Dr. Preetha Prabhakaran S & others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938** **WP(C).No. 3313 of 2017 (L) --------------------------** ## **PETITIONERS:** **-------------** **1. DR.PREETHA PRABHAKARAN S, LECTURER, DEPARTMENT OF OBSTETRICS & GYNECOLOGY, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM - 683 503.** **2. DR.GREESHMA SUMANASAN, LECTURER, DEPARTMENT OF GENERAL MEDICINE, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM - 683 503.** **3. DR. DHANYA D, LECTURER, DEPARTMENT OF GENERAL MEDICINE, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM - 683 503.** **4. DR. SHABEENA BASHEER, LECTURER, DEPARTMENT OF OPHTHALMOLOGY, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM - 683 503.** **5. DR. MANOJ ANTONY, LECTURER, DEPARTMENT OF GENERAL SURGERY, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM - 683 503.** **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **RESPONDENTS:** **--------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **--2--** **--2--** **WP(C).No. 3313 of 2017 (L) --------------------------** **2. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE(P.O.), THIRUVANANTHAPURAM - 695 011.** **3. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SHANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.** **BY SENIOR GOVERNMENT PLEADER SRI.V.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-02-2017, THE COURT ON 08-03-2017 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 3313 of 2017 (L) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE M.B.B.S. CERTIFICATE OF REGISTRATION OF THE 1ST PETITIONER. EXHIBIT P2: TRUE COPY OF DGO CERTIFICATE OF THE 1ST PETITIONER. EXHIBIT P3: TRUE COPY OF ORDER NO.E2-1394(8)/2007/CAPE/1948 DATED 12.6.2007 ISSUED BY THE DIRECTOR OF CO-OP. ACADEMY OF PROFESSIONAL EDUCATION TO THE 1ST PETITIONER. EXHIBIT P4: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE 2ND PETITIONER. EXHIBIT P5: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E. DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT. MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO THE 2ND PETITIONER. EXHIBIT P6: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE 3RD PETITIONER. EXHIBIT P7: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E. DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT. MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO THE 3RD PETITIONER. EXHIBIT P8: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE 4TH PETITIONER. EXHIBIT P9: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E. DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT. MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO THE 4TH PETITIONER. EXHIBIT P10: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE 5TH PETITIONER. EXHIBIT P11: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E. DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT. MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO THE 5TH PETITIONER. EXHIBIT P12: TRUE COPY OF MEDICAL COUNCIL OF INDIA POSTGRADUATE MEDICAL EDUCATION REGULATIONS, 2000 ISSUED BY THE MEDICAL COUNCIL OF INDIA.** **--2--** **--2--** ## **WP(C).No. 3313 of 2017 (L) --------------------------** **EXHIBIT P13: TRUE COPY OF KERALA MEDICAL OFFICERS' ADMISSION TO POSTGRADUATE COURSES UNDER SERVICE QUOTA ACT, 2008 ISSUED BY THE GOVERNMENT OF KERALA. EXHIBIT P14: TRUE COPY OF G.O.(RT)NO.809/2016/H&FWD DATED 5.3.2016 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P15: TRUE COPY OF NOTIFICATION DATED 15.2.2000 ISSUED BY THE MEDICAL COUNCIL OF INDIA. EXHIBIT P16: PROSPECTUS ISSUED BY THE GOVERNMENT OF MAHARASHTRA FOR MAKING ADMISSION TO MEDICAL POSTGRADUATE COURSES FOR THE YEAR 2017. EXHIBIT P17: TRUE COPY OF NOTIFICATION DATED 14.10.2016 ISSUED BY THE GOVERNMENT OF PUNJAB, DEPARTMENT OF MEDICAL EDUCATION AND RESEARCH. EXHIBIT P17(A): TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION OF THE 1ST PETITIONER DOWNLOADED FROM THE WEBSITE OF THE NATIONAL BOARD OF EXAMINATION. EXHIBIT P18: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION OF THE 2ND PETITIONER DOWNLOADED FROM THE WEBSITE OF THE NATIONAL BOARD OF EXAMINATION. EXHIBIT P19: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION OF THE 3RD PETITIONER DOWNLOADED FROM THE WEBSITE OF THE NATIONAL BOARD OF EXAMINATION. EXHIBIT P20: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION OF THE 4TH PETITIONER DOWNLOADED FROM THE WEBSITE OF THE NATIONAL BOARD OF EXAMINATION. EXHIBIT P21: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION OF THE 5TH PETITIONER DOWNLOADED FROM THE WEBSITE OF THE NATIONAL BOARD OF EXAMINATION. EXHIBIT P22: TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE GOVERNMENT. RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **mbr/** **P.S. TO JUDGE** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No. 3313 of 2017 ----------------------------------------------Dated this the 8[th] day of March, 2017** ## **JUDGMENT** The reliefs sought for by the petitioners in this writ petition is a direction to the 1[st] respondent to consider and pass orders on Ext.P22 representation submitted by the petitioners before publishing the prospectus for making admission to Postgraduate Medical Courses for the academic year 2017 after affording an opportunity of hearing to the petitioner and to issue a writ of mandamus directing 1[st] respondent to enforce the provisions contained in Act 29 of 2008 while making admissions for Medical Postgraduate course for the academic year 2017. 