  effect  of  selecting  such candidates  on  the  basis  of  merit  only.  The  procedure suggested  is   intended  to   do  away  with  nepotism  and favoritism and  any unfair  practice in  the matter  of such admission, as  the procedure  recommends  merit  to  be  the criterion.  Regulation   II  recommending   the  process  of selection is  outside the  authority of  the  Council  under section 33  of the  Act and  the Council  has advisedly  and deliberately used  such language  in Regulation  II as makes the position  clear and  places the matter beyond any doubt. Further, apart  from reservations  of  seats  for  Scheduled Castes  and   Scheduled  Tribes   and  other   reservations, reservation of seats is commonly made for being filled up by nomination. In  the instant  case, it appears that seats not exceeding three  per cent  are reserved  for the nominees of the Government  of India  apart from the other reservations. These nominees  of the Central Government do not have to sit for any  premedical examination  to qualify  themselves  for selection to  the Medical  Colleges, They  must of course be eligible for  admission in the sense that they must have the necessary qualification  for admission  in  accordance  with Regulation I. The candidates eligible under Regulation I are selected by virtue of nomination and there is no question of any pre-medical  test for  such candidates  nominated by the Central Government.  If Regulation II could be considered to be  mandatory,   there  could   be  no  such  nomination  of candidates by the Central Government. [783 G-H, 784A-C, E-G]      6:1. An  analysis of the various sections of the Indian Medical Council Act, 1956 indicates that the main purpose of the Act is to establish Medical Council of India, to provide for its constitution. composition and functions and the main function of  the Council is to maintain the medical register of India  and to  maintain  a  proper  standard  of  medical education and  medical ethics  and professional  conduct for medical practitioners.  The scheme  of the Act appears to be that the  Medical Council  of India  is to  be set up in the manner provided  in the  Act and  the Medical  Council  will maintain a  proper medical  register, will prescribe minimum standards  of   medical  education   required  for  granting recognised  medical   qualifications,  will  also  prescribe standards  of   post-graduate  medical  education  and  will further regulate  the standard  of professional  conduct and etiquette and  code of ethics for medical practitioners. The Act further envisages that if it appears to the Council that the courses  of study and examination to be undergone in, or

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the proficiency  required from candidates at any examination held by any University or Medical Institution do not conform to the standard prescribed by the Council or that the staff, equipment, accommodation  training and  other facilities for instructions and  training provided  in such  University  or medical institution  or in any college or other institutions affiliated  to   that  University  do  not  conform  to  the standards prescribed by the Council, the Council will make a representation to that effect to the Central Government and 763 on consideration  of the representation made by the Council, the Central  Government may  take action  in  terms  of  the provisions   contained   in   section   19   of   the   Act.                                           [776 G-H, 777 A-C]      The Act  also empowers  the  Council  to  take  various measures to  enable the  Council  to  judge  whether  proper medical standard  is  being  maintained  in  any  particular institution or not. [777 C-D]      6:2. The authority of the Council extends to the sphere of maintaining  proper medical  standard in Medical Colleges or institutions  necessary for  obtaining recognized medical qualifications. By  virtue of  this authority it may be open to  the   Council  to   lay  down  the  minimum  educational qualifications required  of a student who may seek admission into a Medical College. In other words, the eligibility of a candidate who  may seek  to get  admitted into  a medical (’ college for  obtaining recognized medical qualifications may be prescribed  by the  Council. All  the candidates  who are eligible for admission into Medical Colleges or institutions for getting  themselves qualified  as medical  practitioners are entitled  to seek  admission into  a Medical  College or institution. As  to how  the selection has to be made out of the eligible  candidates  for  admission  into  the  Medical College is  a matter  which has  necessarily  to  depend  on circumstances  and   conditions  prevailing   in  particular States. Though  the question  of eligibility  for  admission into the  medical curriculum  may come  within the power and jurisdiction of  the Council,  the question  of selection of candidates out  of the  candidates eligible  to the  medical course does  not appear  to come  within The  purview of the Council. [777 E-H, 778 A]      6:3.  The   process  of  selection  of  candidates  for admission  to  a  Medical  College  out  of  the  candidates eligible for  admission for filling up the limited vacancies has no  real bearing  on  the  question  of  eligibility  or qualification for  admission or  on the  standard of medical education. The  standard of  medical education  really comes into the  picture in  the course  of studies  in the medical colleges or  institutions after  the selection and admission of  candidates   into  Medical  Colleges  and  institutions. Students who satisfy the requirements of Regulation I become qualified or  eligible to  seek admission  into the  Medical Course. Regulation I prescribes the requisites which have to be satisfied  to enable  every student to become eligible or qualified to  seek admission  and the  process of  selection comes thereafter. [778 C-E]      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. [778 E-F] G      State of  Kerala v. Kumari T. P. Roshana and Ors [1979] 2 SCR  974: Arti Sapru v. State of Jammu and Kashmir and Ors [1980] 3 SCR 34, explained and distinguished.

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JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 554-555 of 1981. 764      From the  judgment and  order dated  the 6th  November, 1980 of  the High  Court of  Madhya Pradesh  at Jabalpur  in Misc. Petition No. 510 and 613 1980.      N.M. Phadke,  A M.  Mathur, Advocate  Genl.  M.P.,  S.K Gambhir and Vijay Hansarra for the Appellants.      S.N. Kackar,  Vineet  Kumar,  Gulab  Gupta,  Naresh  K. Sharma, S.Q.  Hasan, P.N.  Puri, E.M.S. Anam and M.K Dua for the respondents.      B.R. Agarwala for the Medical Council.      S.K Mehta, P.N. Puri and M.K. Dua for the interveners.      The Judgment of the Court was delivered by      AMARENDRA NATH  SEN, J.  The validity  of the executive order  dated   9th  September,  1980  passed  by  the  State Government completely  relaxing the  conditions relating  to the minimum  qualifying marks  for selection  of students to Medical Colleges  of the  State  in  respect  of  candidates belonging  to   Scheduled  Castes   and   Scheduled   Tribes categories forms  the subject  matter of  these  appeals  by Special Leave.      The facts  material for  the purposes  of these appeals may be stated:      Kumari Nivedita  Jain, one  of the  Respondents in  the present appeals,  was a candidate for admission to a Medical College in  the State  of Madhya  Pradesh. In  the State  of Madhya Pradesh  there are six Medical Colleges affiliated to different Universities  in the  State. The  total number  of seats in  all these  Colleges is  720. By an order dated 2nd April, 1980 the State Government made rules for admission to Medical  Colleges,  the  College  of  Dentistry  Indore  and Government Ayurvedic  Colleges of  the State  and  the  said Rules are  called "Rules  for Admission  into  the  Medical, Dentistry  and   Ayurvedic  Colleges   in  Madhya   Pradesh" (hereinafter referred  to as  the Rules).  These Rules  were made in  exercise of  the executive  power of  the State and these Rules  are not  statutory. By  and under Rule 7 of the Rules, the  State Government has reserved 15% seats for each of the  categories of  the Scheduled  Castes  and  Scheduled Tribes candidates.  That means,  out of 720 seats, 108 seats are reserved  for the  Scheduled Castes  candidates; and the same number,  that is,  108 seats  are also reserved for the candidates belonging to 765 the category  of Scheduled  Tribes. By  and under  the  same Rules, 15% seats are reserved for women candidates and seats not exceeding  3% are  reserved for the children of military personnel. Under Rule 8, some further reservations have been made and  under  this  Rule,  seats  not  exceeding  3%  are reserved for  the nominees  of the Government of India and 3 seats are  reserved for  the  candidates  nominated  by  the Government of Jammu and Kashmir Rule 1 (iii) provides that a Pre-Medical  Examination   shall  be  held  every  year  for selection  of   candidates  for  admission  to  the  Medical Colleges and  all admissions  shall be  made only  from  the merit list  prepared on  the basis  of the  result  of  this examination except  in case  of seats placed at the disposal of the  Government  of  India  and  other  States.  Rule  15 mentions the  subjects of  the Pre-Medical Examination and C rule 20  lays down that selection of candidates from amongst

