DR. PREETI SRIVASTAVA & ANR. ETC. ETC.

Vs.

THE STATE OF MADHYA PRADESH & ORS.

(Admission to Postgraduate Medical Education - Admission criteria Reservation for SCS, STS & OBCs)

Citations: 1999 Supp. SCR 249; 1999(7) SCC 120: 1999 (5) JT 498: 1999 (4) Scale 579; AIR 1999 SC 2894; 1999 (7) Supreme 81; 1999 (4) SLR 687; 1999 (7) SLT 534; 1999 (9) SRJ 371.

FIVE JUDGES CONSTITUTION BENCH

Coram: DR. A.S. ANAND, C.J., S.B. MAJUMDAR, SUJATA V. MANOHAR. K. VENKATASWAMI AND V.N. KHARE, JJ.

HIGHLIGHTS

(1) Education - Constitution of India - Arts. 14,15(4),16(1) & 335-U.P. Postgraduate Medical Education (Reservation for SCs, STS & OBCS).

Act, 1997 Whether for admission to Postgraduate medical courses it is permissible to prescribe a lower minimum percentage of quali-fying marks for the reserved category- U.P. State by legislation prescribing 20% and 45% as qualifying marks for reserved and general categories respectively State of M.P., by executive order, prescribing minimum qualifying marks as 20% for SC. 15% for ST and 40% for OBCs candidates:-

Held: Per majority: Prescribing 20% and 45% as minimum qualifying marks for reserved and general candidates is not permissible under Art. 15(4) of the Constitution, being unreasonable and contrary to public interest;

There cannot be a wide disparity between minimum Qualifying marks for reserved category and general candidates at postgraduate level:

U.P. legislation and M.P. Govt. Order set aside :-
Per Majmudar. J. (partly dissenting): If 45% passing marks are prescribed for general category, permissible dilution of reserved category can go up to 222% (50% of 45%);

any further dilution beyond this would be permissible under Art. 15 (4)- Medical Council of India Act, 1956:

(2) Excellence in standards of education and admission criteria - Fixing standards for education in Per majority:

Can be laid down under List I Entry 66 & List III Entry 25 by Central legislation

State's competence under List III Entry 25 to control or regulate higher education is subject to the standards so laid down by Union of India:

States have competence to prescribe rules for admission to Post Graduate medical courses so long as they are not inconsistent with or do not adversely affect the standards laid down by the Union of India or its delegate;

Fixing minimum qualifying marks for passing the entrance test for admission to Post-graduate courses is concerned with the standard of Post-graduate medical education:

Once minimum standards are laid down, States are competent to prescribe any further qualifications for selection better students as that would not adversely affect the standards so laid down:

"Eligibility" and "qualifications: Distinction "Determination of standards in institutions"

It is for Medical Council of India to determine reservation of seats, if any. to be made for SCS/STS/OBCS, the extent thereof and lowering of qualifying marks in their favour on the basis of proper balancing of public interests:

Per Majmudar, J.

Parliament by enacting Medical Council Act was competent to authorise Medical Council of India to prescribe basic standards of eligibility and qualification for Post-graduate courses.

But States are fully competent to control admission to Post graduate medical courses, provide for reservation of seats, and lay down criteria for short-listing of eligible candidates for Post-graduate courses under List III Entry 25 in the absence of any Central legislation on these aspects:

Per majority: (Majmudar, J., contra) - Held Though depends on several factors, norms for admission have a direct impact on:

(3) Common Entrance Test (CET): Constitution of India, Arts.245. 246, 14, 15(4) & Sch.VII, List | Entry 66 and List III Entry 25-Post-graduate medical education:-

Need and virtue of and purpose of in view of differing standards of teaching and evaluation in different universities;

Such test should be of a certain standard with set Qualifying marks for passing uniformally for all categories of students:

Should be of a certain standard with prescribed qualifying marks for passing:

It is necessary since it is not a mere screening test:-

Medical Council of India Act. 1956. Ss.20 & 33(1) read with regulations on Post-graduate medical education Constitution of India, Art. 254 read with seventh schedule, Entry 66 List I and Entry 25 of List

Admission

Selection of right calibre students essential in public interest;

However lower qualifying marks for reserved categories, viz., SCs/STs/ OBCs for admission to post-graduate medical courses, held, per curiam, permissible:

But there should not be a wide disparity in qualifying marks between reserved and general categories:

Lowering of marks for SCS, STS & OBCs :-

Standard of education

Lowering of qualifying marks in entrance examinations - Effects on standard of education - Who is to decide :-

Held, per majority (Majmudar. J., dissenting): That lowering of qualifying marks do have adverse effect on standard of education-Said standard is to be decided by Union - Hence, State can not impinge on said standards:-

Arts. 15(4), 16(4) Reservation Entrance examination for Post- graduate medical courses Minimum qualifying marks 45% for general category and 20% for Sch. Caste & Sch. Tribe category-

Standard of education If not affected Held (per majority): That prescribing these qualifying marks against the mandate of Art. 15(4). affecting the standard of education:-

Reservations

Is a transitory measure once backward class secure adequate representation in services Reservation will not be required Arts.16(4). 14 & 335 But while considering the claim of backward classes for reservation, maintenance of efficiency of administration has also to be kept in mind.

Protective discrimination in favour of SCS/STs :- Policies and programmes of protective discrimination To be designed and pursued in a manner to build an egalitarian non-discriminating society. Interests of society as a whole cannot be ignored while testing reasonableness of programmes:

Dilution has to be upto a reasonable extent only:

Per majority It is for Medical Council of India to lay down the extent of reservation and lowering of qualifying marks on the basis of proper balancing of public interests:

Such reserved category candidates should be capable of reaching the required standards of excellence in their speciality:

K.L Narasimhan case (1997(6) SCC 285), overruled.

