Bombay High Court
Dr. Keval S/O Rameshrao Dhone And ... vs Kasturba Health Societys, ... on 25 April, 2017
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 1356 of 2017
Petitioners : 1. Dr Keval son of Rameshrao Dhone, aged
about 26 years, Occ: Student, resident of Deoli,
District Wardha
2. Dr Dinesh son of Mahadeo Chandewar, aged
about 26 years, Occ: Student, resident of
Trimurti, Suryaketu Nagar, Khat Road, Bhandara
3. Dr Dinesh son of Vishweshwarrao Hinge,
aged about 26 years, Occ: Student, resident of
Ward No. 2, Bhugaon, Post Seloo (Kate), Dist.
Wardha
4. Dr Bhushan son of Sureshrao Telrandhe,aged
about 26 years, Occ: Student, resident of near
Dhuniwale Math, Wardha
5. Dr Rajneesh son of Jaindndra Kumar Rawat,
aged about 32 years, Occ: Student, resident of
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2
Parsauni, Chaurichaura, Dist. Gorakhpur, UP
versus
Respondents : 1. Kasturba Health Society's Mahatma
Gandhi Institute of Medical Sciences,
Sevagram, Wardha
------------
Interveners : 1. Dr Dhavalkumar son of Shivram Bansode,
aged about 30 years, Occ: service, resident of
Korewadi, Tahsil Tuljapur, District Osmanabad
presently residing at Bungalow No. 15,
Saraswat Colony, Somwarpeth, Pune
2. Ms Shraddha d/o Avinash Kurekar, aged
about 25 years, Occ: Student, resident of Flat
No. 201, Manik Park, Somwalwada, Nagpur
3. Ms Ankita d/o Ashok Lodam, aged about
26 years, Occ: Student, resident of 64,
Teachers Colony, Panjara Koradi, Dist. Nagpur
Shri F. T. Mirza, Advocate and Shri Shakul Ghatole, Advocate with him
for petitioners
Shri Adwait Manohar, Advocate for respondent
Shri A. S. Kilor, Advocate for interveners
Coram : B. P. Dharmadhikari And
S. B. Shukre, JJ
Date of Reserving the Judgment : 4th April 2017
Date of Pronouncing the Judgment: 25th April 2017
Judgment (Per S. B. Shukre, J)
1. Heard. Rule, made returnable forthwith. Heard finally by consent
of parties.
2. This petition involves a question as to whether or not the
respondent Mahatma Gandhi Institute of Medical Sciences (hereinafter
referred to as the "IMS" for brevity) can prescribe criteria for admitting
students to its post-graduate medical courses which have not been
prescribed by the Medical Council of India (for short, "the MCI) especially
when the Post-graduate Medical Education Regulations, 2000 (for short,
"the Regulations of 2000") made by the MCI in exercise of its powers
under Section 23 read with Section 20 of the Indian Medical Council Act,
1956 with the previous sanction of the Central Government regulate in a
centralized manner admissions to post-graduate medical courses offered
by the Government as well as non-Governmental medical institutions
across India.
3. This Court on 7.3.2017, when the Writ Petition was
presented, issued notice and mqade it returnable on 14.3.2017. On
16.3.2017, respondent was restrained from finalizing the select list for
admission. Thereafter, a Special Bench was required to be constituted for
taking up the matter. The Special Bench conducted hearing in second
half on 3rd and 4th April 2017. On 4th April 2017 while closing the matter
for judgment, respondent Sewagram College was permitted to prepare
select list separately by adhering to the MCI Regulations and as per
Sewagram Rules to save loss of time. However, lists are directed to be
kept in sealed envelope until further orders.
4. The petitioners who possess MBBS Degree conferred upon them by
the respondent IMS and who have also completed their internship, are
eligible for being admitted to the post-graduate courses offered by
respondent IMS having secured marks at National Eligibility-cum-
Entrance Test (Post Graduate) Rules (for short, the "NEET") more than
minimum marks at requisite percentile which is 50 for general candidates
and 40 for reserved candidates. The petitioners, in response to an on-line
advertisement inviting applications from the eligible candidates for
admission to various post-graduate courses of respondent-IMS, submitted
on-line their applications to the respondent-IMS. Advertisement which
was issued on 16th February, 2017 clarified that Information Booklet for
post-graduate admission at the respondent IMS containing rules and
regulations, would be made available on the website latest by 6 th March
2017. It appears that the petitioners submitted their application forms
on-line without having detailed knowledge about the criteria prescribed
by respondent IMS for admitting students to its post-graduate courses.
5. The Information Booklet, as assured in the advertisement dated
16.2.2017, was indeed published by the respondent IMS. The
Information Booklet contained the rules and regulations for admissions.
Some of the clauses of the rules, however, according to the petitioners
agitated against the Regulations of 2000 made by the MCI, in particular
its clause 9 (IV) as amended by the notification dated 21.12.2010,
which prescribes that merit alone as determined under it shall be the only
criterion for admitting students to post-graduate medical courses.
6. At this juncture, it will be useful to take a brief overview of
relevant provisions of the Regulations of 2000.