2. Material facts for the disposal of the writ petition are as follows; petitioners are in-service candidates working in the Medical Education Services. Exts.P1 to P11 are the registration certificates, degree certificates and appointment orders issued to the petitioners respectively. Presently all the petitioners are functioning in the respective posts in the W.P.(C). No.3313 of 2017. 2 Government Medical College, Ernakulam. The Medical Counsel of India has issued Regulations viz., Medical Council of India Post Graduate Medical Education Regulations, 2000, (hereinafter called Regulations 2000) by virtue of the powers conferred under Section 20 r/w. Section 33 of the Medical Council of India Act, 1956 laying down the procedure for making admission to postgraduate medical degree courses, evident from Ext.P12. Above Regulation was the subject matter of various disputes before this court and the Apex Court. According to the petitioners, the Apex Court in the decision reported in **Harish Verma v. Ajay Srivastava** [(2003)8 SCC 69] has considered the question whether Medical Officers, who are employed in the Medical Education and Health Services Department of the Government should clear the entrance examination and secure the minimum marks as laid down in the Regulations issued by the Medical Council of India seeking admission to Postgraduate Medical Courses in the quota reserved for in-service candidates and has held that even such in-service candidates should appear W.P.(C). No.3313 of 2017. 3 for the entrance examination and secure the minimum marks as laid down in the Medical Council of India Regulation for seeking admission to post graduate medial course in the quota earmarked for in-service candidates. 3. Faced with the above situation and since the in-service candidates could not be provided with quota to P.G. Medical course, the 1[st] respondent framed the Kerala Medical Officers admission to post graduate courses to In-service Quota Act, 2008 (Act 29 of 2008) evident from Ext.P13. In Act 29 of 2008, apart from providing a quota for Medical Officers working in the Medical Education Services and the Health Department in different specialties, Section 5 provides that candidates shall be given admission to different courses in accordance with their seniority in the State Service. Since Act 29 of 2008 was directly against Ext.P12 MCI Regulation in as much as that, the said Regulation did not provide for any quota for PG Medical course for in-service candidates. Act 29 of 2008 as such could not be implemented because of the stipulations contained under Article 254 of the Constitution of W.P.(C). No.3313 of 2017. 4 India being inconsistent with the MCI Regulations issued by the Central Government. Hence in order to validate Act 29 of 2008, 1[st] respondent obtained the assent of the President for Act 29 of 2008, which was received on 16.10.2008. Once the said Act got the assent of the President, even though it was inconsistent with MCI Regulations, it became valid in accordance with the provisions contained under Article 254(2) of the Constitution of India. Thus for Post Graduate Medical Courses in the Kerala State in accordance with the provisions contained in the Act 29 of 2008, the Government of Kerala provided a quota for in-service candidates. Seats for Post Graduate Medical Courses was reserved for in-service candidates separately under the heads 'Medical Education Service Quota' and 'Health Service Quota'. However, the provisions contained in Section 5 of Act 29 of 2008 to the extent it provides that, from among those, in-service candidates, admissions shall be made in accordance with the service seniority was struck down by the Apex Court in the decision in **Sudhir.N. and others v. State of Kerala and** W.P.(C). No.3313 of 2017. 5 **others** [(2015) 6 SCC 685]. However, Act 29 of 2008 was never struck down and the same remain valid for providing reservation for in-service candidates. It is also submitted that, the Medical Officers in the Medical College, Ernakulam was also given admission for Postgraduate medical courses in the quota reserved for in-service candidates as per Government Order dated 5.3.2016, evident from Ext.P14. 