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W.P.C.Nos.5858/2014, rt. conn.cases 19
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necessa ry' trt remember that from 7977, education,l
including, inter alia, medicat and universityl
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education, is now in the Concurrent l-ist so that thel
lJnion can legislate on admission criteria also. If itl
does so,
;the
State wilt not be abte to tegistate inl
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this field, except as provided in Article 254."
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16. lt iis further argued that there
't
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no
unreasonableness in the decision taken by the Governf',"na
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to reduce the eligibility marks for service candidates.
lfhe
said decision hras been taken after elaborate discussion{ unO
taking into consideration the requirement of speciulfir"O
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Doctors in the State. As far as the contention regafdinO
violation of Article 162 of the Constitution of lnOia,
lit
iis
argued that when a specific Statute is promulgated O{ tf'tu
State under Errtry 25 of List lll and it has received tlre a{sent
of the Presiclent of India under Artir:le 254(2)
"fl
the
Constitution, and when the
power to issue prorpu.t{rs is
made by virtucl of the power vested under the saiO Statt{te, it
is not open for the petitioners to contend thatl a^"
Government has no power. Invocation of Article 162
lrisels
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W.P.C.Nos.5 85 8/20 1,:i & cotur.cases 20
only if no such
power is availabte with the Governrnent,
17. Adv,Sri.Hood T,B, the learned counsel appe
for one of the impleading applicants who supports the S
relies upon
paragraphs
52 and 53 of the Sreevast
case
(supra)
in order to substantiate the legisl
competence of the State Government in issuing
prospectus, Pi'rragraphs 52 and 53 reads its under:
52, Mr S,,tlve, learned counsel appearing for the
Medical tlouncil of lndia has, the,refore, rightly
submittec.l that under the lndian Medical C'ouncil
Act of .1956 the lndian Medicerl Council is
errtpowrcd to prescribe, inter alia, standards of
postgraduate medical education. ln the exercise of
its
power:;
under Section 20 read with Section 33
the lndian Medical Council has framed regulations
which govern postgraduate medic:al education.
Ihese reQrulations, therefore, are binding and the
States caltnot, in the exercise of power under Entry
25 of List lll, make rules and regulations which are
in conflir.t with or adversely impinge upon the
regulations framed by the Medical C'ouncil of lndia
for postl,yraduate medical education, Sinc'e the
rlnrg
ate,
a's
tive
the
W.P.C.Nos.5 858/20 1.:[ & conn.cases 21
standards; laid down are in the ex:ercise of the
power
cc),nferred under Entry 66 of List l, the
exercise of that power is exclusivetly within the
domain o,l' the Union Government. Thr?
power
of the
States under Entry 25 of List lll is subject to Entry
66 of List l.
53, Secortdly, it is not the exclusive
pow,er
of the
State to l',rame rules and regulations pertaining to
educatior; since the subject is in the Cctncurrent
List. Therefore, any power exercisecl by t:he State
in the are,a of education under Entry 25 of List lll
will also be subject to any exis'ting relevant
provision.:.;
made in that connection by the Union
Governmc>nt subject, of corJrse, to Anlicle )?54,
18. Furtlrer reference is made to the
judgme
Sourav Chowrdhary v. Union of India
[(2003)
17 SCC
to contend thi;rt when a subordinate legi:slation is repe
the previous liiw does not survive and the entire legisl
fails. lt is al:;o contended that in so far as there i
regulation ffior.le by MCI prescribing
an eligibility criteri
candidates dn,:i th eligibility criteria has only been fixe
NBE which is not under any Statute, it is possible fo
461
tio n
O,O
fo,r
by
the
W.P.C.Nos.5858/20 l'l & conn.cases 22
Government
to fix the eligibility marks, lt is further a
that the
judgrn,ent
in Mohammed Riaz
(supra) is based
factual situati,on when MCI Regulationrs were in f
whereas aS rniatters stand now, the MCI Regulations
repealed by virtue of the
judgment
in CMC Velloor
(su
Learned coun:,;el also relied upon the
(lonstitution
B
judgment
of
lthe Supreme Court in Firm A.T.B. Me
Majid and Ccr,. v. State of Madras
[(7963)
Supp
(Z)
4351
tAlR
1963 SC 9281 in which
paraqraph 20 read
under:
"20. lt h;ts been urged for the resp'ondent that if
the impuqned Rule be held to be intralid, old Rule
76
gets revived and that the tax as.sessed on the
petitioner will be
good. We do not agree. Once the
old Rule has been substituted the new Rule, it
ceases tc.t svisy and it does not automatically
get
revived w'hen the new Rule is held to be invalid,"
Reference is ,elso made to the
judgment
in Zile Sin
State of Harvana,
tQ004)
B SCC l) wherein it is held
the
process o1' substitution consists of twcl steps: first, th
uerl
nie
[Cer,
and
ra)r.
ncn
tab
l?