Clause 9 of the Regulations of 2000 mandates that there shall be
national eligibility-cum-entrance examination (for short, "the NEET") for
admission to post-graduate courses in each academic year and vests over-
all superintendence, direction and control over the NEET with the MCI or
the authority selected in that regard by the MCI with prior approval of the
Central Government. It also prescribes eligibility criteria and lays down
that an All India Merit List as well as State-wise Merit List of the
candidates will be prepared on the basis of marks obtained in NEET and
the candidates will be admitted to post-graduate courses from such merit
list only. It provides for reservation of seats in accordance with the
applicable laws prevailing in the State/Union territories. This clause has
seen its amendment introduced by notification of the MCI dated
15.2.2012 whereby concept of percentile of marks has been put in place
and weightage in the marks is also given. Earlier, in order to be eligible
for applying to the post-graduate medical course, it was necessary for the
candidates to obtain minimum of 50% or 40% marks depending upon
their category, general or backward. Now, in terms of notification dated
15.2.2012 this criterion has been changed to marks obtained at 50 th or
40th percentile, as the case may be. Earlier, there was no weightage given
for service of Public/Government Authority in remote and/or difficult
areas. But, by notification dated 15.2.2012, weightage in marks @ 10%
of the marks obtained for each year of service in remote and/or difficult
areas upto the maximum of 30% of marks obtained in NEET is allowed to
be given as an incentive.
By a notification issued by the MCI on 10 th March 2017, clause 9A
has been added to the Regulations of 2000 laying down that there shall
be common counselling for admission to all post-graduate courses in all
medical educational institutions on the basis of merit list of the NEET and
such common counselling shall be conducted by the State Government.
Clause 9A is applicable to the medical educational institutions established
by the Central Government, State Government University, Deemed
University, Trust, Society or a company/Minority
Institutions/Corporations etc. In a recent development, the Indian
Medical Council Act, 1956 has also been amended with effect from 5 th
August 2016 and Section 10D has been inserted into the Act. Section 10D
provides for substantive base to applicability of NEET to admissions to
post graduate courses at medical educational institutions - governmental,
non-Governmental, private and so on across India.
7. The Admission Rules of the respondent IMS, however, contain
some clauses, clauses 4.5 and 10, the impugned clauses, which the
petitioners contend, are discriminatory and inconsistent with the
Regulations of 2000, in particular its clause 9 (IV) and adversely affect
the merit criterion prescribed under the Regulations of 2000. The
petitioners also submit that the respondent IMS being affiliated to the
MCI, is bound by the Regulations of MCI and unless it has authority to
prescribe any rules or criteria of its own for regulating admissions to its
post-graduate medical courses, it cannot do so or lay down any
conditions which would adversely affect the criteria prescribed for
admissions under Regulations of 2000 and the respondent IMS does not
possess any such authority in law. Thus, by this petition, the petitioners
seek quashing of these impugned clauses of the Admission Rules of
respondent IMS viz. Post-graduate Medical Courses (Selection) Rules,
1985 as published in the Information Booklet issued for giving
information about rules for provisional admissions to the post-graduate
courses-2017/18.
8. Shri Mirza, learned counsel for the petitioners submits, by
relying on the case of State of Uttar Pradesh & ors v. Dinesh Singh
Chuhan reported in (2016) 9 SCC 749, that clause 9 of the Regulations
of 2000 is a self-contained Code governing the procedure to be followed
for admissions to the medical courses and the Regulations of 2000 having
been framed under a Central legislation, would prevail over any State
rules or regulations. He contends that as a matter of fact, in the present
case, the procedure relating to making admissions to post-graduate
medical courses at all medical institutions in the State prescribed by the
State of Maharashtra does not envisage any criterion of rural service nor
does it contain any provision for giving of any incentive marks for service
in rural areas muchless rural service at NGOs recognized by respondent
IMS with postings also made by it. He further submits that the
respondent IMS is not the "State" as defined under Article 12 of the
Constitution of India and, therefore, would have no authority to take
recourse to the executive power of the State under Article 162 read with
Article 166 of the Constitution of India to prescribe its own admission
criteria inconsistent with those laid down under Regulations of 2000 in
the name of raising of standard of medical education or under the cover
of its autonomy in regulating admission process for imparting medical
education under Entry 25 of the VII Schedule by issuing an executive
direction. According to him, the rural service criterion and also criterion
of incentive marks @ 10% of the NEET score for each completed service
in rural area at NGO recognized by the respondent IMS subject to
maximum of 30% of the NEET score adversely affect the merit criterion
prescribed under clause 9 (IV) of the Regulations of 2000 and this
cannot be done by respondent IMS.
9. Shri Adwait Manohar, learned counsel for the respondent
contends that the impugned clauses are nothing but examples of setting
up of higher standards for regulating admissions to post-graduate medical
courses offered by respondent IMS. By these clauses, he submits,
respondent IMS has only prescribed additional criteria, which criteria
when examined in their proper perspective, would only come out as the
criteria prescribing higher standard of merit. According to him, the
criteria of compulsory rural service and giving of incentive marks for each
year of service in rural area at NGOs recognized with postings made by
the Dean of respondent IMS only raise the minimum merit criterion
prescribed under clause 9 (IV) of Regulations of 2000. He submits that
the respondent IMS no where compromises on quality as determined by
the merit criteria prescribed not only under the Regulations of 2000 but
also Admission Rules of respondent IMS and that it is not the case that the
respondent IMS is giving admissions to any candidate who has secured
lesser marks than the minimum of marks prescribed under Regulations of
2000.
10. Shri Manohar, learned counsel for the respondent further
submits that by the impugned clauses, the respondent IMS has only
regulated the admission process, which is permissible under the law.
Relying upon the supplementary judgment in the case of Modern Dental
College And Research Centre & ors v. State of Madhya Pradesh & ors
reported in (2016) 7 SCC 353, he submits that power of the Union under
Entry 66 of the Union List is limited to prescribing standard of higher
education to bring about the uniformity in the level of medical education
imparted throughout the country. But, he submits, the scope of Entry 66
does not extend to laying down the admission process and that the State
is not divested of its power to legislate under Entry 25, List III for the
purpose of regulating the admission process in the institutions imparting
higher medical education. According to him, the impugned clauses only
regulate the admission process and cannot be construed as adversely
affecting the prescription under the Central law laying down standard of
higher medical education.