4. The Medical Council of India amended the Regulations as per notification dated 10.08.2000, evident from Ext.P15. Regulation 9 of Ext.P15 lays down the procedure for admission to postgraduate medical courses. In accordance with the same only candidates who clear the entrance examination obtaining minimum 50% marks are entitled to seek admission for postgraduate medical courses. No reservation for in-service candidates is provided in Ext.P15 Regulations. The only reservation that is provided under subclause (vii) of regulation 9 of Ext.P15 Regulation is admission to postgraduate diploma courses, apart from caste and disability quota etc. etc. Therefore, there is no prohibition W.P.(C). No.3313 of 2017. 6 created for providing reservation for in-service candidates, is the contention. Thus, according to the learned counsel for petitioners, it is clear that Ext.P15 Regulations only prescribed a unified entrance test at national level viz., National Eligibility cum Entrance Test (NEET). No other substantive change is brought about from the Regulations issued in the year 2000. It is also stated that, once an act has received the assent of the President of India under Article 254 of the Constitution of India to insulate the same from being rendered void being inconsistent with any provisions of Central Act, any further amendment made to the Central Act as long as it relates only to procedural aspects will not render the former Act invalid and a further assent from the President is not required for implementing the amended Act. Therefore, it is clear, Act 29 of 2008, which was promulgated by the State of Kerala in order to provide quota for in-service candidates reserving seats for medical postgraduate courses having obtained the assent of the President, does not require further assent of the President after the promulgation of W.P.(C). No.3313 of 2017. 7 Ext.P15 Regulations and Act 29 of 2008 is valid for all purposes to the extent it provides for reservation of seats for in-service candidates for postgraduate medical courses. According to the petitioner, the decision rendered by the Apex Court in **Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others** [AIR 2016 SC 2601] considered the validity of the executive order dated 28.2.2014 issued by the State of Madhya Pradesh, providing that, in-service candidates seeking admission to postgraduate medical courses in the reserved quota, has to work for three years in rural or any difficult areas and held that after the promulgation of Ext.P15 Regulations by the MCI, no reservation for postgraduate medical courses except for postgraduate diploma courses can be provided for in-service candidates. It is the case of the petitioners that, the above decision of the Apex Court has not touched the validity of Act 29 of 2008 promulgated by the State Government, which has already received the assent of the President. According to the petitioners, the ratio of the W.P.(C). No.3313 of 2017. 8 judgment rendered by the Apex Court will not affect the validity of Act 29 of 2008 since in the said judgment, the question considered was with respect to the Government Order vis-a-vis Regulations 2000. Petitioner has also produced Ext.P16 and Ext.P17 prospectus issued by the Government of Maharashtra and the Government of Punjab to canvas the proposition that, seats are reserved for in-service candidates of Public Health Department and ESIS Department. The petitioners herein appeared for the NEET examination conducted by the National Board of Examination pursuant to Ext.P6 Regulations. All the petitioners have secured more than 50% marks in the entrance examination, evident from Exts.P17(a), P(18), P19, P20 and P21 respectively. Petitioners have cleared the NEET examination and therefore, entitled to be admitted for postgraduate medical courses in the quota reserved for in-service candidates. 5. However, petitioners came to know, 1[st] respondent is taking steps to issue prospectus for making admissions to W.P.(C). No.3313 of 2017. 9 postgraduate medical courses for the academic year 20162017 from among other candidates, who have passed the NEET examination. But it is understood that, 1[st] respondent under a mistaken impression that after the decision of the Apex Court in **State of Uttar Pradesh and others v. Dr.Dinesh Singh Chauhan** [AIR 2016 SC 3841 = (2016) 9 SCC 749] that, no reservation for in-service candidates can be provided for postgraduate medical courses and therefore, in the prospectus proposed to be issued, the seats are sought to be filled up without providing for any reservation for inservice candidates virtually overlooking the provisions contained under Act 29 of 2008. Therefore, petitioner has submitted Ext.P22 representation before the 1[st] respondent seeking to make sufficient provisions to protect the interest of in-service candidates in accordance with the provisions of Act 29 of 2008. These are the background facts projected by the petitioners to secure the reliefs sought for in the writ petition. 