Per Majmudar, J. (dissent)

State competent to fix lower qualifying marks for reserved categories provided it is to a reasonable extent and the dilution should not go below 50% of the qualifying marks uniformly fixed for the general candidates:

Concept of merit cannot be wiped out in its entirety.

Medical Council of India regulations can not curtail power of States from fixing minimum qualifying marks differently for reserved category candidates.

Full play is available to State authorities to exercise legislative or executive power as field is not occupied by any legislation till date:

Further held, Medical Council of India regulations do not cover the question and though not binding, cannot be ignored by State authorities while short-listing eligible candidates for admission to postgraduate medical courses:-

C.E.T.(Common Entrance Test)

Reservation of seats for reserved category candidates Lowering of qualifying marks for reserved category candidates Held: per majority:

Selection should be consistent with Art. 335 as these entrants occupy tests in teaching hospitals:

Per Majmudar, J.:- In diluting the minimum qualifying marks for eligible reserved category candidates, Art.335 cannot apply since students working as residents during the course of study cannot be said to be holding any civil post for hospital :-

(4) Constitution of India, Arts. 15(4) & 16(4), 14 & 335: Post-Graduate Institute of Medical Education & Research, Chandigarh Act, 1966, ss. 2.13.32 & 33 read with Post-Graduate institute of Medical Education & Research, Chandigarh, Regulations 1967, Regn.27 Reservation of 20% of seats for SC & ST candidates for admission to super-speciality courses of D.M. & M.C.H. -

Held, reservation at super speciality level being inconsistent with constitutional mandate under Arts. 15(4) & 16(4) impermissible;

Merit alone can be basis of selection

Public good, like necessity of maintaining the efficiency in administration cannot be sacrificed:

Envisages policy of protective discrimination-But such policy should be reasonable and consistent with ultimate public necessity, i.e. national interest and interest of community or, society as a whole

(5) Constitution of India, Arts. 245. 246 & 254 - Medical Council Act, 1956, SS 20 & 33 Regulations of 1967 framed thereunder :-

Held, per majority: Regulations are binding and covered by List-1 Entry 66;

States cannot make rules and regulations under List III Entry 25 in conflict with these regulations;

State's competence under List III Entry 25 is subject to standards of education laid down under the Act :-

Power under S.20 of the Medical Council Act, 1956, to prescribe minimum standards of Post-Graduate medical education - Not merely advisory in nature but universities are bound to be guided by the standards prescribed:-

Norms have to be laid down by Medical Council of India regarding reservation of seats for SCs/STS/OBCs and also laying minimum qualifying marks for the reserved category candidates:

Per Majmudar, J.: Held, S.20(1) enables the Medical Council of India only to give guidance to the universities which have persuasive force:

S.20 readwith S.33 of the 1956 Act, empower Medical Council of India to lay down basic requirements of qualification and eligibility conditions and thereafter it is for the States under List III Entry 25 to control admission and lay down criteria for short-listing of the eligible candidates, as Parliament so far has not legislated, on this aspect of the matter:-

(6) Reservation of seats in super-speciality medical courses :- Medical College - Speciality and super-speciality courses - Special provisions for SC & ST- Cannot be made for super-speciality courses 

Provision for speciality courses should be minimum :-

At the level of super-specialization, no reservation of seats is permissible. for any class and admissions should be entirely on merit.

Wider interests of society and nation as a whole, cannot be ignored.

Hence, no provision for admission to super speciality courses is permissible.

Prohibited not only by Art. 15(4) but also by considerations under Art. 16(a) and Art.335:

(7) Constitution of India, Arts. 226,15(4) - U.P. Post-Graduate Medical Education (reservation for SCs. STs & OBCs) Act, 1997. S.1 -M.P. Medical & Dental Post-Graduate Entrance Examination Rules, 1997, R1 Post- graduate Medical Course Common Entrance examination Fixing of lower qualifying marks for SCS/STS-

Medical Council of India to decide Disparity between marks fixed for reserved and general candidates should not be big

(8) Power of State to control admission: Extent of State can not prescribe criteria which adversely affect standard of higher education laid down by Union of India Regulations framed by Medical Council are in exercise of powers under Entry 66 of List I and are binding;

State Government can not make Rules which impinge upon these Regulations:-

Admission criteria has a direct impact on standard of education:-

(9) reservations is a transitory Once backward class secure adequate-representation in services Reservation will not be required- Arts. 16(4), 14 & 335 But while considering the claim of backward classes for reservation, maintenance of efficiency of administration has also to be kept in mind :-

Protective discrimination in favour of SCs/STS: Policies and programmes of protective discrimination - To be designed and pursued in a manner to build an egalitarian non-discriminating society Interests of society as a whole cannot be ignored while testing reasonableness of programmes :-

BRIEF FACTS & ISSUE INVOLVED

The following issue arose for consideration before the present Constitution Bench:

"The question is whether apart from providing reservation for admission to the post-graduate courses in Engineering and Medicine for special category candidates seeking admission under the reserved category."

It involved reconsideration of the views expressed in, 2 or 3-Judges Bench judgments of the Supreme Court in Ajay Kumar Singh v. State of Bihar, Sadhna Devi (Dr.) v. State of U.P. and P.G. Institute of Medical Education & Research v. K.L. Narasimhan.

The above issue arose in the document of the developments in the states of U.P. and N.P. (discussed in detail in Paras 3 to 10 of the majority judgment) in respect of admission to Post-graduate degree/ diploma courses in medicine through the Postgraduate Medical Entrance Examination (PGMEE). The States progressively reduced the minimum qualifying marks for reserved category candidates appearing in PGMEE and the constitutionality of the GO, ordinance and Act concerned were impugned before the Supreme Court.

As a result the present Constitution Bench addressed itself to the issue whether for admission to the postgraduate medical courses, it is permissible to prescribe a lower minimum percentage of qualifying marks for the reserved category candidates as compared to the general category candidates. Specifically, the Bench did not go into the issue whether reservations are permissible at the postgraduate level in Medicine. This issue was not debated before it and no opinion has been expressed on it.