11. Shri Manohar, learned counsel further submits that
prescription of compulsory rural service and also providing for incentive
marks for rural service at recognized NGOs is in public interest as it serves
the rural populace, much deprived of its rightful claim to have access to
quality medical attention and care. He points out that these clauses are
also consistent with the national health policy which proposes financial
and non-financial incentives, creating medical colleges in rural areas;
giving of preference to students from under-serviced areas, making
mandatory the rural postings, amongst other measures. He further
submits that the efforts taken by respondent IMS in promoting rendering
of medical services in rural areas, have been acknowledged by the
Ministry of Health and Family Welfare, Government of India when they
were incorporated in its annual report of 2013-14. He points out from the
said annual report that the report of the Task Force on Medical Education
of the National Rural Health Mission spells out the need to draw
inspiration from respondent IMS's initiatives and experience in curriculum
innovation and rural placement of its graduates. Learned counsel thus
submits that the impugned clauses should be viewed as raising minimum
bench mark for admissions to post-graduate medical courses by providing
for such additional conditions as promote national health objectives and
not as obstruction to merit criterion prescribed under the Regulations of
2000.
12. Shri Manohar further submits that while giving admissions to
post-graduate medical courses, the respondent IMS does not charge any
capitation fees and does not indulge in profiteering and it makes
admissions only on the basis of criterion of merit which is determined not
only by taking into consideration the criterion prescribed under
Regulations of 2000, but also additional criterion prescribed by it under
the impugned clauses. He further submits that this is permissible for the
respondent IMS as the Full Bench of this Court in the case of Nachane
Ashwini Shivram & ors v. State of Maharashtra & anr reported in 1998
(2) Mh. L. J. 234 has held that the respondent IMS is entitled to control
admissions in accordance with the rules framed by it as it is a class of its
own.
13. Shri A. S. Kilor, learned counsel for the interveners submits
that clause 4.5 as well as clause 10 of the Admission Rules prescribe only
additional criteria, thereby enhancing the criterion of merit prescribed in
proviso to clause 9 (IV) of Regulations of 2000 and, therefore, it cannot
be said that they go completely against the merit criterion prescribed
under Regulations 2000. According to him, the impact of the additional
criteria prescribed by any medical institution on the criteria prescribed
under the Central legislation has to be considered and if the impact is
seen to be heavy or devastating so as to wipe out or appreciably abridge
the Central field, the rule prescribing such additional criteria by the State
or an authority under the State must give way to the Central regulations.
But, he submits that such is not the case here. He places his reliance upon
the cases of R. Chitralekha v. State of Mysore & ors reported in AIR
1964 SC 1823 and D. N. Chanchala v. State of Mysore reported in AIR
1971 SC 293.
14. Shri Kilor, learned counsel for the interveners further submits
that merit is something which is composite and it consists of several
angles and dimensions which when taken together make up for one
quality of excellence or what is considered to be the merit. According to
him, if marks obtained at NEET at 50 th percentile or 40th percentile, for
general or backward candidates, as the case may be, is the minimum
criterion of merit for getting admission to a post-graduate medical course,
the aptitude for and inclination to render medical care in rural areas
where it is common knowledge, good medical facilities are almost non-
existent, would certainly be the dimensions of merit and when these
dimensions of merit are added as the compulsory qualifications for getting
admission to post-graduate medical courses offered by an institution like
the respondent IMS, the effort must be seen as only amounting to
prescription of higher standard as held in the case of Preeti Srivastava v.
State of M. P. reported in (1999) 7 SCC 120. Shri Kilor further submits
that by the impugned clauses, respondent IMS has not in any manner
lowered down the merit criterion or standard of post-graduate medical
courses nor does respondent IMS prefer anyone with marks lesser than
the minimum percentile of marks obtained at the NEET. Thus, he
submits, what the respondent IMS has done is only consideration of
additional factors over and above the minimum prescribed percentile of
marks for giving admissions to post-graduate medical courses offered by
it, which is permissible under the law.
15. The arguments advanced on behalf of both the sides are
centred upon the authority of the respondent IMS to prescribe its own
criteria apart from the criteria laid down by Regulations of 2000 and the
legitimacy and the validity of such prescription by the respondent IMS.
Therefore, it would be necessary to reproduce the relevant clauses of
Regulations of 2000 as amended uptodate and Admission Rules as
contained in Information Booklet of respondent IMS. These are clause 9
of the Regulations of 2000 and clauses 4.5, 5 and 10 of the Admission
Rules of the respondent IMS.
Regulations of 2000
"9. Procedure for selection of candidate for
Postgraduate courses shall be as follows :
I. There shall be a single eligibility cum entrance
examination namely 'National Eligibility-cum-Entrance Test for
admission to Postgraduate Medical Courses' in each academic
year. The overall superintendence, direction and control of
National Eligibility-cum-Entrance Test shall vest with Medical
Council of India. However, Medical Council of India with the
previous approval of the Central Government shall select
organization/s to conduct 'National Eligibility-cum-Entrance
Test for admission to Postgraduate courses.
II. 3% seats of the annual sanctioned intake capacity
shall be filled up by candidates with locomotory disability of
lower limbs between 50% to 70% :
Provided that in any seat in this 3% quota remains
unfilled on account of unavailability of candidates with
locomotory disability of lower limbs between 50% to 7-% then
any such unfilled seat in this 3% quota shall be filled up by
persons with locomotory disability of lower limbs between
40% to 50% - before they are included in the annual
sanctioned seats for General Category candidates:
Provided further that this entire exercise shall be
completed by each medical college/institution as per the
statutory time schedule for admissions.