6. Heard learned counsel for the petitioners, learned Senior Government Pleader and perused the documents on W.P.(C). No.3313 of 2017. 10 record and the pleadings put forth by the petitioner. 7. The predominant contentions advanced by learned counsel for petitioners is that, in view of the provisions contained under Act 29 of 2008 promulgated by the 1[st] respondent, evident from Ext.P13 the in-service candidates are entitled to secure reservation. Section 5 of the said Act provides procedure for selection by which the Government is empowered to set apart seats not exceeding 40% of the total seats available to State quota in an academic year for selection of Medical Officers under service quota considering their service under the Government for admission to Postgraduate Medical courses in the Medical Colleges of the State in a manner as may be prescribed. It also provides that the academic qualification for admission to the Postgraduate course shall be M.B.B.S. Degree with minimum 50% marks and the other qualifications shall be, such as may be prescribed. That apart it is contended, Act 29 of 2008 received the assent of the President on 16.10.2008 and therefore, by virtue of Article 254(2), the admission in the W.P.(C). No.3313 of 2017. 11 State of Kerala to the Postgraduate Medical courses is guided by the said provision and the petitioners are entitled as of right to get reservation. Article 254 of the Constitution of India deals with inconsistency between the laws made by the legislatures of a State. Clause (1) of Article 254 of the Constitution of India provides that, if any provision of law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by the Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Clause (2) of Article 254 of the Constitution of India provides that, where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the W.P.(C). No.3313 of 2017. 12 provisions of an earlier law made by Parliament or an existing law with respect to the matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Therefore, relying upon clause (2)of Article 254 of the Constitution of India, learned counsel for petitioners contended that, the provisions of Act 29 of 2008 will prevail over MCI Postgraduate Medical Education Regulations, 2000, as amended from time to time within the State of Kerala. According to the learned counsel, as per Entry 66 of List II of Schedule 7 of the Constitution of India, Government is vested with power for co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions whereas as per Entry 25 of List III of Schedule 7 i.e.,the Concurrent List, State is also vested with power to legislate on education including technical education, medical education and universities subject to the provisions of entries 63, 64, 65 and 66 of List I, vocational and technical training of labour. Therefore, according to the learned counsel for petitioners, W.P.(C). No.3313 of 2017. 13 Act 29 of 2008 is promulgated by the State exercising the powers so conferred under the Concurrent List. So far as Regulations 2000 is concerned, it deals only with the coordination and determination of standards in institutions for higher education etc. etc. and therefore, the reservation made by the State Government under Act 29 of 2008 will not be guided by Entry 66 of the Union List. 8. In my considered opinion a survey of regulation 9 of Regulations 2000, which deals with criteria for selection of postgraduate students would be worthwhile. Clause (1) of regulation 9 substituted by notification dated 8.10.2012 w.e.f. 23.10.2012 prescribes only a single eligibility cum-entrance examination namely, National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses in each academic year. The superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with National Board of Examination under overall supervision of the Ministry of Health and Family, Government of India. Clause (ii) deals with reservation of seats to candidates with W.P.(C). No.3313 of 2017. 14 locomotory disability of lower limbs between 50% to 70%. Clause (iii) deals with the eligibility criteria, which prescribes, in order to be eligible for admission to any Postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum marks at 50[th] percentile in National Eligibility-cum-Entrance Test for Postgraduate courses held for the said academic year. However, in respect of candidates belonging to scheduled castes, scheduled tribes, other backward classes, the minimum percentage marks shall be 40[th] percentile and in respect of candidates as provided in clause 9(ii) above with locomotory disability of lower limbs, the minimum marks shall be at 45[th] percentile (percentile introduced w.e.f.27.2.2012). Clause (iv) deals with reservation of seats in Medical Colleges/Institutions for respective categories as per applicable laws prevailing in States/ Union Territories. An all India merit list as well as State wide merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and the candidates shall be W.P.