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those who  have qualified  in the  examination shall be made strictly on  merit as  disclosed by  total number  of  marks obtained by  candidates in the Pre-Medical Examination. Rule 20  further  provides  that  minimum  qualifying  marks  for admission to  Medical Colleges shall be 50% in the aggregate and 33% in each subject separately: but for Scheduled Castes and Scheduled  Tribes  candidates,  the  minimum  qualifying marks shall be 40% in the aggregate and 30% in each subject. Rule 20 in its note (ii) empowers the Government to grant in case of  candidates belonging to the categories of Scheduled Castes  and  Scheduled  Tribes  special  relaxation  in  the minimum qualifying  marks to the extent considered necessary in the  event of  the required number of candidates in these two categories  not being available. For the total number of 720 seats  in the  Medical Colleges of the State, there were 9400 candidates  in all.  Of the 9400 candidates, there were 623 candidates belonging to the category of Scheduled Castes for whom  108 seats  were reserved;  and for  the 108  seats reserved for  candidates of  the Scheduled  Tribes Category, there were 145 candidates belonging to that category. On the result of  the Pre-Medical  Examination only 18 seats in the category of the Scheduled Castes and 2 seats in the category of Scheduled  Tribes could  be filled  up, because the other candidates of  these categories  did not  secure  qualifying marks prescribed by rule 20. As 90 seats had remained vacant in  the   category  reserved   for  Scheduled  Castes  after selection of  the  18  candidates  and  106  seats  remained unfilled in  the category  of seats  reserved for  Scheduled Tribes after  selection of  the two candidates on the result of the examination, the Board in exercise of the power under Note (i) to Rule 20 made a relaxation of 5% in terms thereof and thereafter 7 more candidates in the category 766 gory of  Scheduled Castes  and one  more in  the category of Scheduled  Tribes  got  admitted.  Thus  oat  of  108  seats reserved for  each category  of  the  Scheduled  Castes  and Scheduled Tribes,  only 25  seats could  be  filled  in  the category of  Scheduled Castes  and three  in the category of Scheduled Tribes. As only a very few candidates of these two categories could  get admitted  into Medical  Colleges and a large number  of seats reserved for them could not be filled up by the candidates of these two categories on the basis of the result of the examination even after relaxation had been made in  terms of  the provisions  contained in  Note (i) to Rule 20,  the State  Government passed  an order  on the 9th September, 1980  completely relaxing the conditions relating to the  minimum qualifying  marks for  these two categories. the order  dated 9th  September, 1980, the validity of which has been  questioned in the Writ Petitions filed by Nivedita Jain in the High Court, is to the following effect:-           "The Government  has taken  a  decision  that  the      candidates  belonging   to  the  Scheduled  Castes  and      Scheduled Tribes be admitted to the Medical Colleges in      the seats  reserved for  them in  accordance  with  the      merit to  be deter  mined on  the basis  of  the  marks      obtained by  them in  the Pre-Medical  Examination  and      that for  this purpose,  the condition  relating to the      obtaining of minimum qualifying marks be removed".      Kumari Nivedita Jain, as we have earlier noticed, was a candidate for  admission  into  a  Medical  College  in  the general seats,  that is,  the  seats  which  have  not  been otherwise  reserved.   Though  she  had  obtained  necessary qualifying marks,  she could  not secure  her admission,  as other candidates  for the  general seats  had obtained marks higher than she had obtained in the Pre-Medical Examination,

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for filling  up  the  vacancies  available  in  the  general category. It  may be  noted that rule 9 contains a provision to the  effect that  in case seats of reserved categories of Scheduled Castes  and Scheduled  Tribes remain vacant, these seats will  be filled  up by the candidates available on the combined merit list. If the seats in the reserved categories had been  thrown open  to candidates in the general category on account  of the  failure on  the part  of the  candidates belonging  to   the  categories   of  Scheduled  Castes  and Scheduled  Tribes   to  obtain   minimum  qualifying  marks, Nivedita Jain  would have  been in  a position to secure her admission to the medical college. As the State Government by its  order  dated  9th  September,  1980  decided  to  relax completely the conditions relating 767 to minimum  qualifying marks  for these  two  categories  of Scheduled Castes  and Scheduled Tribes candidates instead of filling up  these  seats  by  candidates  available  on  the combined merit  list, she was deprived of the opportunity of getting her  ad  mission  into  the  medical  college.  She, therefore, filed  this writ  petition in  the High  Court of Madhya Pradesh challenging the validity of the said order of the State  Government dated  9th September, 1980. It will be noticed that  this order  of the State Government is also an executive order.      The principal  grounds on  which the  validity  of  the order has  been challenged  by Nivedita Jain, the respondent herein and  the petitioner  in the  writ petition before the High  Court,  are-(1)  that  the  order  of  the  Government contravenes Regulation  II of  the Medical  Council of India and would hit S. 19 of the Indian Medical Council Act, 1956, exposing  the   medical  colleges   to  the  risk  of  being derecognised; and  (2) that the order of the Government will have  the   effect  of  allowing  less  qualified  and  less deserving  candidates  to  fill  up  the  seats  and  would, therefore, destroy  equality and  violate Arts. 14 and 15 of the Constitution.      It appears  from the  judgment of  the High  Court that another ground,  namely, that the order dated 9th September, 1980 was  violative of  ordinance 94  of the  University  of Jabalpur, was  also urged before the High Court, though this ground does not appear to have been taken in the petition.      The High  Court accepted  the contention  of  the  writ petitioner that  the order  in question violated Regulations of the  Council holding  that "the  executive power  of  the State under  Art. 162 cannot be so exercised as to over-ride the statutory provisions, more so when the said provision is in a  field occupied  by the Union List. The executive power can be  used to supplement a law but not to supplant it" The High Court  further  held  that  "the  total  relaxation  of minimum  marks   for  the   candidates  belonging  to  these categories cannot  be supported  under  Art.  ]  S(4)  being violative of  the Regulations  which have the force of law." Dealing with the contentions of violation of ordinance 54 of the University of Jabalpur, the High Court observed:           "As the  ordinance has  to be  read alongwith  the      regulations and  can be  given effect to only in so far      it  is  consistent  with  the  regulations,  it  cannot      constitute anew 768      ground for  invalidating the  impugned order, We would,      however, like  to emphasis  again that  when  a  common      entrance test  for selection  of candidates  is held by      the Government for all the medical colleges, it is very      necessary  that   the   Universities   must   prescribe