AS
hv.
that
old
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W.P.C.Nos.5B58/201-t
& conn.cases 23 |
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rule is made ito
cease to exist and, ne)(t, the new rule is
brought into existence in its place.
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19. sri.-titus Mani, rearned counsel appearing for
lrvrcl,
in a few ca:;,es supports the stand of the
oetitionerf
by
contending tlrat when the amendmernt to the
f
ooo
Regulations has been declared to be illegal by the sunrpm,e
Court in CMC Velloor
case
(supra),
the previous
]OOO
Regulations
'orTrS
into force and therefore
ltat,:
Government
c,annot reduce the eligibility criteria for
lont:
category
of cerndidates
and a uniform mark is reouirel
for
general
category which includes persons
from servic{
a:;
well. Learned r:ounsel
relied upon
judgment
of the sunrtmer
court in
Joint
Action
committee
of Air t-ine
pilots,
n{sn.
of India v. DG of Civil Aviation,
[(2,01J) 5 SCC
IZS,|
wherein
it was held that "once
the old rule has ofen
substituted
by the new rule, it stands obliterated,
{.,u,
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ceases to exist and under no circumstance)
can it be reviled
in case the new rule is held t'o be invatid dnd struck dowlov
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W.P.C.Nos.s858/20 I'l & conn.cases
AA
z+
the Court, though the position
would be different in ca
statutory amendment by the legislature is; held to be ba
want of legi:.;lative competence, ln ttlat situation,
repealed statu,riory provisions would revive> automaticall
Learned coun:,;el also relied upon paragraphs 49 and
P,G.Sreevastava's case
(supra)
in order to substantiat
contentions regarding the legislative competence of
Central Government to enact laws with reference to
graduate
medical courses.
20. Havrng regard to the arguments raised by
learned counsel appearing for the petitioners
as well a
respondents, tlre following issues arise for consideration,
i) The effect of CMC Velloor case
(supra)
o
Regulations frarmed by MCl,
ii) Whel-her there is any legislation which
the field of prescribing
eligibility mar[.ls for PG
admission, enacted under Entry 66 of List 1
Constitution o1' India.
occ
Me
of
et)
for
the
1of
his
the
post
the
pies
icer I
the
the
the
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W.P.C.Nos.5858/201,1 & conn.cases 25 |
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iii) Legis;lative competence of the State Governferrt
to prescribe
eligibility marks for service candiOate{ as
against the rnarks prescribed for candidates coming ,fldu'r.
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general
categc;,ry.
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iv) Wherther Section 5(3) of the Act enaOtes
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the
Government to issue the prospectus rruith the imnu{neO
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clause at 4-4.'1..
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v) Whether the impugned clauser at 4-4.7.ut be
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saved under Article 162 of the Constitution of India irl the
light of existence of Secti on 25(vi) of the l(UHS Act.
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2I. For easy reference, I am referring t"
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the
documents as exhibited in W.P.C.No.5B5B of 2014
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22. Ext.P1 is the information bullletin for AIP4MEE
2014. This bulletin indicates that the examination
Ifor
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admission to 50% MD/MS/Diploma coLrrses seats
l',
Is
further indicated that the Government of lndia establiphed
NBE in 1975 with the object of improving quality
of mepicat
education. NEtE has been notified by Ministry of Heaftf{ anO
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W.P.C.Nos.5858/20 I
.,1
& conn.cases 26
Family Welfare, Government of India to c(lnduct compe
entrance exanrination on all lndia basis for admission t
India 50%
quolta.
lt further states that the examinatio
be
governed
by the rules and regulations specified b
Government of India, MoH and FW/Directorate Gen
Health Service:; and orders of Hon'ble Court.