So on the issue whether any special provision in the form of lower qualifying marks in PGMEE can be prescribed for the reserved category. the Supreme Court held.

RATIO/REASONING

Per majority

In view of Entry 25 of List III of the Seventh Schedule to the Constitution, both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education, because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, from 1977. education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.

It would not be correct to say that the norms for admission have no connection with the standards of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List 1. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of educational in the institute of higher education. Standards of education in an institution or college depend on various factors.

While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. Further, education involves a continuous Interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been considered essential at the levels of higher university education, particularly when the training to be imparted is a highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their postgraduate courses.

Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List 1. At times. in some of the judgments, the words "eligibility" and "qualification" have been used interchangeably, and in some cases a distinction has been made between the two words "eligibility" connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while 'qualifications' connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central statute or under it. have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down. Thus once the minimum standards are laid down by the authority having the power to do so, any further qualifications laid down by the State which will lead to the selection of better students cannot be challenged on the ground that it is contrary to what has been laid down by the authority concerned. But the action of the State is valid because it does not adversely impinge on the standards prescribed by the appropriate authority.

Lavu Narendranath decision does not lay down that it is permissible not to have minimum qualifying marks in the entrance test prescribed by the State; nor does it lay down that every test prescribed by the State must necessarily be viewed as only for the screening of candidates. On the facts before it, the Court viewed the test as only a screening test for proper selection from amongst a large number of candidates. PGMEE is not just a screening test. Candidates who have qualified from different universities and in courses which are not necessarily identical, have to be assessed on the basis of their relative merit for the purpose of admission to a postgraduate course. It is for proper assessment of the relative merit of candidates who have taken different examinations from different universities in the State that a uniform entrance test is prescribed. Such a test necessarily partakes of the character of an eligibility test as also a screening test. In such a situation, minimum qualifying marks are necessary. It is not possible to agree with the proposition that prescribing no minimum qualifying marks for admission for the Scheduled Castes and the Scheduled Tribes would not have an impact on the standard of education in the medical colleges.

The final pass marks in an examination indicate that the candidate possesses the minimum requisite knowledge for passing the examination. A pass mark is not a guarantee of excellence. There is a great deal of difference between a person who qualifies with the minimum passing marks and a person who qualifies with high marks. If excellence is to be promoted at postgraduate levels, the candidates qualifying should be able to secure good marks while qualifying. It may be that if the final examination standard itself is high, even a candidate with pass marks would have a reasonable standard. Basically, there is no single, test for determining standards. It is the result of a sum total of all the inputs calibre of students, calibre of teachers, teaching facilities, hospital facilities, standard of examinations etc. that will guarantee proper standards at the stage of exit.

Per Majmudar, J.

It is not possible to accept the majority view that fixing minimum qualifying marks for passing the entrance test for admission to postgraduate courses is concerned with the standard of postgraduate medical education.

On a conjoint reading of Entry 66 of List I and Entry 25 of List III, it has to be held that so long as Parliament does not occupy the field earmarked for it under Entry 66 of List I or for that matter by invoking its concurrent powers as per Entry 25 in the Concurrent List, the question of admission of students to any medical course would not remain outside the domain of the State Legislature. It is not in dispute that up till now Parliament, by any legislative exercise either by separate legislation or by amending the Indian Medical Council Act, 1956 has not legislated about the controlling of admissions of students to higher medical education courses in the country. Therefore, the only question remains whether the Indian Medical Council Act enacted as per Entry 66 of List 1 covers this aspect. If it covers the topic then obviously by the express language of Entry 25 of List III, the said topic would get excluded from the legislative field available to the State Legislature even under Entry 25 of the Concurrent List. Entry 66 of List I shows that the legislation which can be covered by this entry has to deal basically with "coordination and determination of standards in institutions for higher education". Meaning thereby, the standards of education at the institutions of higher education where students are taking education after admission are to be monitored by such a legislation or in other words after their enrolment for studying at such institutions for higher education such students have to undertake the prescribed course of education evolved with a view to having uniform and well-laid-down standards of higher medical education. "Standards in the Institutions" have been prefixed by two words, namely, "coordination and

determination of such standards as per Entry 66 of List 1. So far as "coordination" is concerned, it is a topic dealing with provision of uniform standards of education in different institutions so that there may not be any hiatus or dissimilarity regarding imparting of education by these institutions to the students taking up identical courses of study for higher medical education in these institutions. That necessarily has a nexus with the regulations of standards of education to be imparted to already admitted students to the courses concerned of higher education. But so far as the phrase "determination of standards in institutions for higher education" is concerned, it necessarily has to take in its sweep the requirements of having a proper curriculum of studies and the requisite intensity of practical training to be imparted to students attaining such courses. But in order to maintain the fixed standard of such higher medical education in the institutions, the basic qualification or eligibility for admission of students for being imparted such education also would assume importance. Thus, the phrase "determination of standards in institutions for higher education" would also take in its sweep the basic qualifications or eligibility criteria for admitting students to such courses of education. It can, therefore, be held that the Indian Medical Council Act. 1956 enacted under Entry 66 of List I could legitimately authorise the Medical Council of India which is the apex technical body in the field of medical education and which is enjoined to provide appropriately qualified medical practitioners for serving the suffering humanity to prescribe basic standards of eligibility and qualification for medical graduates who aspire to join postgraduate courses for obtaining higher medical degrees by studying in the institutions imparting such education. The phrase "determination of standards in institutions" does not necessarily mean controlling standards of education only after the stage of entry of students in these institutions and necessarily not prior to the entry point.