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    identical conditions  for admission consistent with the      Regulations made  by the  Medical Council  to avoid any      confusion in the matter of admission."      In the result, the High Court allowed the writ petition and struck  down the order of the State Government dated 9th September, 1980.      In this  appeal by  special leave,  the State of Madhya Pradesh and  the Controller  of Examinations  of pre-medical test have  challenged the correctness of the decision of the High Court.      Before we  proceed to  consider the  various  arguments advanced on  behalf of the parties, we may here note that in the  writ   petition  filed   by  Nivedita  Jain,  she  also challenged the validity of the reservation made by the State Government of  3% of  the seats  for the  children and grand children of  freedom-fighters by another order passed by the State Government  on the  19th September, 1980. The validity of this  order was,  however, upheld  by the High Court. The matter rests  there and  in this appeal we are not concerned with this aspect of the matter.      Mr. Phadke,  learned counsel appearing on behalf of the appellants, has  submitted that  the High  Court struck down the order in question mainly on the ground that the order is violative of the Regulation II of the Council. He has argued that the validity of the reservations for the members of the Scheduled  Castes   and  Scheduled   Tribes  has   not  been questioned. It  is his  argument that the seats are reserved for those  communities in the interest of weaker sections of the  society   and  the   State  under  Art.  15(4)  of  the Constitution is  competent to do everything possible for the upliftment of  the Scheduled Castes and Scheduled Tribes and other backward communities and the State is entitled to make necessary reservations  of seats  in  the  matter  of  their admission to  medical colleges.  He submits  that it must be open to  the State  to lay down such conditions as will make such reservations  effective and  will enable the candidates belonging  to   the  categories   of  Scheduled  Castes  and Scheduled Tribes to get the benefits of such reservations, 769 in discharge  of the  duties and obligation of the State, to the  members   of  those   communities  and  other  backward communities. It  is his  submission that in the instant case when the  State found  that the  qualifying conditions  laid down for  the admission of the candidates belonging to those communities  had  in  reality  resulted  in  denial  of  the opportunities sought  to be  given to  them, the  Government considered it  expedient to  relax the  conditions to enable the candidates  of those communities to get the admission to medical colleges  for prosecuting  their studies  to  become qualified medical  practitioners. Mr.  Phadke has  contended that the provisions contained in Regulation II for violation of which  the order  in question  has been  struck down, are directory in nature and they are not mandatory in character, and, as such, they do not have any binding effect; and it is open to  the State  to make Rules which may not be in accord with the  provisions contained  in the  said regulation  for admission to  the medical  colleges. Mr. Phadke has taken us to the  various provisions of the Indian Medical Council Act (hereinafter referred  to  as  the  Act)  and  also  to  the Regulations framed  by the  Council. Mr. Phadke submits that the scheme  of the  Act clearly suggests that the Council is essentially concerned with the standard of medical education in the  country  and  that  stage  only  arrives  after  the students have  been  admitted  into  Medical  Colleges.  Mr. Phadke has  drawn our  attention particularly to Sections 19

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and 19A  of the Act and he has commented that under S. 33 of the Act,  the Council  with the  previous  sanction  of  the Central Government  can frame  Regulations for  carrying out the purpose  of the Act. He has submitted that the selection of candidates  for admission  to Medical  Colleges cannot be said to  constitute any  purpose for  which the Act has been enacted, as  selection of  students has  no bearing  on  the standard  of  medical  education  and  the  Council  is  not competent to  frame Regulations  for  admission  to  Medical Colleges. Mr.  Phadke in this connection has referred to the decision of this Court in the case of Arti Sapru v. State of Jammu  and  Kashmir  and  Ors.(1)  and  has  relied  on  the following observations of the Court at p. 44:           "Objection to the objective test and the viva voce      examination is  based on  the  ground  that  they  fall      outside .  the scheme envisaged by the Regulations made      by the  Indian Medical  Council for  admission  to  the      M.B.B.S, Course. The respondents, however, question the      validity H 770      of  the  Regulations.  We  are  then  referred  by  the      petitioner to  clauses (i)  and (I)  of S.  33,  Indian      Medical Council Act, 1956, in support of the contention      that the  power of  the  Council  to  make  regulations      extends   to   making   regulations   prescribing   the      examinations and  tests for  admission. It  seems to us      prima facie  that those provisions do not authorise the      Council to  do so.  But we  refrain from expressing any      final opinion  in the  matter as  the Council  is not a      party before us. Mr. Phadke  has argued that item 66 in List I of the Seventh Schedule to  the Constitution  does not  stand in the way of the State Government to frame rules for admission to Medical Colleges in view of item 25 included in List III of the said Schedule. It  is the  argument of Mr. Phadke that item 66 in List I  which provides  for "co-ordination and determination of  standards   in  institutions  for  higher  education  or research and  scientific and technical institutions", is not intended  to   deal  with   the  question  of  selection  of candidates and  item 25  in  List  III  which  provides  for "education including  technical education, medical education in universities  subject to provisions of entries 63, 64, 65 and 66  of List  I; vocational  and  technical  training  of labour", is  broad enough to include all matters relating to education subject  to the  provisions of  entries 63, 64, 65 and 66  of List  I and  empowers the  State to  frame  rules relating to  selection  of  candidates  for  admission.  Mr. Phadke has  submitted that  the Council must have been aware of the  limitations of  its power in the matter of selection of  candidates   for  admission;   and,  the   Council  has, therefore, made only a recommendation in this regard and has not  made   any  mandatory   provision  about  it.  In  this connection Mr.  Phadke has  referred to the language used in Regulation II  and has contrasted the same with the language used in  Regulation I of the Regulations. Mr. Phadke submits that  as   Regulation  II   is  only  in  the  nature  of  a recommendation and  directory, any rules framed by the State Government   regarding    selection   of    candidates    in contravention of  the said  recommendation cannot be held to be invalid  and illegal  and cannot  be struck  down on that ground. Mr. Phadke has also argued that there is no question of violation  of Art.  15(1) and (2) of the Constitution. It is his argument that in view of the provisions in Art. 15(4) of Constitution,  the State  Government is competent to make special provisions  for  the  advancement  of  socially  and