(C). No.3313 of 2017. 15 admitted Postgraduate courses from the said merit list only. The proviso thereto reads that, in determining the merit of candidates, who are in service of Government/public authority, weightage in the marks may be given by the Government/competent authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult area upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult areas shall be as defined by the State Government /competent authority from time to time. Among other stipulations, clause (vii) states that, 50% of the seats in Postgraduate diploma courses shall be reserved for Medical Officers in the Medical Services, who have served for at least three years in remote and/or difficult areas. But after acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult area as defined by State Government or competent authority from time to time. Evaluation of the above said provisions would be enough to decide the issue raised by the petitioners in the writ petition. W.P.(C). No.3313 of 2017. 16 9. According to the learned counsel for petitioners, regulation 9 is not providing any sort of reservation to the inservice candidates within the State, and therefore, the provisions contained under Act 29 of 2008 has no manner of repugnancy over the aforementioned provisions of Regulations 2000. It is thus the contention of the learned counsel, the State Government is duty bound to provide necessary quota for the in-service candidates in the prospectus. 10. According to the learned counsel, in **Sudhir.N. and others v. State of Kerala and others** referred to supra, the Apex Court had only occasion to consider the reservation made to in-service candidates, on the basis of seniority by and between the in-service candidates, and the Apex Court never considered the issue taking note of the provisions contained under Act 29 of 2008, enabling the State Government to make reservation for in-service candidates. However, in my considered opinion, the Apex Court had occasion to consider the provisions of Act 29 of 2008 vis-a-vis the provisions of Regulations 2000 and in paragraphs 7 & 8 it is held as follows: W.P.(C). No.3313 of 2017. 17 “7. The primary ground on which the challenge to the validity of the legislation was mounted by the writ petitioners was that the State Legislature could not enact a law that would make selection for admission to the postgraduate courses dependent solely on the seniority of the in-service candidates without prescribing the minimum conditions of eligibility for the candidates concerned. Competence of the State Legislature to enact Section 5(4) of the impugned legislation was also called in question on the ground that the said piece of legislation violated the Regulations framed by the Medical Council of India, the authority competent to do so under the Medical Council of India Act, 1956. It was argued that the Postgraduate Medical Education Regulations, 2000 provided the minimum requirements that all the candidates have to fulfil. Inasmuch as the State enactment contrary to the said Regulations and requirement postulates that selection of candidates shall be made only on the basis of seniority it was beyond the legislative competence of the Kerala State Legislature. The Indian Medical Council Act and the MCI Regulations framed under the same were, argued the writ petitioner- W.P.(C). No.3313 of 2017. 18 respondents herein, referable only to Schedule VII List I Entry 66. Any legislation enacted by the State Legislature in exercise of its power under Entry 25 in List III was subject to any law to the contrary passed by Parliament in exercise of its power under Entry 66 of List I. That the State Act was reserved for consideration of the President and that it has received the assent of His Excellency in terms of Article 254(2) of the Constitution, did not save the legislation from the vice of legislative incompetence. 8. The State of Kerala contested the petitions and, inter alia, argued that the State enactment was in pith and substance different from the Indian Medical Council Act and the MCI Regulations. The State attempted to justify the legislation under Entry 25 of List III and argued that it does not in any manner conflict with Entry 66 of List I. It was argued that the dominant purpose of the legislation under challenge ought to be seen, and that purpose did not, according to the State, in any way, impinge upon the Central legislation so as to call for any interference by the Court.” 