Having provided for the queue of basically eligible qualified graduate medical students for admission to postgraduate medical courses for a given academic year, the role of the Medical Council of India would end at that stage. Beyond this stage the field is covered by Entry 25 of List III dealing with education which may also cover the question of controlling admissions and shortlisting of the eligible candidates standing in the queue for being admitted to a given course of study in institutions depending upon the limited number of seats available in a given discipline of study, the number of eligible claimants for it and also would cover the further question whether any seats should be reserved for SC, ST and OBCs as permissible to the State authorities under Article 15(4) of the Constitution of India. So far as these questions are concerned, it is no doubt true that Entry 25 of the Concurrent List read with Article 15(4) of the Constitution of India may simultaneously authorise both Parliament, as well as the State Legislatures to make necessary provisions in that behalf. But so long as the Union Parliament does not exercise its legislative powers under Entry 25 of List III covering the topic of shortlisting of eligible candidates for admission to courses of postgraduate medical education, the field remains wide open for the State authorities to pass suitable legislations or executive orders in this connection.

For every academic year, there will be a limited number of seats in postgraduate medical courses vis-a-vis a larger number of eligible candidates as per guidelines laid down by the Medical Council of India. Shortlisting of such candidates, therefore, has to be resorted to. This exercise will depend upon various imponderables like:

(i) limited number of seats for admission in a given course vis-a-vis larger number of eligible candidates seeking admissions and the question of fixation of their inter se merits so as to lay down rational criteria for selecting better candidates as compared to candidates with lesser degree of competence for entry in such courses;

(ii) whether at a given point of time there are adequate chances and scope for SC, ST and OBC candidates who can equally be eligible for pursuing of such courses but who on account of their social or economic backwardness may lag behind in competition with other general category candidates who are equally eligible for staking their claims for such limited number of seats for higher educational studies:

(iii) availability of limited infrastructural facilities for training in institutions for higher medical education in the State or in the colleges concerned.

All these exigencies of situation may require the State authorities. either legislatively or by exercise of executive powers, to adopt rational standards or methods for shortlisting eligible candidates for being admitted to such medical courses from year to year also keeping in view the requirement of Article 15(4) of the Constitution of India.

While dealing with Entry 25 of List III it has also to be kept in view that the word "education" is of wide import. It would necessarily have in its fold (0) the taught, (ii) the teacher, (iii) the text, and also (iv) training as practical training is required to be imparted to students pursuing the course of postgraduate medical education. Who is to be the taught is determined by the Medical Council of India by prescribing the basic qualifications for admission of the students. Adequate number of teachers keeping in view teacher-taught ratio is also relevant. Prescribing appropriate courses for study te. curricula is also covered by the term "education". Training to be imparted to the students has a direct nexus with infrastructural facilities like the number of beds of patients to be attended to by postgraduate medical students, providing appropriate infrastructure for surgical training etc. also would form part of education. The role of the Medical Council of India is exclusive in the field of laying down of basic qualifications of the taught and also the requirement of qualified teachers, their numbers and qualifications, prescribing the text and the requisite training to be imparted to students undertaking postgraduate medical courses. All these provisions quite clearly fall within the domain of the Medical Council of India's jurisdiction. However, the only field left open by Parliament while enacting the Indian Medical Council Act, 1956 under Entry 66 of List I of Schedule VII is the solitary exercise of shortlisting of the eligible taught for being admitted to such courses. That field can validly be operated upon by the State authorities so long as Parliament, in its wisdom, does not step in to block even that solitary field otherwise remaining open for State authorities to function in that limited sphere. Infrastructure facilities, therefore, for giving such practical training to the taught also would be an important part of medical education. It is of course true that not only the eligibility of students for admission to medical courses but also the quality of students seeking to get medical education especially postgraduate medical education with a view to turning out efficient medical practitioners for serving the suffering humanity would all be covered by the term "education". So far as the quality of admitting students to the courses of higher medical education te. postgraduate medical courses is concerned, the admission of students may get sub- divided into two parts: 

(i) basic eligibility or qualification for being permitted to enter the arena of contest for occupying the limited number of seats available for pursuing such education; and

(ii) the quality of such eligible candidates for being admitted to such courses.

The first part of the exercise for admission can be covered by the sweep of the parliamentary legislation i.e. the Indian Medical Council Act. 1956 enabling the delegate of Parliament namely, the Medical Council of India, to lay down proper criteria for that purpose as per regulations framed by it under Section 33 of the Indian Medical Council Act. This aspect is clearly covered by Entry 66 of List I but so far as the second part of admissions of eligible students is concerned, it clearly remains in the domain of Entry 25 of List III and it has nothing to do with Entry 66 of List I and as this field is wide open till Parliament covers it by any legislation under Entry 25 of List III, the State can certainly issue executive orders and instructions or even pass appropriate legislations for controlling and shortlisting the admissions of eligible candidates to such higher postgraduate medical courses in their institutions or other institutions imparting such medical education in the States concerned.

Per majority

There may be several universities in a State which conduct MBBS courses. The courses of study may not be uniform. The quality of teaching may not be uniform. The standard of assessment at the MBBS Examination also may not be uniform in the different universities. A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities.

In the interest of selecting suitable candidates for specialised education, it is necessary that the common entrance examination is of a certain standard and qualifying marks are prescribed for passing that examination. This alone will balance the competing equities of having competent students for specialised education and the need to provide for some room for the backward even at the stage of specialised postgraduate education which is one step below the superspecialities. A common entrance examination envisaged under the regulations framed by the Medical Council of India for postgraduate medical education requires fixing of minimum qualifying marks for passing the examination since it is not a mere screening test. Normally passing marks for any examination have to be uniform for all categories of candidates.

It is, however, basically for an expert body like the Medical Council of India to determine whether in the common entrance examination viz. PGMEE, lower qualifying marks can be prescribed for the reserved category of candidates as against the general category of candidates since it affects the standards of postgraduate medical education.