III. In order to be eligible for admission to any
postgraduate course in a particular academic year, it shall be
necessary for a candidate to obtain minimum of 50% (Fifty
Percent) marks in 'National Eligibility-cum-Entrance Test for
Postgraduate courses' held for the said academic year.
However, in respect of candidates belonging to Scheduled
Castes, Scheduled Tribes, Other Backward Classes, the
minimum percentage marks shall be 40% (Forty Percent) and
in respect of candidates as provided in clause 9 (II) above with
locomotory disability of lower limbs, th'e minimum percentage
marks shall be 45% (Forty Five Percent) in the National
Eligibility-cum-Entrance Test:
Provided when sufficient number of candidates in the
respect categories fail to secure minimum marks as prescriged
in 'National Eligibility-cum-Entrance Test for Postgraduate
courses' held for any academic year for admission to Post
Graduate Courses, the Central Government in consultation
with Medical Council of India may at its discretion lower the
minimum marks required for admission to Post Graduate
Course for candidates belonging to respective categories and
marks so lowered by the Central Government shall be
applicable for the said academic year only.
IV. The reservation of seats in medical
colleges/institutions for respective categories shall be as per
applicable laws prevailing in states/Union Territories. An all
India merit list as well as State-wise merit list of the eligible
candidates shall be prepared on the basis of the marks
obtained in National Eligibility-cum-Entrance Test and
candidates shall be admitted to Post Graduate courses from
the said merit lists only.
Provided that in determining the merit of candidates,
who are in service of government/public authority, weightage
in the marks may be given by the Government/Competent
Authority as an incentive at the rate of 10% of the marks
obtained for each year of service in remote and/or difficult
areas upto the maximum of 30% of the marks obtained in
National Eligibility-cum-Entrance Test. The remote and
difficult areas shall be as defined by State
Government/Competent authority from time to time."
Admission Rules of respondent IMS
"4. Eligibility criteria and Requirements for Applying -
4.1 .....
4.2.....
4.3.....
4.4......
4.5
i) Must have two years of rural service with pay on or before
31st December 2016. However, those who have done minimum
of one year rural service on or before 31 st December 2016 are
also eligible to apply for 2017 PG Courses but they must do the
remaining period of rural service after completing the P. G.
Course to make the total rural service of two years.
ii) The rural service period would not include any period of
leave without pay (See Annexure IA & B).
iii) During the rural service the candidate must have resided at
the place of work.
iv) First priority shall be given to the candidates who have
completed rural service for which appointment order has been
issued by the Dean, MGIMS, Sevagram.
a) At a Non Government Voluntary Organization (NGO)
working for rural health care and recognized by MGIMS.
b) or at a PHC in Maharashtra for which the first order
has been issued by the Dean, MGIMS and subsequent order by
the Government authority.
Note - The above candidates must produce certificate of
completion of rural service given by the Chief authority of the
respective NGO or District Health Officer (DHO) countersigned
by Dean, MGIMS as the case may be."
5. Non Eligibility:
The candidate will be declared non-eligible
5.1 If he/she does not fulfill any of the criteria as mentioned
in 4 above.
10. Determination of Merit :
10.1 On the basis of online application forms, and selection
process, a provisional merit list will be prepared. The total marks
obtained in the NEET PG 2017 score/marks will be tabulated for
merit calculation after making the following additions or
deductions as the case may be :
In determining the merit, the weightage in the marks shall
be given as an incentive (additional marks) at rate of the 10%
marks for completed one year compulsory rotatory internship
from Mahatma Gandhi Institute of Medical Sciences, Sevagram
and 10% marks obtained for each year of service in rural area at
NGO recognized and posted by Dean MGIMS Sevagram up to
maximum of 30% of the marks obtained in NEET PG 2017. For
each extra attempt, a deduction of 5% of the maximum marks of
the subject in which candidate has failed will be made from the
above aggregate.
16. It would be clear from above that clause 9 (IV) of Regulations
of 2000 speaks of the reservation of seats in medical colleges/institutions
for respective categories in accordance with the applicable laws prevailing
in the State and the Union Territory on the one hand and preparation of
all India merit list as well as State-wise merit list of the eligible candidates
on the basis of the marks obtained in NEET, on the other. It also declares
that candidates shall be admitted to post-graduate medical courses from
such merit list only. The proviso to clause 9 (IV) further clarifies the
manner in which merit of in-service candidates is to be determined. It
makes a special provision for giving incentive marks by laying down that
those candidates who had rendered service in remote and/or difficult
areas, as defined by the State Government or the Competent Authority
from time to time, shall be given incentive marks @ 10% of the marks
obtained at NEET for each year of such service subject to maximum of
30% of the NEET score.
17. The afore-stated provision of the incentive marks was
questioned for its validity in Balaji Gyanoba Phalke (Dr) & ors v. Union
of India (supra) and the Division Bench of this Court found that the
objection was without any basis. It held that grant of incentive marks was
for the purpose of encouraging more doctors to render medical aid in the
difficult and remote areas of the country and that by these marks, there
was no lowering of the requirement of merit in the preparation of merit
list or granting admissions as contemplated in the judgment of the
Supreme Court in the case of Dr Preeti Srivastava v. State of MP
(supra). The Division Bench found that the State of Maharashtra has
already defined the "remote and difficult areas" by issuing a Government
Resolution dated 3.5.2011 in that regard.
18. In the present case, there is no dispute about issuance of the
Government Resolution dated 3.5.2011 by the State of Maharashtra.