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educationally backward  classes or  for the Scheduled Castes and Scheduled Tribes. Mr. Phadke in this connection has 771 referred to  the case  of Jagdish Saran and Ors. v. Union of India and  Ors.(1).   Mr. Phadke has commented that the view expressed by  the High  Court that  the order which violates the statutory  regulation of  the Council must be held to be violative of  Art. 15(1)  and (2)  and not protected by Art. 15(4)  must   necessarily  be   held  to  be  erroneous,  as Regulation II is not mandatory and has no binding effect.      Regarding  violation   of  ordinance   54  of  Jabalpur University, Mr.  Phadke submits that no such ground has been taken in the - l petition and further the affidavit filed on behalf of  the university  shows that  the ordinance has not become effective.      Mr. Kacker,  Learned Counsel appearing on behalf of the Respondent  Nivedita   Jain,  the  petitioner  in  the  writ petition, his  argued that  Regulation  II  of  the  Medical Council is  mandatory with statutory force. He has submitted that the  Indian Medical Council bas been established by the Parliament, inter  alia,  for  the  maintenance  of  Medical Register for  India and  the matters  relating therewith. He further submits that under s. 33 of the Act the Council with the previous  sanction of  the Central  Government has  been authorised to  make regulations  generally to  carry out the purposes of the Act, and without prejudice to the generality of this  power, the  regulation  made  by  the  council  may provide for  matters  specifically  mentioned  in  the  said section  including  any  matter  for  which  under  the  Act provision may  be made  by regulations,  as provided in sub- section (u)  of Section 33. It is the argument of Mr. Kacker that Regulation II of the Council which relates to selection of candidates has been made for carrying out the purposes of the Act  and selection  of the  right type  of students  for maintaining  proper  standard  of  medical  education  comes clearly within  the purview and jurisdiction of the Council. Mr. Kacker  has placed  us various  sections of  the Act  in support of  his  submission  that  regulating  selection  of students for  admission to  medical  colleges  justly  comes within the jurisdiction and function of the Council. In this connection, Mr.  Kacker has also referred to the decision of this Court  in the  case of  State of  Kerala v. Kumari T.P. Roshana and  Anr. (1)  and he  has relied  on the  following observations at p. 984:-           "The  Indian   Medical  Council   Act,  1956   has      constituted the  Medical Council  of India as an expert      body to control 772      the minimum  standards  of  medical  education  and  to      regulate their observance. Obviously, this high-powered      Council has power to prescribe the minimum standards of      medical education.  It has  implicit power to supervise      the  qualifications   or  eligibility   standards   for      admission into  medical institutions.  Thus there is an      overall invigilation  by the Medical Council to prevent      sub-standard  entrance   qualifications   for   medical      courses".      Mr. Kacker submits that in the instant case there is no dispute that the order of the Government dated 9th September 1980 in  question clearly  contravenes Regulation  II of the Council. Mr. Kacker has also drawn our attention to entry 66 of the  Union List which has been set out earlier Mr. Kacker has contended  that the  State Government  by  an  executive order cannot  over-ride Regulation  II of  the Council which has  statutory   force  of   a  Parliamentary   Legislation,

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particularly, when  the  said  provisions  are  in  a  field occupied by  the Union  List. Mr.  Kacker has next contended that complete  relaxation of  the conditions  in relation to qualifying marks for admission into Medical Colleges in case of  Scheduled   Castes  and   Scheduled  Tribes   candidates purported to  have been  made by the State Government by the impugned order  dated 9th  September, 1980 must also be held to  be   unconstitutional  as  the  said  order  is  clearly violative of  Art. 15  (1) and  (2) of  the Constitution and cannot be said to be protected by Art. 15 (4). In support of this submission Mr. Kacker has relied on the decision of the Full Bench  of the  Patna High Court in the case of Amalendu Kumar v.  State of  Bihar. (1)  In this  case the Patna High Court held  that where  the  State  Government  reduces  the percentage of  marks, marks  prescribed  for  the  Scheduled Castes  and   Scheduled  Tribes   for  passing   competitive examination held  for the  purpose of  admission to  medical college, by  executive fiat,  first  from  45%  to  40%  and subsequenty to 35% on the ground that seats reserved for the Scheduled Castes  and Tribes  would  remain  unfilled,  both reductions were  invalid as  violative  of  guarantee  given under Art. 15 (1).      Mr. Kacker  has finally  submitted that  the  order  in question is  also liable  to be  struck down as the order is violative of ordinance 54 of University of Jabalpur. 773      In concluding  Mr. Kacker  has appealed  to this  Court that  irrespective   of  the  result  of  this  appeal,  the respondent Nivedita  Jain who has already been admitted into a College on the basis of interim order passed by this Court in this  appeal for  prosecuting her  studies in the Medical College, should  be allowed  to continue her studies and the fate of  this appeal  should not  interfere with her studies and with her career.      As we  have earlier  noticed, the order in question has been struck down by the High Court essentially on the ground that  the   order  which  is  an  executive  order  violates Regulation II  of the  Council which  has  the  force  of  a Statute. It is not in dispute and it cannot be disputed that the order  m question  is in  conflict with  the  provisions contained in Regulation II of the Council. The main question that  falls  for  determination  is  whether  the  order  in question which  contravenes Regulation  II is  liable to  be struck down  on the  ground that  the State Government by an executive order  is purporting  to override Regulation II of the Council.  For a  proper determination of the question it is necessary  to understand  the true  nature  of  the  said Regulation II and to consider whether the said Regulation is of mandatory  character with statutory force. The contention of the  appellants, as  we have  earlier  noticed,  is  that Regulation II  is only in the nature of a recommendation and is directory  and has no statutory force; and the contention of the Respondent Nivedita Jain, on the other hand, has been that the  said Regulation  is mandatory  in  character  with statutory force.  For a  proper appreciation  of these rival contentions, it  becomes necessary to analyze and understand the scheme of the Act and the Regulations framed thereunder. The Act  was enacted  "to provide  for reconstitution of the Medical Council  of India  and the  maintenance  of  Medical Register for  India and for matters connected therewith". S. 2 deals  with definitions  and defines  "Regulation" in sub- sec. (i)  to mean "a Regulation under s. 33". Ss. 3 to 10 of the Act  are not  of  any  material  consequence  and  these sections deal  with  composition  of  the  Council  and  its functions. S. 11, 12, 13 and 14 which deal with the question