11. After evaluating the provisions contained under W.P.(C). No.3313 of 2017. 19 regulation 9 (as it stood then), it is held that, the provision leaves no manner of doubt that admission to postgraduate medical courses have to be made only on the basis of academic merit of the candidates. It is clear from the regulation that for determining academic merit, the university/institution can adopt any of the methodologies stipulated therein under sub-clauses (a) to (d). In terms of proviso (1) to Regulation 9, general category candidates must secure 50% marks while those belonging to Scheduled Castes/Scheduled Tribes and other backward classes are required to secure at least 40% marks in the entrance test in order to be eligible for admission. In terms of clause (iv) of regulation 9, weightage for service rendered in remote and/or difficult areas is made permissible at the rate of 10% marks obtained for each year of service in remote or difficult areas upto the maximum of 30% of the marks obtained in the NEET. Finding so in paragraph 15 of the judgment it is held as follows: “15. Regulation 9 is, in our opinion, a W.P.(C). No.3313 of 2017. 20 complete code by itself inasmuch as it prescribes the basis for determining the eligibility of the candidates including the method to be adopted for determining the inter se merit which remains the only basis for such admissions. To the performance in the entrance test can be added weightage on account of rural service rendered by the candidates in the manner and to the extent indicated in the third proviso to Regulation 9. Suffice it to say that but for the impugned legislation making an attempt to change the basis on which admissions can be made, such admissions must, in all categories, be made only on the basis of merit as determined in terms of the provision extracted above. That method, however, is given a go-by by the impugned legislation when it provides that inservice candidates seeking admission in the quota reserved for in-service doctors shall be granted such admission not on the basis of one of the methodologies sanctioned by Rule 9(2) of the Rules but on the basis of inter se seniority of such candidates. The question is whether the State was competent to enact such a law. Our answer to that question is in the negative. The reasons are not far to seek.” 12. According to the learned counsel for petitioners, W.P.(C). No.3313 of 2017. 21 what could be gathered from the findings of the Apex Court is that, it was considering only the question with respect to the quota provided to the in-service candidates by making the seniority as criteria. However, in my considered opinion, above noted paragraphs would show that, the Apex Court was considering the entire provisions of Regulation 9 and held that, the provision contained under Regulation 9 providing weightage marks on account of rural service rendered by the candidates in the manner and to the extent indicated in the said proviso to Regulation 9 alone is the method and the same prescribes the standard provided under Entry 66 of the Union List. Therefore, the contention raised by the petitioners that, there is no repugnancy by and between the provisions of Act 29 of 2008 and Regulations 2000 cannot be sustained. First of all Entry 66 of the Union List deals with higher education. The incentive provided to the in-service candidates is a subject matter fixing standard, and the same can never be termed as a procedure enabling the State Government to reply on a legislation promulgated under Entry 25 of List III W.P.(C). No.3313 of 2017. 22 of the VII schedule to the Constitution of India. 13. In that regard learned Senior Government Pleader invited my attention to the judgment of the Apex Court in **Pt.Rishikesh and Another v. Salma Begum** [1995(4) SCC 718] to canvass the preposition that, Act 29 of 2008 is not valid since Regulations 2000 has undergone drastic amendments from time to time thereafter, and the State Act was not placed for assent as prescribed under Article 254 of the Constitution of India. Paragraph 15 of the said judgment is relevant to the context, which read thus: “15. Clause (2) of Article 254 is an exception to clause (1). If law made by the State Legislature is reserved for consideration and receives assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central law and operates in that State as valid law. If Parliament amends the law, after the amendment made by the State Legislature has received the assent of the President, the earlier amendment made by the State Legislature, if found inconsistent with the W.P.(C). No.3313 of 2017. 