Equally, it is not the case of anybody that by giving incentive marks for
rendering service in remote and/or difficult areas, some candidates are
given unjust advantage over the candidates who have secured more
percentile of marks at NEET. The grievance of the petitioners, as stated
earlier, is about lack of authority to prescribe any such criterion of
determination of merit as would adversely affect the merit criterion for
admissions contained in the Regulations of 2000. The reference to the
said case of Balaji Gyanoba Phalke has been made by us only to point
out that the validity of criterion of service in "remote and/or difficult"
areas is already tested and that the expression "remote and/or difficult
areas" has also been defined by the State of Maharashtra in its resolution
dated 3.5.2011.
19. A perusal of the impugned clauses 4.5 and 10.1 read with
clause 5.1 of the Admission Rules of respondent IMS would show that the
respondent IMS has made rendering of rural service as an essential
condition for admitting students to its post-graduate medical courses and
has also provided for incentive marks at the rate prescribed in clause 10.1
for rendering rural service at NGOs recognized by the respondent IMS
with postings done there, also by respondent IMS. These criteria, it can
be seen without any efforts, do not form part of Regulations of 2000, in
particular its clause 9 governing selection of candidates for post-graduate
medical courses in all medical colleges and institutions across the nation .
The question would be, if this can be done by respondent IMS or not.
20. Before attempting an answer to the question, it would be
useful to know as to how the Supreme Court has dealt with the issue of
repugnancy or inconsistency of the State law to or with the Central law as
it would provide us an insight into the question involved in this case and
would enable us to know the spheres of the powers of the Central
Government and the State Government viz-a-viz Entry 66 List I and Entry
25, List III respectively.
21. In Modern Dental College And Research Centre & ors v.
State of MP & ors (supra), a Bench of 5 Judges of the Supreme Court
considered the law enunciated by the Supreme Court since the time of the
case of Gujarat University v. Krishna Ranganth Mudholkar reported in
AIR 1963 SC 703 and Bharti Vidyapeeth v. State of Maharashtra
reported in (2004) 11 SCC 755 on the subject. The Supreme Court found
that there is a consistent line of precedents holding that the power of the
State to legislate in respect of education to the extent it is entrusted to the
Parliament is deemed to be restricted by the Parliament's power to
provide for coordination and determination of standards in institutions
for higher education under Entry 66 and this is a subject which is
exclusively within the sphere of power of the Union. It was further held
that the power of the State under Entry 25, List III to legislate in respect
of education, is subject to the provisions of Entries 63, 64, 65 and 66 of
List I. The Supreme Court also observed that these two powers of the
Union and the State are to an extent overlapping and that whenever such
overlapping takes place, the validity of the State legislation would depend
on whether or not it prejudicially affects "coordination or determination
of standard" even in the absence of Union legislation. Referring to the
case of R. Chitralekha (supra), Supreme Court held that if the impact
of the State law is such that it wipes out or abridges the Central law, it
must be struck down. The Supreme Court also considered similar ratios
laid down in the cases of State of T.N. v. Adhiyaman Educational &
Research Institute reported in (1995) 4 SCC 104; Preeti Srivastava
(supra) and State of Maharashtra v. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya reported in (2006) 9 SCC 1. In the process, the
Supreme Court also overruled the case of Bharti Vidyapeeth v. State of
Maharashtra to the extent it held that the entire gamut of admissions
was covered by List I Entry 66 leaving no scope for the State to have its
say in the field allocated to it under Entry 25, List III and which is still
unoccupied by the Central field. The Supreme Court also made it clear
that exercise of any power under Entry 25, List III would be subject to
Central law referable to or affecting the field of Entry 25 List III, thereby
paving the way for the State to make enactments and rules under Entry
25 List III for regulating admissions subject to the limits imposed on its
power by the Union legislation covering, expressly or by necessary
implication, the same field. This would also make it clear that if any
conflict arises between the Union and the State legislation, same would
have to be resolved by applying the test of adverse impact of the State law
on the Union law in view of the provisions of Article 254 of the
Constitution of India. Even in the case of Sankalp Charitable Trust &
anr v. Union of India & ors reported in (2016) 7 SCC 487, the Hon'ble
Apex Court has reiterated this very principle of law as laid down in
Modern Dental College (supra).
22. Having understood the limits on the State power to enact
and make rules by taking recourse to its power under Entry 25 List III so
as to regulate process of admissions to the institutions imparting, amongst
other, medical education, now that we have to consider the impugned
clauses of the Admission Rules of respondent IMS. These clauses, as
stated earlier, make condition of rendering of rural service on or before
stipulated date i.e. 31st December 2016 as compulsory and give not only
first priority to the candidate who has completed rural service on the
basis of the appointment order issued by the Dean of respondent IMS but
also give weightage in marks @ 10% of the NEET score subject to
maximum of 30% of NEET score for each year of service rendered in rural
area at NGO which is recognized by the respondent IMS and posting to
which is also done by the respondent IMS. Significantly, no such
compulsion, prioritization and weightage for rural service is seen to be
made in the rules framed by the State of Maharashtra governing
procedure for selection and admission to post-graduate medical courses
on the basis of NEET PG 2017. We have also seen that under Entry 25,
List III, the State has power to legislate or frame Rules regulating
admissions to various institutions and Universities including medical
institutions in the State, subject to the power of the Union to enact for
coordinating and also determining standards of higher education and if
any enactment or the rules framed by the State under Entry 25, List III
has the effect of substantially abridging or wiping out the Central
legislation, the later must prevail in view of the provisions of Article 254
of the Constitution of India. But, here is the case wherein there is no
dispute raised about any conflict between the State law and the Union
law and the dispute raised is about the conflict between Regulations of
2000 and Admission Rules of respondent IMS which are published in
Information Booklet. To be precise, the controversy involved here is
about inconsistency of clauses 4.5, 10 (impugned clauses) with clause 9
(IV) of Regulations of 2000, as amended up to date. The Admission Rules
containing impugned clauses are framed by a private institution run by a
registered Trust like respondent IMS which is not the "State" as defined
under Article 12 of the Constitution of India, as rightly submitted by the
petitioners. Obviously, therefore, a private institution like respondent
IMS, not armed with any State power under Entry 25, List III, cannot
frame any rules regulating admissions to its post-graduate medical
courses so as to adversely or prejudicially affect the rules framed by the
Union under Entry 66 List I and which occupy the field and for that
matter, even by the State under Entry 25 List III which completely
regulate the admission process.