The element of public interest in having the most meritorious students is also present at the stage of postgraduate education in medical specialities like superspecialities. Those who have specialised medical knowledge in their chosen branch are able to treat better and more effectively, patients who are sent to them for expert diagnosis and treatment in their specialised field. For a student who enrols for such speciality courses, an ability to assimilate and acquire special knowledge is required. Not everyone has this ability. Of course intelligence and abilities do not know any frontiers of caste or class or race or sex. They can be found anywhere, but not in everyone. Therefore, selection of the right calibre of students is essential in the public interest at the level of specialised postgraduate education. In view of this supervening public interest which has to be balanced against the social equity of providing some opportunities to the backward who are not able to qualify on the basis of marks obtained by them for postgraduate learning, it is also for an expert body such as the Medical Council of India, to lay down the extent of reservations, if any, and the lowering of qualifying, marks, if any. consistent with the broader public interest in having the most competent people for specialised training, and the competing public interest in securing social justice and equality. The decision may perhaps depend upon the expert body's assessment of the potential of the reserved category candidates at a certain level of minimum qualifying marks and whether those who secure admission on the basis of such marks to postgraduate courses can be expected to be trained in two or three years to come up to the standards expected of those with postgraduate qualifications.

However, the special provisions for SC/ST candidates whether reservations or lower qualifying marks at the speciality level have to be minimal. There cannot, however, be a big disparity in the qualifying marks for the reserved category of candidates and the general category of candidates at the postgraduate level. The difference in the qualifying marks should be at least the same as for admission to the undergraduate medical courses, if not less. This level is only one step below the apex level of medical training and education where no reservations are permissible and selections are entirely on merit. At only one step below this level the dispariry in qualifying marks, if the expert body permits it, must be minimal. It must be kept at a level where it is possible for the reserved category candidates to come up to a certain level of excellence when they qualify in the speciality of their choice. It is in the public interest that they have this level of excellence. Unless there is a proper control at the stage of admission on the different categories of the students who are admitted and unless the differences are kept to a minimum, such differences will not disappear in the course of time if the course of study is a specialised course such as a postgraduate course.

In the present case, the disparity of qualifying marks being 20% for the reserved category and 45% lor the general category is too great a disparity to sustain the public interest at the level of postgraduate medical training and education. Even for the MBBS course, the difference in the qualifying marks between the reserved category and the general category is smaller, 35% for the, reserved category and 45% for the general category. The marks cannot be lowered further for admission to the postgraduate medical courses especially when at the superspeciality level it is the unanimous view of all the judgments of the Supreme Court that there should be no reservations. This would also imply that there can be no lowering of minimum qualifying marks for any category of candidates at the level of admission to the superspeciality courses. There is no logic or rationale for the difference to be larger at the postgraduate level. It is not permissible under Article 15(4), the same being unreasonable at the postgraduate level and contrary to the public interest.

The speciality and superspeciality courses in Medicine also entail on-hand experience of treating or operating on patients in the attached teaching hospitals. Those undergoing these programmes are expected to occupy posts in the teaching hospitals or discharge duties attached to such posts. The elements of Article 335, "therefore, colour the selection of candidates for these courses and the rules framed for this purpose.

It is not possible to accept the view that if the minimum qualifying marks are raised in the case of the reserved category candidates, they will not be able to fill all the seats which are reserved for them. The purpose of higher medical education is not to fill the seals which are available by lowering standards; nor is the purpose of reservation at the stage of postgraduate medical education merely to fill the seats with the reserved category candidates. The purpose of reservation, if permissible at this level, is to ensure that the reserved category candidates having the requisite training and calibre to benefit from postgraduate medical education and rise to the standards which are expected of persons possessing postgraduate medical qualification are not denied this opportunity by competing with the general category candidates. The general category candidates do not have any social disabilities which prevent them from giving their best. The: special opportunity which is provided by reservation cannot, however, be made available to those who are substantially below the levels prescribed for the general category candidates. It will not be possible for such candidates to fully benefit from the very limited and specialised postgraduate training opportunities which are designed to produce high calibre well-trained professionals for the benefit of the public. It is also necessary in the public interest to ensure that the candidates at the postgraduate level have not just passed the examination, but they have profited from their studies in a manner which makes them capable of making their own contribution, that they are capable of diagnosing difficult medical conditions with a certain degree of expertise, and are capable of rendering to the ill, specialised services of a certain acceptable standard expected of doctors with. specialised training.

In Post Graduate Institute of Medical Education & Research v. K.L. Narasimhan there are observations to the effect that the reservation of seats in the postgraduate and doctoral courses in Medicine would not lead to a loss of efficiency and would be permissible under Article 15(4). There are also observations to the effect that since all appear for the same final examination, there is no downgrading of excellence. These observations cannot be accepted.

In the premises, the impugned Uttar Pradesh Post Graduate Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1997 and GO dated 7-6-1997 of the State of Madhya Pradesh are set aside. However, students who have already taken admission and are pursuing courses of postgraduate medical study under the impugned Act/GO will not be affected. This judgment will have prospective application. Further, pending consideration of this question by the Medical Council of India, the two States of U.P., and M.P. may follow the norms laid down by the Medical Council of India for lowering of marks for admission to the undergraduate MBBS medical courses at the postgraduate level also as a temporary measure until the norms are laid down. This, however, will not be treated as the Supreme Court in the present case having held that such lowering of marks will not lead to a lowering of standards at the postgraduate level of medical education. Standards cannot be lowered at this level in public interest. This is a matter to be decided by an expert body such as the Medical Council of India assisted by its Postgraduate Medical Education Committee in accordance with law.

Per Majmudar, J. (partly dissenting)

The common entrance examination envisaged under the regulations framed by the Medical Council of India for postgraduate medical education does not curtail the power of the State authorities, legislative as well as executive, from fixing suitable minimum qualifying marks differently for the general category candidates and for SCs/STs and OBC candidates.