23. No cloubt, as per Ext.Pl notification, a candi
concerned should acquire 50% marks in the compe
examination fclr a pass
and
qualification for allotment,
has a case tlrat Ext.P1 has the force of law and
legislation in telrms of Entry 66 of List 1 of the Constituti
lndia.
24. One of the contentions urgerl is that in
Velloor Case
r[supra),
the Supreme court has only decl
the 2010 ftsrgulations for post graduate
admissio
unconstitutional which prescribes a
rror'Yrmon
entr
examination NEET. One of the arguments is that th
2010 Regulations have been declared to be void,
tive
All
will
the
ra t,
ate
tive
one
S,3
nof
MC
red
AS
nce
ugh
000
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W.P.C.Nos.5858/201,1-& conn.cases 27 |
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Regulations as well as 2012 Regulations still survive. ThtuOh
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in
Joint
Action Committee of Air Linr: Pilots' Assrf . of
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India case
(:;upra)
it is held that in case a stat$torV
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amendment by the legislature is held to be bad for waft ot
legislative cornpetence, the repealed s[atutory provif ions
would revive erutomatically. The said statement of lavrf will
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not apply to srubordinate legislation and too when by vlrtue
of 2010 Regul;ations the previous provision was substit{rtecl.
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The position
of law is clear from the Constitution Bpnch
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judgment
in Firm A.T.B. Mehtab Majid and Co.
(s$Ora)
wherein it is held that once the old Rule has
f
""n
substituted with a new Rule, it ceases t,o exist and it poes
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not automatic;llly get
revived when the new Rule is nefd to
be invalid. Zile Singh
(supra)
also deals with a si{nilar
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situation and ilt is held that substitution o1f a
provision
repults
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in repeal of the earlier provision
and its replacement bt the
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new provision,
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W.P.C.Nos.5858/201
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& conn.cases 28 |
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25. Therefore, when tl,egulation 9 of 2010 Regutafions
is declared as; ultra vires the Constitution in CMC V.{loor
case
(supra),
clause 9 of 2000 Regulations will not sur[r'u.r.
20L2 Regulations only makes some changes to
for.o
Regulations and the same also will not :;urvive. fnere[fore,
as matters stand now, there is no regulation, ,rf
f
or
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statutory provilsion which enables the petitioners to corttend
that fixation of eligibility miarks for the P.G Medical En,r[n..
Examination i:=; covered by any legislation under Entry
{U
ot
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List 1 of the Constitution of lndia.
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26. When there is no such Statute or subordlnat.
legislation witlr reference t<l fixation of eligibility marf.r,l it i,
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not in dispute that by issuing the prospectus,
ftate
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Government had treated the examinatiorr conducted bVl ruAf
as the qualifying
examination for P.Ci/Diploma .orfrur.
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While so, a
prospectus
is i:;sued by the Government wfriclr,
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according to them, is in terms of Section 5(3) of the Sefvice
Quota
Act. The first issue to be considered is wheth",
{un""
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W.P.C.Nos.5858/20 I'l & conu.cases 29
issuing the prospectus
under Section 5(3) of the Act,
Government can fix an eligibility criteria different from
is prescribed by NBE. As far as
general open catego
concerned, Stiate Governmrent has adopted the eligi
marks as 50!/o. In respect of service candidates,
eligibility mark.s is reduced to 45o/o. lt is not in dispute
as held in P.G"Sreevastava's case
(supra)
if the field i
occupied by any Central legislation, the Government
bring in legislertion under Errtry 25 of List llll. lt is well se
that both the tJnion as well as the States have the pow
legislate on eclucation including medical education, su
of course to Entry 66 of List l, which deals with laying
standards in institutions for higher education or researc
scientific and technical institutions as also co-ordinati
such standards. lt is also held that State has the rig
control education including medical education so long a
field is not occupied by any Union legislation and
controlling education in the State, it cannot imping
the
hat
ility
the
Yis
that
not
can
tle d
rto
iect,
own
and
n clf
tto
the
hile
on
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W.P.C.Nos.5858/201-[ & conn.cases 30 |
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standards in institutions for higher education as iF is
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exclusively within the pur\/iew of the Llnion Governrfent,
While prescribing the criteria for admissiorr to the institu{ions
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for higher education includirrg higher meclical educationl the
State cannot adversely affer:t the standarrJs laid down O{ tf.r"
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Union of lndia under Entry i6 of List l, Union can legislaf on
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admission criteria also and in that event, the State will not
be able to legislate in this field, except as;
provided in n{ticf e
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254. The vires of the Service
Quota
Act is not in disputel and
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it is a legislertion which has received the assent ofl the
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President of lndia under Article 254(2) of the Constitt{tion.