23. Regulations of 2000 are the rules framed under Central
legislation and clause 9 has been held to be a self-contained Code
governing the procedure to be followed for admission to medical courses
by the Supreme Court in the case of Dinesh Singh Chauhan (supra). It
has also held that there are certain areas in education field and the
procedure for selection of candidates for post-graduate degree courses
being one amongst other, where the Central legislation and regulations
must prevail. Relevant observations of the Hon'ble Apex Court which
appear in paragraph 24 are reproduced thus :
"24. By now, it is well established that Regulation 9 is a self-
contained code regarding the procedure to be followed for
admissions to medical courses. It is also well established that
the State has no authority to enact any law much less by
executive instructions that may undermine the procedure for
admission to post-graduate medical courses enunciated by the
Central legislation and regulations framed thereunder, being a
subject falling within Schedule VII List I Entry 66 of the
Constitution (see Preeti Srivastava v. State of M.P.). The
procedure for selection of candidates for the post-graduate
degree courses is one such area on which the Central
legislation and regulations must prevail."
24. In Dinesh Singh Chauhan (supra), examining the legality
and correctness of the rules framed by the State of UP providing for
reservation of 30% seats for in-service candidates who had worked in
remote and difficult areas and not for in-service Government medical
officers generally, the Apex Court held that when Regulation 9 (II) does
not envisage reservation of seats for the post-graduate degree courses
generally, the State Government in law had no authority to issue a
Government order dated 28.2.2014 providing for reservation of 30% of
the seats for all in-service candidates and such an order ran contrary to
regulation 9 of Regulations of 2000. This would only re-enforce the view
that we have already taken in this case and which is expressed in earlier
paragraph. If the State, by taking recourse to its power under Entry 25
List III cannot make any rules regulating admission procedure to
institutions imparting medical education contrary to or inconsistent with
clause 9 of Regulations of 2000, it can hardly be digested that a private
institution like respondent IMS can do so.
25. This, however, does not answer the question as to whether or
not a private institution like the respondent IMS can still frame rules
regulating admissions to post-graduate medical courses by prescribing
higher standard in view of the fact that it is a private institution enjoying
some autonomy in the field, though it is not a "State" within the meaning
of Article 12 of the Constitution of India. The answer to the question can
be found in earlier precedents. In the case of D. N. Chanchala (supra), a
3-Judge Bench of the Apex Court held that it is well-settled law that the
Government and also private agencies imparting medical training have a
right to frame rules for admission as long as these rules do not run
counter to the university statutes or the regulations framed by the State or
the Union Territory and do not suffer from infirmity - constitutional or
otherwise. The observations of the Apex Court appearing in paragraph
22, insofar as they are relevant for determining the controversy involved
in this petition, are reproduced thus :-
"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
feasable to satisfy those needs. Since it would not be possible to
admit all candidates in the medical college run by 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,
constitutional or otherwise..."
26. Even in the case of Nachane Ashwini Shivram & ors
(supra), the Full Bench of this Court recognizing independent and
separate status of respondent IMS held that admissions to its courses
would not be governed by the rules framed by the State Government and
respondent IMS would be entitled to control admissions in accordance
with rules framed by it. This was held because the autonomy of the
respondent IMS to make admissions to the extent of 50% of the total seats
from amongst the students from outside the State of Maharashtra was
questioned and to this extent it was held that the respondent institution
did possess the requisite authority to control admissions in accordance
with the rules framed by it. This provision contained in the Admissions
Rules of respondent IMS was uniformly applicable to all students
interested in securing admission to medical courses offered by
respondent IMS and did not have the effect of providing undue advantage
to less meritorious candidates nor did it affect adversely the merit
criterion set by the State rules. Therefore, Nachane Ashwini is the case
which cannot be understood as giving a complete free-hand to respondent
IMS in controlling admissions to its post-graduate medical courses and its
power to do so would be subject to the Central regulations already
occupying the field.
27. A combined effect of D. N. Chanchala and Nachane Ashwini
(supra) ratios would be that a private institution like the respondent IMS
can frame its admission rules so as to regulate admissions to post-
graduate medical courses, but only to the extent that they do not run in
conflict with or do not appreciably abridge the central field by creating a
heavy and devastating impact on the central regulations. Whether any
rule framed by the State Government and for that matter, even by a
private institution like respondent IMS, appreciably abridges the Central
regulations and undermines the procedure of admission to post-graduate
medical courses laid down under the Central regulations or not is a
question of fact to be determined on the basis of facts and circumstances
of each case. Viewed in this way, now it would be necessary to examine
the impact that the impugned clauses of Admission Rules of respondent
IMS would have on clause 9 (IV) of Regulations of 2000.
28. We have already discussed the nature of the impugned
clauses. They have the effect of making rural service compulsory, giving
prioritization to rural service and also offering weightage in marks @ 10%
of the total marks obtained in NEET PG-2017 subject to marks upto 30%
thereof for each year of service rendered at NGOs recognized by
respondent IMS on the basis of postings done by respondent IMS. Such
compulsion, prioritization and according of weightage viz-a-viz rural
service is conspicuously absent in Regulations of 2000, which has primacy
over the field as held in the case of Dinesh Singh Chauhan (supra).