Once seats in postgraduate medical courses are reserved for SC, ST and OBC candidates as per Article 15(4) of the Constitution the question as to how admission to a limited number of general seats and reserved seats is to be regulated will remain in the domain of the State authorities running these institutions. They can, therefore, legitimately resort to the procedure of shortlisting of otherwise eligible candidates. While undertaking this exercise of shortlisting, the State authorities have to see how best in a given academic year the reserved seats and general category seats can be filled in by available and eligible candidates. The question is while undertaking the task of shortlisting of available eligible candidates vis-a-vis the limited number of seats that may be available for being filled in a given academic year, uniform qualifying benchmarks for passing the entrance test should be prescribed for both the general category candidates as well as the reserved category candidates or there can be lesser benchmarks for the latter category of students. If due to non-availability of the reserved category candidates who could obtain minimum qualifying marks prescribed for all the examinees whether there can be any legitimate dilution of minimum qualifying marks for these reserved category of candidates and if so, to what extent is the moot question.

The guidelines laid down by the Medical Council of India though persuasive have to be kept in view while deciding as to whether the concession or facility to be given to such reserved category of candidates should remain within the permissible limits so as not to amount to arbitrary and unreasonable grant of concessions wiping put the concept of merit in its entirety. Consequently, it cannot be said that even though shortlisting of eligible candidates is permissible to the State authorities, while doing so, the State authorities can completely give a go-by to the concept of merit and can go to the extent of totally dispensing with the qualifying marks for SC, ST and OBC candidates and can shortlist them for being considered for admission to reserved categories of seats for them in postgraduate studies by reducing the qualifying marks to even zero.

I, therefore, agree that hence, in agreement with the majority view, it may be stated that there cannot be a wide disparity between the minimum qualifying marks for reserved category candidates and the minimum qualifying marks for general category candidates at this level. Furthermore, agreeing with the majority view, there cannot be dilution of minimum qualifying marks for such reserved category candidates up to almost a vanishing point. The dilution can be only up to a reasonable extent with a rock bottom, below which such dilution would not be permissible. The maximum dilution can be up to 50% of the minimum qualifying marks prescribed for the general category candidates. On that basis if 45% passing marks are prescribed for general category, permissible dilution can then go up to 22%% (50% of 45%). Any dilution below this Yock bottom would not be permissible under Article 15(4) of the Constitution of India.

When reservation of seats under Article 15(4) in postgraduate medical courses cannot exceed 50% as held by the Constitution Bench in M.R. Balaji case then on the same line of reasoning additional facilities to be given to such reserved category candidates for being admitted to the seats reserved for them in the postgraduate medical courses also should not exceed the permissible limit of 50% dilution from the general cut-off marks provided uniformly for the general category of candidates competing for admission to such limited number of seats at the postgraduate level. While dealing with the question of dilution of minimum passing marks for the reserved category of candidates appearing at the entrance tests for admission to postgraduate courses it has to be kept in view that the general category students form a separate class as compared to the reserved category candidates for whom seats are reserved under Article 15(4). Once that is kept in view, as a logical corollary, it must follow that to make such reservations effective appropriate dilution of the minimum cut-off marks for students belonging to the reserved category would become permissible subject to the rider that such dilution should not be so unreasonable as to go out of the beneficial protective umbrella of Article 15(4) as seen earlier. If that happens it would squarely get hit by Article 15(1) read with Article 14 of the Constitution of India. However, within such permissible limits such dilution for different reserved categories of candidates who may be given the benefit of sliding scales of reduced passing marks as required by the exigencies of situation would remain legal and valid.

However, in diluting the minimum qualifying marks for the reserved category of candidates who are otherwise eligible for being admitted to postgraduate courses on the seats reserved for them, Article 335 cannot get attracted. Only because a person who has passed the MBBS Examination and is made eligible for admission to postgraduate course and is paid a stipend during the course of his studies at the postgraduate level, he cannot be said to have been appointed to the post of a Registrar. It may be that he has to work as a trainee Registrar during the course of his study to obtain practical training but that is a part of the curriculum of studies and not because he is appointed to the post of the Registrar after undergoing selection process where under a person from the open market is recruited as a medical officer and whose recruitment as a medical officer would be subject to rules and regulations and would not terminate only because his training period is over. In fact such a full-fledged medical officer has no training period. He has if at all a probation period. In case of a trainee Registrar who has to work as such during the course of his studies as a postgraduate student on the other hand, his work as Registrar would be coterminous with his passing the postgraduate examination as MD or MS/ MDS as the case may be. He is also not liable to be transferred as a full- fledged Registrar, duly appointed as such, who is liable to be transferred due to exigencies of service. Thus, the working of such students during the course of study as Residents whether on full payment or on stipendiary payment would make no difference and they cannot be said to be holding any civil post in any hostel as full-fledged medical officers. Consequently. Art. 335 can not by itself by applied for regulating the admission of eligible reserved category students to postgraduate medical courses in the seats reserved for them under Art. 15(4).

Per majority

Under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of postgraduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed regulations which govern postgraduate medical education. These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List 1, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List 1.

Secondly, it is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the Concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List III will also be subject to any existing relevant provisions made in that connection by the Union Government subject, of course, to Article 254.

Under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education including postgraduate medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act. an overall vigilance by the Medical Council to prevent sub-standard entrance Qualifications for medical courses. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. The scheme of the Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council.

The regulations governing postgraduate medical education have not clearly spelt out whether there can or cannot be any reservations for Scheduled Castes. Scheduled Tribes and/or Backward Class candidates at the stage of postgraduate medical admissions. Whether such a reservation would impinge on the standards or not would depend upon the manner in which such reservation is made, and whether the minimum qualifying marks for the reserved categories are properly fixed or not. It is for the Medical Council of India to lay down proper norms in this area and to prescribe whether the minimum qualifying marks for the admission of students in the reserved category can be less than the minimum qualifying marks for the general category students at the postgraduate level: and if so, to what extent. Even if it is accepted that for the reserved category candidates also, their inter se merit is the criterion for selection, although for the reserved category of candidates lower minimum qualifying marks are prescribed, the merit which is envisaged under the Indian Medical Council Act or its regulations is, comparative merit for all categories of candidates. For admission to a postgraduate course in Medicine, the merit criterion cannot be so diluted by the State as to affect the standards of postgraduate medical education as prescribed under the regulations framed by the Indian Medical Council.