The contentiorr of the
petitioners is that Clause 5(3) Ooe{ not
enable the Government to reduce the clualification crilteria
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contrary to what is stated for general/open categoriesl and
they seek support of the
judgment
of this .or{ in
Mohammed Riaz
(supra).
Section 5 of Service
Quot{
O,.a
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reads as under:
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"5,
Procedure for selection:-
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(1)
The Govern,ment may set apart seats
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W.P.C.Nos.5858/20 l.l & conn.cases
al
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not exceeding forty
percent of the total seats
available to State
quota in an acadetmic
year, for
selection of Medical O'fficers under service
quota
considering their service under the' Government
for admission to Post Graduate Medical Courses in
the Medir:al Colleges ctf the State in such manner
as may be prescribed,
(2)
The academic
qualification for
admission to the Posl: Graduate Ccturse shall be
M.B.B.S cttegree with minimum fifty
trtercent
marks
and the ctther qualifications shall bet such as may
be
prescribed.
(3)
The details of eligibility l'or admission,
the duration of courses, allotment, f'ee to be
paid,
reservations of seats ,1t1d such othetr details shall
be
published every
ye'ar in the pros;pectus before
the comrnencement ol' admission,
(4)T-,he
Postgra'duate Cour:;e Selection
Committee sha ll finalise the selection list strictly
based on the seniority in service c>f the Medical
Officers and following such other c,riteria as may
be
prescribed.
(5)
The selection list finalised under sub-
section
(4)
shall bt=
published by the Post
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WP.C.Nos.5858/20lrf & conn.cases 32 |
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Graduate Course Selection Committee for ,n"
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information of the applicants,"
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27. lt is not in dispute that Sections 5(1) unO
l5(21)
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clearly indicates that such ar
procedure has to be adopttd as
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prescribed
by the Rules. 1-hough Rules have been frafned,
the same does; not provide for a
provision which enaOfef tfre
Government trc reduce the eligibility criteria, Section
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ttrl
however indicates that the details of eligiibility for admi{sion
among other matters shall be
publishecl in the prosp{.tu,
before commencement of admission. ln fact, Section
Itttl
and 5(2) by it:;elf cannot br: read as foreclosing the riOf'rt of
the Government to invoke llection 5(3) tcl mention detaf f, of
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eligibility for admission, which apparently includesl the
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eligibility in the examination, which is conducted in ad!ition
to the qualifications presr:ribed under the Rules fr{meO
pursuant to sections 5(1) arrd 5(2). A perusal of Exts.nl anO
P3 indicates that the Gov,ernment had only aOoOtel the
examination conducted by NBE for the
purpose
of allotfnent
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of seats in the State as welll, since the Government diq not
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W.P.C.Nos.5858/201,1 & conn.cases 33 |
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conduct any separate examination, True that, NBE
lnrd
fixed 50% mirrimum marks for the eligibility examin{tion
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which is adopted by the Government for
general
cateporV
candidates as well. But it was clearly irrdicated in fx{s.fZ
and P3 that tl're admission procedure will be in u..orOf n..
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with the
prospectus
issued by the Government.