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of recognition  of medical qualifications by the Council are also not  very relevant for our present purpose. S. 15 which deals with  question of  a person  possessing qualifications for enrollment  on any  State Medical  Register, is also not very material.  S. 16  provides  that  every  University  or Medical Institution  in  India  which  grants  a  recognised medical qualification  shall furnish such information as the Council may from time to 774 time require,  as to the courses of study and examination to be undergone  in order  to obtain  such qualification, as to the ages  at which  courses of  study  and  examination  are required to be undergone and such qualification is conferred and generally  as  to  the  requisites  for  obtaining  such qualifications  granted   by  the   University  or   Medical Institution. S.  17 confers a right of inspection of Medical Institution, College,  Hospital or  other institutions where medical  education   is  given   and  also   to  attend  any examination held  by any  University or  Medical Institution for the  purpose of  recommending to  the Central Government recognition  of   medical  qualifications  granted  by  that University or  medical institution.  S. 18 confers a further right of  appointing visitors  for inspection of any medical institution, College,  Hospital or  other institutions where medical education is given and for attending any examination held by  any  University  or  Medical  Institution  for  the purpose of granting recognised medical qualifications. S. 19 empowers the  committee to  make  a  representation  to  the Central Government  for withdrawal of the recognition, if it appears to  the Council  on a report by the Committee or the Visitor that  the Courses  of study  and examination  to  be undergone in, or the proficiency required from candidates at any  examination   held  by   any  University   or   medical institution do  not conform  to the  standards prescribed by the Council  or that  the staff,  equipment,  accommodation, training and  other facilities for instructions and training provided in such University or Medical Institution or in any College or  other institution  affiliated to that University do not  conform to  the standards prescribed by the Council. The said  Section 19  further provides  that in the event of any representation  being made  to the Central Government by the Council, the Central Government will forward the same to the Government  of the  State in  which  the  University  or medical institution  is situated  and the  State  Government shall forward  it along  with such remarks as it may make to the University or Medical Institution, with an intimation of the  period   within  which,   the  University   or  medical institution  may   submit  its   explanation  to  the  State Government; and on receipt of the explanation, if any within the stipulated  period the State Government on the expiry of the period  shall make  its recommendations  to the  Central Government and  the Central  Government  after  making  such further enquiries,  if any,  as it may think fit, proceed to act in  the manner laid down in sub-sec. (4) of S. 19 of the Act. S.  19A of  the Act which is important for our purposes in this appeal reads as follows : 775      "(1) The Council  may prescribe the minimum standards A           of  medical   education  required   for   granting           recognised  medical   qualifications  (other  than           post-graduate    medical     qualifications)    by           Universities or medical institutions in India.      (2)  Copies  of   the  draft  regulations  and  of  all           subsequent amendments  thereof shall  be furnished           by the  Council to  all State  Governments and the

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         Council shall,  before submitting  the regulations           or any  amendment thereof,  as the case may be, to           the Central  Government for  sanction,  take  into           consideration the comments of any State Government           received within  three months  from the furnishing           of the copies as aforesaid.      (3)  The Committee  shall from  time to  time report to           the Council on the efficacy of the regulations and           may  recommend  to  the  Council  such  amendments           thereof as n it may think fit". S. 20  deals with  post-graduate medical  studies and S. 20A deals with professional conduct. Ss. 21 to 28 make provision for the  maintenance of  Indian Medical  Register, supply of copies of  the State Medical Registers to the Council by the State Medical  Council, registration  in the  Indian Medical Council Register,  removal  of  any  name  from  the  Indian Medical Register,  provisional registration, registration of additional qualifications,  privileges of  persons  who  are enrolled on  the Indian Medical Register and the requirement of  notification  of  change  of  address  by  every  person registered in  Indian  Medical  Register.  S.  29  casts  an obligation on  the Council  to furnish  reports,  copies  of minutes, abstracts  of its  accounts and  other  information that the  Central Government  will require,  to the  Central Government.  S.   30  empowers  the  Central  Government  to institute a  commission of  enquiry whenever  it is  made to appear to  the Central  Government that  the Council  is not complying with  any provisions of the Act. S. 31 is intended to offer  protection in  respect of  acts done in good faith under the  Act, These  sections do  not  have  any  material bearing on  the question involved in the present proceeding. S. 32  authorizes the  Central Government  to make  rules to carry out  the purposes  of this Act, and sub-section (2) of S. 32  makes it  obligatory that  such rules  shall be  laid before the Parliament. S. 33 of the Act provides: 776           "The Council  may, with  the previous  sanction of      the Central  Government, make  regulations generally to      carry  out  the  purposes  of  this  Act,  and  without      prejudice  to   the  generality  of  this  power,  such      regulations may provide for:      (a)  ...            ...              ...          ...           ...            ...              ...          ...           ...            ...              ...          ...      (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;      (k)  the standards  of staff, equipment, accommodation,           training  and   other   facilities   for   medical           education;      (I)  the   conduct    of   professional   examinations,           qualifications of examiners, and the conditions of           admission to such examinations;      (m)  the standard of professional conduct and etiquette           and code  of ethics  to  be  observed  by  medical           practitioners; and      (n)  any matter  for which under this Act provision may           be made by regulations. S. 34  of the  Act which  happens to  be  the  last  section repeals the  earlier Indian  Medical Council  Act  of  1933, providing for the usual saving clause.      An analysis of the various sections of the Act indicate

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that the  main purpose  of the  Act is  to establish Medical Council  of   India,  to   provide  for   its  constitution, composition and  its functions; and the main function of the Council is  to maintain the medical register of India and to maintain a  proper standard of medical education and medical ethics and  professional conduct  for medical practitioners. The scheme of the Act appears to be that the Medical Council of India is to be set up in the manner provided 777 in the  Act and  the Medical  Council will maintain a proper medical  register,   will  prescribe  minimum  standards  of medical education  required for  granting recognised medical qualifications,  will  also  prescribe  standards  of  post- graduate medical  education and  will further  regulate  the standards of  professional conduct and etiquette and code of ethics for  medical practitioners. The Act further envisages that if  it appears to the Council that the courses of study and examination  to be  undergone  in,  or  the  proficiency required from  candidates at  any examination  held  by  any University or  Medical Institution  do not  conform  to  the standard  prescribed   the  Council   or  that   the  staff, equipment, accommodation,  training and other facilities for instructions and  training provided  in such  University  or medical institution  or in  any college or other institution affiliates to the University do not conform to the standards prescribed  by   the  Council,   the  Council  will  make  a representation to  that effect to the Central Government and on consideration  of the  reorientation made by the Council, the Central  Government may  take action  in  terms  of  the provisions contained  in S.  19 of  the Act.  The  Act  also empowers the  Council to take various measures to enable the Council to  judge whether  proper medical  standard is being maintained in any particular institution or not.      Now  coming   to  the  consideration  of  the  question involved in  this appeal,  it appears from the provisions of the Act  that the  . authority of the Council extends to the sphere of  maintaining proper  medical standards  in medical colleges or  institutions necessary for obtaining recognised medical qualifications.  By virtue  of this authority it may be open  to the  Council to lay down the minimum educational qualifications required  of a student who may seek admission into a medical college. In other words, the eligibility of a candidate who  may seek  to  get  admitted  into  a  medical college for  obtaining recognised medical qualifications may be prescribed  by the  Council. All  the candidates  who are eligible for  admission into Medical Colleges or Institution for getting  themselves qualified  as medical  practitioners are entitled  to seek  admission into  a Medical  College or Institution. As  to how  the selection has to be made out of the eligible  candidates  for  admission  into  the  Medical College is  a matter  which has  necessarily  to  depend  on circumstances  and   conditions  prevailing   in  particular States. Though  the question  of eligibility  for  admission into the  medical curriculum  may come  within the power and jurisdiction of  the Council,  the question  of selection of candidates out of the candidates eligible to undergo 778 the medical  course does  not  appear  to  come  within  the purview of  the Council.  The observations  of  the  Supreme Court in  the case of State of Kerala v. Kumari T.P. Roshana and Ors.  (supra) quoted  earlier relate  to the question of qualification or  eligibility of students for admission into a medical college and the said observations are not intended to apply  to a  case of  selection of students for admission into a  Medical College  out of  the eligible candidates. As