Per Majmudar, J.

Standards of postgraduate medical education as mentioned in sub- section (1) of Section 20 would include guidance regarding the minimum qualifications or eligibility criteria for such students for admission and after they are admitted having undergone the process of shortlisting at the hands of the State authorities or authorities running the institutions. how they are to be trained and educated in such courses, how practical training has to be given to them and what would be the course of study. the syllabi and the types of examination which they have to undertake before they can be said to have successfully completed postgraduate medical education in the States concerned. But having seen all these it has to be kept in view that all that sub-section (1) of Section 20 enables the Medical Council of India is to merely give guidance to the universities. The guideline laid down by the Medical Council are persuasive. What is stated to be guidance can never refer to the quality of a candidate who is otherwise eligible for admission. None of the remaining provisions up to Section 32 deal with the question of controlling of admission by process of shortlisting from amongst eligible and duly- qualified candidates seeking admission to postgraduate medical courses. The general power under Section 33 to make regulations has to be with reference to any of the statutory purposes indicated in any other provisions of the Act. As none of the provisions in the Act enables the Medical Council of India to regulate the admission of eligible candidates to the available seats for pursuing higher medical studies in institutions. the general power to make regulations cannot cover such a topic. No regulation framed under Section 33(fc) can cover the topic of shortlisting * of eligible candidates for admission. Section 33(1) deals with post- admission requirements of eligible students in the medical courses concerned. That has nothing to do with the pre-entry stage of such students eligible for admission. Consequently, any regulation framed by the Medical Council of India under Section 33 which seeks to give any guidelines in connection with the method of admission of such eligible students to medical courses would remain in the realm of a mere advice or guidance and can therefore, not have any binding force qua the admitting authorities. It, therefore, must be held that once the Medical Council of India has laid down the basic requirements of qualifications or the eligibility criteria for a student who has passed his MBBS Examination for being admitted to postgraduate courses for higher medical education in institutions and once these basic minimum requirements are complied with by eligible students seeking such admissions the role of the Medical Council of India comes to an end. The question of shortlisting falls squarely in the domain of the State authorities as per Entry 25 of List III till Parliament steps in to cover this field. 

Per majority

As a result of combined operation of Articles 15(3) and 15(4) an array of programmes of compensatory or protective discrimination have been pursued by the various States and the Union Government. Since every such policy makes a departure from the equality norm, though in a permissible manner, for the benefit of the backward, it has to be designed and worked in a manner conducive to the ultimate building up of an egalitarian non-discriminating society. That is its final constitutional justification. Therefore, programmes and policies of compensatory discrimination under Article 15(4) have to be designed and pursued to achieve this ultimate national interest. At the same time, the programmes and policies cannot be unreasonable or arbitrary, nor can they be executed in a manner which undermines other vital public interests or the general good of all. All public policies, therefore, in this area have to be tested on the anvil of reasonableness and ultimate public good. In the case of Article 16(4) the Constitution-makers explicitly spelt out in Article 335 one such public good which cannot be sacrificed. namely, the necessity of maintaining efficiency in administration. Consideration of national interest and the interests of the community or society as a whole cannot be ignored in determining the reasonableness of a special provision under Article 15(4). However, the Supreme Court in the present case is not directly concerned with the question of reservations at the postgraduate level in Medicine. That issue had not been debated before the Supreme Court and therefore, no opinion is expressed on it.

Per Majmudar, J.

I agree with Conclusion No. 1 (at para 62) of the majority judgment that in the present case the Supreme Court has not examined the question whether reservations are permissible at the postgraduate level of medical education.

In disposing of Review Petitions Nos. 2371-72 of 1997 in CAs Nos. 3176, 77 of 1997 the Supreme Court observed that normally the power to review is used by us sparingly to correct errors apparent on the face of the record. In the judgment sought to be reviewed, however, there are observations which are so widely worded that they may create mischief or national detriment. In Post Graduate Institute of Medical Education & Research v. K.L. Narasimhan it was, inter alia, held that there could be reservation of seats for the Scheduled Castes and Scheduled Tribes at postgraduate levels or doctoral levels in Medicine and that such reservations would not lead to a loss of efficiency and are permissible under Article 15(4). So to clarify the position regarding admissions to the superspecialities in Medicine, the Supreme Court held:

Per majority (Majmudar, J. concurring)

While the object of Article 15(4) is to advance the equality principle by providing for protective discrimination in favour of the weaker sections so that they may become stronger and be able to compete equally with others more fortunate, one cannot also ignore the wider interests of society while devising such special provisions. Undoubtedly. protective discrimination in favour of the backward, including Scheduled Castes and Scheduled Tribes, is as much in the interest of society as the protected groups. At the same time, there may be other national interests, such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests. Therefore, at the level of superspecialisation there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of a superspeciality, something more than a mere professional competence as a doctor is required. A superspecialist acquires expert knowledge in his speciality and is expected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is for this reason that it would be detrimental to the national interest to have reservations at this stage. Opportunities for such training are few and it is in the national interest that these are made available to those who can profit from them the most viz. the best brains in the country, irrespective of the class to which they belong.

To conclude, at the superspeciality level it is the unanimous view of all the judgments of the Supreme Court that there should be no reservations. This would also imply that there can be no lowering of minimum qualifying marks for any category of candidates at the level of admission to the superspecialities courses. So at the level of admission to the superspeciality courses, no special provisions are permissible, they being contrary to the national interest. Merit alone can be the basis of selection.