{hen
specific power is conferred on the Government in ternf's of
Section 5(3) to mention elirEibility details in the prorp.f,r,,,
as far as service quota candidates are concerned, it calnnot
be contended that in the absence of framing r.rf.f as
provided
under sections 5(1) and 5(2), the Govern*"n{ nu,
no right to fix a differerrt eligibility criteria for sefuice
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candidates. ln Mohammed Riaz
(suprer),
this court,
Ivhile
considering the vires of serction 5(4) of the Service
{rotu
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Act, held as under:
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"ln astafe where there are more universities than
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one, the appropriate provision of Regulation 9(2)
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would apply. The principles of law ernanatinO from
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the above include that the
prescription as to the
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W.P.C.Nos.5858/20 l,{ & conn.cases 34
requirement of an entrance eXoftlittotion with a
minimum eligibility bench mark to Lte acquired in
that entrance test for
postgraduate
medical
education' is within the field covered by Entry 66 in
List I and the competence of the State Legislature
to make
"t
law with ref'erence to Entry 25 in List lll
would not enable it to make any such law
encroaching on the field occupied tty Entry 66 in
List l. The, M.C.l. Regul,ations framed under S.3i of
the IMC A,ct is insulated from any contradiction by
any State, legislation.'Therefore, the State cannot
make a law doing away with the requirement, for
in-service candidates, to partici,aate in the
common entrance test for a,dmission to
postgraduate
medical courses and obtaining the
minimum eligibility recyuirement
pre:;cribed
by the
M,C.l. in the Regulations.
The concl'usion is that the
provision in 5.5(4) of the
State Act that the se/ect list of in-service medical
officers for postgradu,ate
medical education shall
be strictl.y on the bas,is of seniorityr it subject to
the requirement that :;uch selection can be made
only fron't among those in-service ntedical officers
who havc" undergone the common entrance test
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W.P.C.Nos. 58581201.1 &conn.cases 35 |
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for postttraduate medicat educatirtn and nurrl
obtained the minimurn eligibility bench mark ,,
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that test t'n terms of the M.C,l. Regulittions."
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The above
pro,position
of l.rw, of course, applies onfv ufnf'.r"n
clause
g(2\
of' 2000 Regulations was in force. The
Or{r"n,
situation is that MCI Regulations are not in force
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unO
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therefore the :;aid
judgment
has no application to the
facts
of this case. :Same is the situation witlr reference ,l the
judgment
of the Supreme Crrurt in Harish Verma
trrOr{1.
28. Therefore, I am of the view that it was well url,an'n
the power
of the Governrinent to prescribe an eligif"'au
criteria for service candidates under Secl:ion 5(3) of tfr{ nct
by prescribing the same in the prospectus. When ,r[n a
power
is available and it is invoked by tl're Governmenaf an"
question of inv'oking power under Article 162 does not
{rir.-.
Under these cirrcumstances, I do not think that Clause
t
O t
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suffers from any infirmityr as far as the
power
ofl the
Government is concerned
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29. The next
question
to be considr:red is whethef the
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W.P.C.Nos.5858/201.1 & conn.cases 36 |
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impugned pro,vision in thre
prospectus is, in any
l*uU
unreasonable. According to the
petitioner, the reason stpteO
for incorporatirrg such a
provision is
"optimum
utilizati{n of
service
quota s,eats and to tide over the clearth of ,Ou.i{lists
in Health Senvices Department." This, according aol ,nu
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petitioners, is arbitrary and unreasonable in so far as thtre is
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no dearth of specialists in l-{ealth Service Department,
llt
it;,
inter alia, contended that out of the limited seats availanfe
for Post Gradurate/Diploma course in the State, the nr,[n0.,r.
of candidates are more than double, if rerference is *u{e to
the previous \/ears'
data, The respondents, howeverl ,efV
upon the requirement of specialists in Health Sefvice
Department and it is subrnitted that such a decisionl nu,
been taken along with cliscussions a1t various f"u{l of
consideration, taking into account the overall situati{n in
the Health Service Department. When it is open ft'l the
Government under a particular Statute to deviate fronfr tfie
fixed formula and
prescribe eligibility criteria different
lfrot
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W.P.C.Nos.5 85 8/20 I,l- & conn.cases
a-
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what has been followed earlier, it only rerflects the poli
the Government, which cannot be termed as unreasona
any form. Whern the Government has exercised its stat
power to incorporate in tl^re
prospectus
a
provision
permits more in-service candidates to hrave the bene
admission to Post Graduate/Diploma course, despite th
that such qualifying persons;
will be considered for admi
based on seniority, it cannot be said tlrat the decisi
arbitrary, unreasonable or n'lala fide in an'y manner,
In the said circumstances I am of the view tha
petitioners
are not entitled for any relief and accordingl
writ petitions drr dismissed,
(A.M,SHAFFIQUE,
JU
jsr
yof
le in
tory
hich
it clf
fa ct
sion
nis
the
the
GE)