29. Now, let us take the case of weightage first. Proviso to clause
9 (IV) is relevant in this regard. It gives incentives in marks @ 10% of
total marks obtained at NEET for each year of service completed in
remote and/or difficult areas as defined by the State Government subject
to maximum of 30% of the total NEET score. It does not envisage similar
weightage to be given for rendering of rural service. When weightage for
rural service is given, as has been done by clause 10.1 of the impugned
clauses, it would have the effect of giving more advantage to the
candidates aspiring for post-graduate medical courses and even if such
candidates have scored lesser marks in NEET PG 2017 than the others,
still such candidates, by virtue of rural service weightage, would steal the
march over candidates who have secured more marks in NEET-2017.
This would, in our view, compromise the criterion of merit to be
determined strictly in accordance with clause 9 (IV) of Regulations of
2000 which recognizes giving of weightage to only those candidates who
have rendered service in remote and/or difficult areas of the State and
does not extend the same benefit to rural service. A candidate in a given
case, may have no qualification of rural service but may have done service
in the remote and/or difficult areas as per clause 9 (IV) of Regulations of
2000, still, may be at a disadvantage qua the candidate who has done
both rural service in terms of clause 10.1 of the impugned clauses and
remote and/or difficult area service as per clause 9 (IV) of Regulations of
2000. This is how clause 10.1 of the impugned clauses would undermine
merit criterion of Regulations of 2000.
30. As regards compulsion of rural service (clause 4.5 (I) of the
impugned clauses), there is no similar provision either under the
Regulations of 2000 or the procedure prescribed for admission to these
courses by the State Government for NEET PG-2017. Regulations of 2000
or the State rules also do not contain any provision akin to clause 5.1 of
the impugned clauses declaring a candidate who has not rendered any
rural service as non-eligible for securing admission to post-graduate
medical courses offered by respondent IMS. Similarly, neither the Central
regulations nor the State rules give any sort of priority to the candidates
who have completed any rural service muchless the rural service
following an appointment order issued by the Dean of respondent IMS.
But, clauses 4.5 and 10.1 of the impugned clauses do so. Such
compulsion and prioritization provided under these impugned clauses
run completely contrary to the provisions of clause 9 (IV) of Regulations
of 2000 and the effect that they produce again is the same, of
compromising the merit criterion prescribed under clause 9 (IV) of
Regulations of 2000. By making rural service compulsory and by
shutting doors on non-rural service candidates, clauses 4.5 and 5 of the
impugned clauses, candidates who are otherwise eligible and are more
meritorious as per the merit criterion set by clause 9 (IV) of Regulations
of 2000 are discriminated against. Same discriminatory effect is created
by clause 4.5 (iv) of the impugned clauses which pruioritizes rural service.
31. It is argued that the criteria of compulsion, prioritization and
giving of weightage for rural service laid down by respondent IMS under
its Admission Rules are only the conditions prescribed in addition to the
condition of giving of incentive marks for service in remote and/or
difficult areas under Regulations of 2000 and could be seen as enhancing
the criterion of merit laid down under Regulations of 2000 especially
when there is no motive of earning profit. It is also argued that all those
criteria relating to rural service would subserve the public interest by
encouraging medical graduates to render their services to rural populace
deprived of good facilities of medical aid. It is further submitted that
these criteria are in consonance with the National Health Policy - 2017.
32. We would have accepted the submissions had the impugned
clauses not had the effect of substantially altering the merit criterion laid
down under clause 9 (IV) of Regulations of 2000 resulting in causing of
prejudice to the candidates who have scored more marks at NEET and
giving of advantage to the candidates who have scored lesser marks at
this examination. We must say, the effect of impugned clauses is not the
one of raising the standard of giving admissions to post-graduate medical
courses by increasing the bench mark of 50th percentile or 40th percentile
as the case may be, to some higher bench mark as for example, 60 th
percentile of 50th percentile, as the case may be, as observed in Preeti
Srivastava (supra), but essentially is of giving advantage to those
candidates who have done rural service over and above the candidates
who have not done such service or who have even done service in remote
and/or difficult areas of the State. A condition which raises the bar of
merit from some minimum level to higher level, could qualify itself to be
termed an additional condition or would amount to prescription of higher
standard of merit, as it is uniformly applicable, to all aspirants, without
any discrimination and without making any irrational divisions amongst
them having no reasonable nexus with the object sought to be achieved by
such categorization (see: Chitra Ghosh v. Union of India (1969) 2 SCC
228). But, a condition, which places a rural service aspirant above the
non-rural service one would prejudicially affect the latter in a case where
no such advantage is expressly given in the central regulations occupying
the field. Therefore, unless such an advantage for candidates completing
rural service is envisaged in the central regulations, same cannot be
permitted to be prescribed by a private institution like respondent IMS.
The contention made in this regard is, therefore, rejected.
33. There is yet another argument about how the merit or
excellence is to be judged in the context of admissions to post-graduate
medical courses. The contention is that concept of merit is composite and
multi-dimensional and, therefore, all those aspects which are seen as
desirable, rightful and beneficial in public interest, must also be
considered as laying down together a criterion for achieving the goal of
merit or excellence in institutions of higher education. Thus, it is argued
that when rural service is seen to be desirable and beneficial for villages
in the State and the National Health Policy also encourages rural service,
it should be considered as enhancing the criterion of merit laid down in
clause 9 (IV) of the Regulations of 2000. Reliance has been placed on Dr
Jagdish Saran & ors v. Union of India (supra).