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the  number  of  candidates  seeking  admission  to  Medical Colleges largely exceed the number of vacancies available to such candidates for admission, some kind of procedure has to be evolved  for such  selection. The process of selection of candidates for  admission to  a medical  college out  of the candidates eligible for admission for filling up the limited vacancies has no real bearing on the question of eligibility or qualification for admission or on the standard of medical education. The  standard of  medical education  really comes into the  picture in  the course  of studies  in the medical colleges or  institutions after  the selection and admission of  candidates   into  medical  colleges  and  institutions. Students who satisfy the requirements of Regulation I become qualified or  eligible to  seek admission  into the  Medical Course. Regulation  I prescribes requisites which have to be satisfied to  enable every  student to  become  eligible  or qualified to  seek admission  and the  process of  selection comes thereafter.      Undoubtedly, under  S. 33 of the Act, the Council is em powered 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  S. 33 of the Act. We have earlier indicated what  are the  purposes of  this Act. Sub-ss. (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-s. (j ), (k),  and (I)  relate to  post admission  stages and  the period of  study after  admission in medical colleges. Sub-s (m) of S. 33 relates to a post-degree stage Sub-s. (n) of S. 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 and  Kashmir and  Ors. (supra) which we have earlier quoted  and which were relied on by Mr. Phadke, were made on such consideration, though the question was not very properly finally decided in the absence of the Council. 779      We shall  now consider  the two relevant Regulations of the A  Council and  they are  Regulations I and II. The said Regulations read:-      I. Admission to the Medical Course           No candidate  shall be  allowed to  be admitted to      the Medical Curriculum proper until:           (i)  he has  completed the  age of 17 years at the                time of admission or will complete the age on                or before  31st December  of the  year of his                admission  to   the  Ist   M.B.B.S.  Courses.                Provided that the candidates who are admitted                directly  to   the  5-1/2   years  integrated                M.B.B.S. course should have completed the age                of 16  years at the time of admission or will                complete this  age on  31st December  of  the                year of admission to the pre-medical course.           (ii) he has passed:                (a)  the Intermediate  examination in Science                     of an  Indian University/Board  or other                     recognised examining  body with Physics,                     Chemistry  and   Biology,  which   shall                     include  a   practical  test   in  these                     subjects;                              OR

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              (b)  the         pre-professional/pre-medical                     examination with  physics, chemistry and                     biology, after passing either the higher                     secondary  school  examination,  or  the                     pre-university    or    an    equivalent                     examination. The  pre-professional  pre-                     medical  examination   shall  include  a                     practical test in these subjects:                              OR                (c)  the first year of the three years degree                     course of  a recognised university, with                     physics,    chemistry    and    biology,                     including a practical test in 780                     these subjects  provided the examination                     is "University Examination.’.                              OR                (d)  "B.  Sc.   examination  of   an   Indian                     University. Provided  that he has passed                     the B. Sc examination with not less than                     two of  the following  subjects-Physics,                     Chemistry, Biology (Botany, Zoology; and                     further that  he has  passed the earlier                     qualifying    examination    with    the                     following subjects,  Physics, Chemistry,                     Biology and English.           Note :    A student  who has  passed the  B.  Sc..                     examination with  one  or  more  of  the                     subjects  mentioned   earlier  would  be                     admitted to the Medical Course if he had                     passed the  remaining  subjects  of  the                     Medical group  (Physics,  Chemistry  and                     Biology)   in    the    pre-professional                     intermediate examination.                (e)  The Higher  Secondary Examination or the                     Indian  School  Certificate  Examination                     which  is   equivalent  to  10+2  Higher                     Secondary Examination  after a period of                     12 years  study, the  last two  years of                     study comprising  of Physics. Chemistry,                     Biology and  mathematics  or  any  other                     elective subject with English at a level                     not  less   than  the  Core  Course  for                     English as  prescribed by  the  National                     Council  for   Education  Research   and                     Training,  after   the  introduction  of                     10+2+3 years  educational  structure  as                     recommended by the National Committee on                     Education.           Note :    Where  the  course  content  is  not  as                     prescribed for  10+2 education structure                     of   the    National   Committee,    the                     candidates will have to undergo a period                     of one  year  pre-professional  training                     before admission to the medical college 781           (f)  any other  examination which,  in  scope  and                standard is  found to  be equivalent  to  the                intermediate science examination of an Indian                University-Board, taking  physics,  chemistry                and biology,  including a  practical test  in                each - of these subjects and English.           Note: (a) The pre-medical  course may be conducted                     either at  Medical College  or a Science                     College.