Per majority

Regulation 27 provides for 20% of the seats in every course of study in the Institute to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes or other categories of persons in accordance with the general orders issued by the Central Government from time to time. Regulation 27, however, cannot have any application at the highest level of superspecialities as this would defeat the very object of imparting the best possible training to select meritorious candidates who can contribute to the advancement of knowledge in the fields of medical research and its applications. Since no relaxation is permissible at the highest levels in the medical institutions, the reservations made for the Scheduled Caste and the Scheduled Tribe candidates for admission to DM and MGH courses which are superspeciality courses, is not consistent with the constitutional mandate under Articles 15(4) and 16(4). Regulation 27 would not therefore apply at the level of admissions to DM and MCH courses.

Per majority

The constitutional protection of equality before the law under Article 14 is one of the basic tenets of the Constitution. It is a cardinal value which will govern our policies and actions, particularly policies for employment and education. That is why Article 16(4) permits reservation of appointments or posts in favour of any backward class which is not adequately represented in the services under the State. Reservation is linked with adequate representation in the services. Reservation is thus a dynamic and flexible concept. The departure from the principle of equality of opportunity has to be constantly watched. So long as the backward group is not adequately represented in the services under the State, reservations should be made. Clearly, reservations have been considered as a transitory measure that will enable the backward to enter and be adequately represented in the State services against the backdrop of prejudice and social discrimination. But finally, as the social backdrop changes and a change in the social backdrop is one of the constitutional inperatives, as the backward are able to secure adequate representation in the services, the reservations will not be required. Art. 335 enters a further caveat. While considering the claims of scheuled castes and scheduled tribes for appointments, the maintenance of efficiency of administration shall be kept in sight.

CONCLUSIONS

Per Sujata v. Manohar, J. (for Anand, C.J., herself, Venkataswami & Khare, JJ.): We therefore, hold that the judgment of this Court in Post-Graduate

Institute of Medical Education & Research v. K.L. Narasimhan (1997(6) SCC cannot be read as holding that any type of relaxation is permissible at the superspeciality level. The review petitions are disposed of accordingly.

Per S.B. Majmudar, J. (partly dissenting): Leave granted.

In the light of the aforesaid discussion, the following conclusions emerge:

(1) It is permissible to the State authorities which are running and/or controlling the medical institutions in the States concerned to short- list the eligible and qualified MBBS doctors for being considered for admission to Post-graduate medical courses in these institutions. For the purpose of such shortlisting full play is available to the State authorities to exercise legislative or executive power as the field is not occupied till-date by any legislation of Parliament on this aspect in exercise of its legislation powers under entry 25 of List III of the Constitution and this topic is also not covered by any legislation under Entry 66 of List I of the Constitution.

(2) The Indian Medical Council Act and the regulations framed there- under do not cover the question of shortlisting of admission of eligible and duly qualified MBBS doctors who seek admission to different medical institutions imparting Post Graduate Education run or controlled by the States concerned.

(3) The regulations and guidelines given by the Medical Council of India in this connection, though persuasive and not having any binding force, cannot be totally ignored by the State authorities but must be broadly kept in view while undertaking the exercise of shortlisting of eligible candidates for being admitted to postgraduate medical courses.

(4) While shortlisting candidates having basic qualifications of MBBS for being considered for admission to a limited number of vacancies in postgraduate courses available at the medical institutions in the States, it is permissible for the State authorities to have common entrance tests and to prescribe minimum qualifying marks for passing such tests to enable the examinees who pass such test to be called for counselling. That would be in addition to the basic qualification by way of MBBS Degree. The performance of the candidate concerned during the time he or she undertook the study at MBBS level for ultimately getting the MBBS Degree also would be a relevant consideration for the State authorities to be kept in view.

(5) It is equally permissible for the State authorities while undertaking the aforesaid exercise of shortlisting to fix 50% minimum qualifying marks at the entrance test for the general category of candidates and to dilute and prescribe lesser percentage of passing marks for the reserved category of candidates as the exigencies of situation may require in a given year but in no case the minimum qualifying marks us reduced for the reserved category of candidates can go below 25% of passing marks for such reserved category of candidates. In other words, a play is available to the State authorities to prescribe different minimum passing marks for SC/ST and OBC eligible candidates between 50% and 25% as the prevailing situation at a given point of time may require. In such categories for SC, ST and OBC candidates different diluted passing marks can be prescribed. but this exercise has to be within the permissible limits of less than 50% and up to minimum 25% passing marks for each of such reserved categories. No eligible candidate belonging to the reserved category who does nor obtain minimum per cent of passing marks as diluted for such category of candidates by the State authorities can be considered to be eligible for undertaking postgraduate medical courses in a given year for which he has offered his candidature and if any seat reserved for such categories of candidates remain unfilled due to non-availability of such eligible reserved category candidates to fill up such seat, then the said seat would go to general category candidates and will be available in the order of merit in the light of marks obtained by such wait-listed general category candidates having obtained the requisite passing marks who otherwise could not get admitted due to non-availability of general category seats earlier. The ratio of various decisions of this Court considered hereinabove will have to be implemented in the light of the aforesaid conclusions to which I have reached. The aforesaid practice has to be followed and should hold the field from year to year so long as Parliament does not pass any legislation for regulating admission to Post-Graduate Medical courses either by separate legislation or by appropriately amending the Indian Medical Council Act by empowering the Medical Council of India to prescribe such regulations.

RESULT

The writ petitions and the civil appeals arising out of the Special Leave Petitions as well as the Review Petitions would stand disposed of accordingly in the aforesaid terms and the judgments rendered by the High Courts will stand modified and the impugned orders passed by the State authorities will also stand set aside accordingly. However, the present judgment will operate purely prospectively and will not affect the admissions already granted by the authorities concerned in the Postgraduate medical courses prior to the date of this judgment. In other words, the State authorities will have to comply with the directions contained in this judgment and put their house in order for regulating admissions to Post- graduate medical courses starting hereinafter in the medical institutions concerned.

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