34. In the case of Dr Jagdish Saran, it is held that excellence is
composite and the human heart and its sensitivity are as precious in the
scale of educational values as the human head and its creativity. It is also
found that social medicine for the common people is more relevant than
peak performance in freak cases. But, we must note here that even while
observing so, the Apex Court struck note of caution that if the criterion of
merit is to be judged in this manner, care must be taken to ensure that a
candidate with less marks is not preferred to a candidate with higher
marks and that a Court has to adopt a holistic approach by taking into
account all relevant provisions. Relevant observations of the Apex Court
as they appear in paragraph 21, are reproduced thus :
"21. Before moving to the next aspect we may touch upon a
slightly different angle which opens up a new point of view.
What is merit or excellence ? If potential for rural service or
aptitude for rendering medical attention among backward
people is a criterion of merit- and it, undoubtedly, is in a land of
sickness and misery, neglect and penury, wails and tears-then,
surely, belonging to a university catering to a deprived region is
a plus point of merit. Excellence is composite and the heart
and its sensitivity are as precious in the scale of educational
values as the head and its creativity and social medicine for the
common people is more relevant than peak performance in
freak cases. Marks on this basis will take us to the same
preference as reservations for in-university candidates. Here we
are not preferring one with less marks, but adopting a holistic
manner of marking linked up with backward settings,
institutional orientation and like considerations."
It is clear that while considering the incentive marking for
rural service in the present case, we have to take a holistic view of the
issue ensuring all the while that no one with lesser mark is preferred to
the one having higher marks. MCI which framed Regulations of 2000
has, in its wisdom, prescribed that incentive marks be given for service in
remote and/or difficult areas of the State. Regulations of 2000 do not
envisage anywhere giving of similar or some weightage in marks for rural
service. Rural service, without dispute, cannot be equated with service in
remote and/or difficult areas as defined in the Government Resolution
dated 3.5.2011. It would then follow that concept of merit, as evolved by
MCI under Regulations of 2000, envisages linking of marks with remote
and/or difficult areas only and not with rural service in general, as a
solution for providing social medicine to common people. This would
further show that MCI has given its meaningful consideration to all
relevant factors by taking a holistic approach and then, we have to say,
this Court has no power to substitute the view of MCI or speak for its
wisdom, the MCI being the final authority and expert body in the matter
of exercising over all superintendence, control and direction over the
NEET.
35. Lastly, it is submitted by learned counsel for respondent IMS
and the interveners that there is no express provision in Regulations of
2000 prohibiting prescription of any additional criteria in the nature of
compulsion for rural service, priority for rural service and weightage in
marks for rural service and, therefore, such criteria could always be
prescribed by respondent IMS. Similar argument about absence of
express provision prohibiting prescription of additional criterion was
repelled by the Supreme Court in the case of Dinesh Singh Chauhan
(supra). In that case the Regulations did not provide for reservation for
in-service candidates in "postgraduate degree courses", but provided for
reservation for in-service candidates for post graduate "diploma" courses.
The Supreme Court held that Regulations of 2000 are self-contained Code
and there was nothing in the Regulations to even remotely indicate that a
separate channel for admission to in-service candidates has been provided
at least in respect of post-graduate degree courses. The Supreme Court
further held that if the Regulations intended a similar separate channel
and made provision of in-service candidates even in respect of post-
graduate "degree" courses, the Regulations would have expressly
provided for such separate channel or reservation for in-service
candidates aspiring for post-graduate degree courses. Therefore, the
Apex Court held that by necessary implication, it would have to be found
that a separate channel for in-service candidates was not permissible for
admission to post-gradute "degree" courses. Following this very
reasoning, we find that absence of any express prohibition on giving of
advantage to candidates who have done rural service in clause 9, cannot
be interpreted as permitting private institutions like respondent IMS to
prescribe criterion of compulsion of rural service, prioritization of rural
service and giving of incentive marks for rural service to the candidates
desirous to seek admission to post-graduate medical courses. If the MCI
which framed Regulations of 2000 intended to accord some priority,
some incentive and indispensability to rural service, it would have
expressly made provision in that regard in Regulations of 2000
themselves just like it made an express provision regarding giving of
incentive marks to candidates who have completed service in remote
and/or difficult areas by adding proviso to clause 9 (IV) which was
introduced through amendment vide notification dated 15.2.2012. When
the MCI did not make any such express provision, it would have to be
held by necessary implication that MCI did not intend to give any
advantage for rendering of service in rural areas over and above and even
in exclusion to the rendering of service in remote and/or difficult areas.
The contention is, therefore, rejected.
36. In the result, we find merit in this writ petition. The petition
deserves to be allowed. It would inevitably mean that the impugned
clauses i.e. clauses 4.5 and 10.1 of Admission Rules of respondent IMS
would have to be quashed and set aside. The second clause of clause 10
which is clause 10.2, we find, is also linked to clause 10.1 and, therefore,
the entire clause 10 would have to be quashed and set aside. This is also
what prayer clause (a) of the petition seeks. Since clause 4.5 of the
Admission Rules of respondent IMS is now being quashed, clause 5.1
declaring as non-eligible those candidates not fulfilling the criterion of
clause 4.5 would, by necessary implication, be rendered otiose to that
extent and, therefore, we do not find it necessary to expressly set it aside.
37. The petition is allowed. Impugned clauses 4.5 and 10 of
Mahatma Gandhi Institute of Medical Sciences, Sevagram Postgraduate
Medical Courses Selection Rules, 1985 as published in the Information
Booklet issued for provisional admission to post-graduate medical courses
2017-18, are hereby quashed and set aside and it is directed that the
process of admission shall be carried out in accordance with Regulations
of 2000, however, sans the impugned clauses which are hereby quashed
and set aside.
Rule is made absolute accordingly. No costs.
S. B. SHUKRE, J B. P. DHARMADHIKARI, J
joshi