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              (b)  After the 10+2 course is introduced, the                     integrated course should be abolished.      II. Selection of Students.           The selection  of students  to a  medical  college      should be  based solely  on merit  of the candidate and      for determination  of merit,  the following criteria be      adopted uniformly throughout the country:-      (a)  In States, having only one Medical College and one           University/Board/Examining  body   conducting  the           qualifying examination, the marks obtained at such           qualifying    examination     be    taken     into           consideration.      (b)  In States  having more  than one University/Board/           Examining   Body    conducting   the    qualifying           examination (or  where there  are  more  than  one           medical college  under the  administrative control           of  one   authority),   a   competitive   entrance           examination should  be held  so as  to  achieve  a           uniform evaluation  due to  the variation  of  the           standard of  qualifying examinations  conducted by           different agencies.      (c)  Where there  are more  than  one  university/board           con- ducting  the qualifying  examination  then  a           joint selection  board be  constituted for all the           colleges. 782      (d)  A competitive  entrance examination  is absolutely           necessary in the case of institutions of All India           character.      (e)  To   be    eligible   for   competitive   entrance           examination, candidate must have passed any of the           qualifying examinations  as enumerated  under  the           head-note "Admission to Medical Course."           Provided that  a candidate  who has  appeared in a      qualifying examination the result of which has not been      a declared, may be provisionally allowed to take up the      competitive examination  and in  case of  his selection      for admission  to a  medical college,  he shall  not be      admitted thereto  unless in the meanwhile he has passed      the qualifying examination.           Provided also  that a  candidate for  admission to      the medical course must have obtained not less than 50%      of the  total marks  in English  and  Science  subjects      taken together (i) at the qualifying examination (or at      a higher  examination) in  the case  of medical college      where the  admissions are  made on  the basis  of marks      obtained at these examinations or (ii) 50% of the total      marks in English and Science subjects taken together at      the  competitive   entrance  examination   where   such      examinations are held for selection.           Provided further  that in  respect  of  candidates      belonging  to  Scheduled  Castes/Scheduled  Tribes  the      minimum marks  required for  admission shall  be 40% in      lieu of 50% for general candidates.           Where the  seats reserved for Scheduled Castes and      Scheduled Tribes students in any State cannot be filled      for  (1   want  of   requisite  number   of  candidates      fulfilling the  mini mum  requirements prescribed  from      that State  then such  vacant seats may be filled up on      all India  basis with  Scheduled Castes  and  Scheduled      Tribes candidates  getting not  less than  the  minimum      prescribed  pass  percentage  or  reverted  to  general      category. 783           The    authorities     (State    Government    and

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    Universities) A should arrange special coaching classes      for Scheduled Castes/Seheduled Tribes candidates before      the qualifying/  competitive examination to enable them      to come up to the appropriate standard for admission to      the Medical Courses. Regulation I  prescribes the  eligibility of a candidate for admission  to   medical  courses.   For  maintaining  proper standards in  medical colleges  and  institutions  it  comes within the  competence  of  the  Council  to  prescribe  the necessary qualification  of the  candidates  who  make  seek admission into  the Medical  Colleges. As this Regulation is within the competence of the Council, the Council has framed this Regulation  in a manner which leaves no doubt that this Regulation is  mandatory. The  language of  this Regulation, which starts  with the  words "no candidate shall be allowed to be  admitted to  the medical  curriculum until.. ", makes this position  absolutely  clear.  On  the  other  hand  the language in  Regulation II  which relates  to  selection  of candidates clearly  goes to indicate that the Council itself appears to  have been  aware of the limitation on its powers to frame  any such  regulation regarding  the  procedure  or process of  selection of  candidates for  admission  to  the Medical Course  out of  the candidates qualified or eligible to  seek  such  admission.  As,  however,  the  question  of selection of  candidates for admission into medical colleges out of  the eligible  candidates is a h problem more or less common to  all the States, the Council might have considered it desirable  to recommend  certain guidelines  which may be followed in  the matter  of selection of students out of the eligible candidates  for admission into medical colleges. It is well  known that  all over India candidates who aspire to get admission  into medical  colleges and  who are otherwise eligible or  qualified for  admission to  medical courses on the basis of the provisions contained in Regulation I of the Council, cannot  all be admitted into the medical college or institution for  dearth of seats. By way of solution of this problem, the  Council appears  to have  thought  it  fit  to suggest  the   procedure  which  will  have  the  effect  of selecting such  candidates on  the basis  of merit only. The procedure suggested is intended to do away with nepotism and favouritism and  any unfair  practice in  the matter of such admission, as  the procedure  recommends  merit  to  be  the criterion. The  Council itself  appears to  have apprehended that what  is contained  in Regulation  II is  merely in the nature of  a recommendation  and this  is evident  from  the language used in Regulation II particularly when the same is con- 784 trasted with  the language used by the Council in Regulation I.  Regulation  II  begins  with  the  words  "seiection  of students in  a medical  college should  be based  solely  on merit". We  are of  the opinion  that the  use of  the words "should be"  in Regulation  II is deliberate and is intended to indicate  the intention of the Council that it is only in the nature of a recommendation. Regulation I which lays down the conditions  or qualifications for admission into Medical Course comes  within the  competence of the Council under S. 33 of  the Act  and is  mandatory and  the Council  has used language  to   manifest  the  mandatory  character  clearly, whereas Regulation  II  which  deals  with  the  process  or procedure for selection from amongst eligible candidates for admission is  merely in  the nature  of a recommendation and directly in  nature, as laying down the process or procedure for  selection  for  admission  of  candidates  out  of  the candidates eligible  or qualified  for such  admission under

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Regulation I.  Regulation II  recommending  the  process  of selection is  outside the  authority of the Council under S. 33 of the Act and the Council has advisedly and deliberately used such  language in  Regulation II  as makes the position clear and  places the  matter beyond  any doubt.  ’There  is another aspect of the matter which also goes to suggest that Regulation II  is merely  directory and  does not  have  any mandatory  force.  Apart  from  reservations  of  seats  for Scheduled  Castes  Scheduled  Tribes  categories  and  other reservations, reservation  of seats  is  commonly  made  for being filled  up by  nomination. In  the instant case before us, it  appears that  the seats not exceeding three per cent are reserved  for the  nominees of  the Government  of India apart from  the other  reservations. These  nominees of  the Central Government  do not  have to  sit for any pre-medical examination to   qualify  themselves for  selection  to  the medical colleges.  They  must  of  course  be  eligible  for admission in  the sense  that h  ey must  have the necessary qualification for admission in accordance with Regulation I. The candidates  eligible under  Regulation I are selected by virtue of  nomination and  there is  no question of any pre- medical test  for such  candidates nominated  by the Central Government. If  Regulation II  could  be  considered  to  be mandatory, there  could be  no such nomination of candidates by the Central Government.      Entry 66  in List I (Union List) of the 7th Schedule to the Constitution relates to "co-ordination and determination of standard in institutions for higher education or research and scientific  and technical  institutions". This  entry by itself  does  not  have  any  bearing  on  the  question  of selection of candidates to the Medical 785 Colleges from amongst candidates who are eligible for such A admission.  On   the  other   hand,  entry  25  in  List  II (Concurrent List) of the same Schedule speaks of-"education, including  technical   education,   medical   education   in Universities, subject to entries 63, 64, 65 and 66 of List l .. vocational  and technical training of labour". This entry 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.  We  are,  therefore,  of  the  opinion  that Regulation 11  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. C      In the  case of  Slate Andhra  Pradesh and Ors. v. Lavu Narendranath and  Ors., etc.(l) this Court held at page 709- "the executive  have. a  power to  make any regulation which should have  the effect  of a  law so  long as  it does  not contravene any legislation already covering the field .. ".      Under Art.  162 of the Constitution the executive power of a  State, therefore, extends to the matter with regard to which the  legislature of a State has power to make laws. 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.      We shall  now proceed  to consider whether the order in question is  violative  of  Art.  15  (l)  and  (2)  of  the Constitution. The  High Court  has held that as the order is violative of the Regulation of the Council, the order cannot be supported  under Art. 15 (4) of the Constitution. We have earlier held  that the  contravention of Regulation II which is merely  directory and  in the  nature of a recommendation

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does not  invalidate the  order. As the order in question is not liable  to be struck down on the ground of contravention of Regulation  II of  the Council,  the order can clearly be supported under Art. l5 (4) of the Constitution.      It cannot be disputed that the State must do everything possible for  the upliftment  of the  Scheduled  Castes  and Scheduled Tribes  and other  backward  communities  and  the State is  entitled to  make reservations  for  them  in  the matter of admission to medical 786 and other  technical institutions. In the absence of any law to the  contrary, it  must also be open to the Government to impose  such   conditions  as  would  make  the  reservation effective and  would benefit  the  candidates  belonging  to these  categories   for  whose   benefit  and   welfare  the reservations have  been made.  In any  particular situation, taking into  consideration the  realities and  circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such  modification or  variation  becomes  necessary  for achieving the  purpose for  which reservation  has been made and if there be no law to the contrary. Note (ii) of rule 20 of the  Rules for  admission framed  by the State Government specifically empower the Government to grant such relaxation in the  minimum qualifying  marks to  the extent  considered necessary. In the State of Kerala and Anr. v.N.M. Thomas (1) this Court  by a  majority had  held that  relaxation of the Rules which  required a  lower  division  clerk  to  pass  a departmental test  within a  period  of  two  years  in  the interest of  the employees belonging to Scheduled Castes and Scheduled Tribes  was not  unconstitutional or  illegal. The relaxation  made   by  the  State  Government  in  the  rule regarding selection  of candidates  belonging  to  Scheduled Castes and  Scheduled  Tribes  for  admission  into  medical colleges cannot  be said  to be  unreasonable and  the  said relaxation constitutes  no violation  of Art. 15 (l) and (2) of the  Constitution. The  said  relaxation  also  does  not offend Art.  14 of  the Constitution.  It has  to be noticed that there  is no  relaxation  of  the  condition  regarding eligibility  for   admission  into   medical  colleges.  The relaxation is  only  in  the  rule  regarding  selection  of candidates  belonging  to  Scheduled  Castes  and  Scheduled Tribes categories  who were otherwise qualified and eligible to seek  admission into medical colleges only in relation to seats reserved  for them.  The respondent  Nivedita Jain and other deserving  candidates may  feel that  because  of  the reservations they  are being  deprived of the opportunity of getting  their  admission  into  medical  colleges.  It  is. however, to  be noted  that the validity of the reservations of seats  for candidates  belonging to  Scheduled Castes and Scheduled Tribes  categories has  not been challenged in the writ petition and very properly as in view of Art. IS (4) of the Constitution.  In the  case of Jagdish Saran and Ors. v. Union of  India and  Ors.,(l) relied  on by Mr. Phadke, this Court has  held that  the Indian  Constitution is  wedded to equal protection  and non-discrimination and Arts.14, 15 and 16 are inviolable 787 and Art.  29 (2)  strikes a  similar note though it does not refer to  A regional  restrictions or  reservations; Art. IS further saves  State’s power  to make special provisions for women and  children  or  for  advancement  of  socially  and educationally backward  classes and  reservations under Art. IS (4)  exist and are applied. This Court further held at p. 855 as under :-

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         "Coming to  brasstacks, deviation from equal marks      will  meet   with  approval   only  if   the  essential      conditions set out above are fulfilled. The class which      enjoys reservation  must be  educationally handicapped.      The reservation  must be  geared to  getting  ever  the      handicap. The  rationale of  reservation must be in the      case of  medical students, removal of regional or class      inadequacy or like disadvantage."      The view  expressed by the Patna High Court in the case of Amalendu Kumar v. State of Bihar (supra) that Art. 15 (l) of the   Constitution  cannot be  meaningful and will become illusory until  minimum standards  of proficiency  are  laid down and  followed in  the matter  of admission  to  Medical Colleges and  if undeserving  candidates are  admitted  into medical colleges,  the standard of medical education will go down, undeserving  candidates admitted  to medical  colleges would not  be able  to pass  out and  qualify as doctors and there  may  be  many  drop-outs  and  doctors  not  properly qualified will  prove a  danger to  society, appears  to  be untenable. It fails to notice that there is no 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. There may be drop- outs and many of these candidates may not qualify. There may also be  such failures  and drop-outs  in the  case of other candidates than  those belonging  to these categories. It is eminently desirable  that some  kind of minimum standard for selection for  admission  to  medical  colleges  apart  from eligibility should  be there.  It has been represented to us by the  Counsel for  the State  that the State has, in fact, prescribed such a minimum standard for selection of even the candidates  belonging  to  Scheduled  Castes  and  Scheduled Tribes into medical colleges.      The only  other ground that was urged in support of the case of  the writ  petitioners that the order in question is illegal and  invalid, is that the order violates ordiance 54 of the University of 788 Jabalpur.  No  such  ground  has  been  taken  in  the  writ petition.  Though   the  High   Court  has  considered  this argument, the High Court does not appear to have come to any definite finding  on this  question. This  question, in  the instant case,  cannot be  said to be a question of pure law. In the  affidavit which  has been  filed on  behalf  of  the University, it has been stated that the ordinance 54 has not been adhered  to. In  the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not  entitled to  urge this point and rely on any alleged contravention of ordinance 54 of Jabalpur University.      In the  result the order in question is not, therefore, liable to be struck down as being violative of Regulation Ir or of  Art. 15  of the  Constitution. The appeal. therefore, succeeds. The  Judgment and  order passed  by the High Court are hereby  set aside  and the  writ petition  is dismissed. There will, however, be no order as to costs.      Though  this  appeal  succeeds,  yet  in  our  opinion, justice requires  that the  respondent Nivedita Jain who has already been admitted to the Medical College on the basis of interim order  passed by  the Court and has been prosecuting her studies should be allowed to continue her studies and to continue to  be student  of the Medical College where she is already studying. She is otherwise a qualified candidate and eligible for  admission into the medical course which she is now undergoing  and the  cause of  justice does  not require

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that her studies should be interrupted and her career should not  be   put  in   jeopardy.  We,   therefore,  direct  the authorities concerned  to treat the student Nivedita Jain as a regular student of the college where she has been admitted and to allow her to continue her studies. S.R.                                 Appealls alllowed. 789