23 Central amended law, both Central law and the State law cannot coexist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State law becomes void under Article 254(1) unless the State Legislature again makes law reserved for the consideration of the President and receives the assent of the President.” 14. Therefore, it can be seen that, even assuming that the said law applies in the State, consequent to the amendments made, the State law is not reserved for the assent of President. Looking either way, the contention put forth by the petitioners in that regard cannot be sustained under law. Even though learned counsel for petitioners has invited my attention to the judgment of the Apex Court in **Subodhaya Chit Fund (P) Ltd. and another v. Director of Chits, Madras and another** [ AIR 1991 SC 998] in that regard, I do not think that the proposition of law laid down in respect of the issue of securing assent from the President on consequential amendment was considered therein. That apart in **Sudhir N. and others V. State of Kerala and others** W.P.(C). No.3313 of 2017. 24 (supra), the Apex Court had occasion to consider regulation 9 of Regulations 2000 taking into account the judgments of the Apex Court in **Dr.Preethi Srivastava and another v. State of M.P. and others** [(1999) 7 SCC 120], **State of Tamil Nadu and another v. Adhiyaman Educational & Research Institute and others** [(1995) 4 SCC 104] which dealt with the expression 'co-ordination' used in Entry 66 of Union List of the 7[th] Schedule of the Constitution. 15. On a reading of the said evaluation made by the Apex Court, it is clear that, the subject matter with respect to a State law encroaching upon Entry 66 of the Union List depends upon facts of each and every case. The Apex Court held that the Central Act was intended to achieve the object of co-ordinated and integrated development of the technical education system at all levels throughout the country with a view to promote quantitative improvement of such education and further held that, the Central Act namely the All India Council for Technical Education Act, 1987 was within the scope of Entry 66 of List I and Entry 25 of List III and that on W.P.(C). No.3313 of 2017. 25 the subject covered by the statute the State could either make a law under Entry 11 of List II nor under Entry 25 of List III after the 42[nd] amendment. 16. Learned counsel for petitioners has also invited my attention to the judgment of the Apex Court in **Modern Dental College and Research Centre and others** (supra), wherein the judgment in **Dr. Preethi Srivastava** (supra) and **Adhiyaman Educational & Research Institute** (supra), **Bharati Vidhyapeeth** [AIR 2007 SC 1943] were all considered. True, it is held that the judgment rendered by the Apex Court in **Bharati Vidhyapeeth** that the entire gamut of admission falls under Entry 66 of List I is contrary to the law laid down in earlier larger bench decisions in Gijarath University. Learned counsel invited my attention to paragraphs 94 to 97 of the judgment in **Modern Dental College** (supra) to canvass the proposition that, the objective in prescribing minimum standard is to provide a bench mark of the caliber and quality of education being imparted by various educational W.P.(C). No.3313 of 2017. 26 ## institutions in the entire country which read thus: 94) Most educational activities, including admissions, have two aspects: The first deals with the adoption and setting up the minimum standards of education. The objective in prescribing minimum standards is to provide a benchmark of the caliber and quality of education being imparted by various educational institutions in the entire country. Additionally, the coordination of the standards of education determined nationwide is ancillary to the very determination of standards. Realising the vast diversity of the nation wherein levels of education fluctuated from lack of even basic primary education, to institutions of high excellence, it was though desirable to determine and prescribe basic minimum standards of education at various levels, particularly at the level of research institutions, higher education and technical education institutions. As such, while balancing the needs of States to impart education as per the needs and requirements of local and regional levels, it was essential to lay down a uniform minimum standard for the nation. Consequently, the Constitution makers provided for Entry 66 in List I with the objective of maintaining uniform standards of W.P.(C). No.3313 of 2017. 27 education in fields of research, higher education and technical education. 95) The second/other aspect of Education is with regard to the implementation of the standards of education determined by the Parliament, and the regulation of the complete activity of Education. This activity necessarily entails the application of the standards determined by the Parliament in all educational institutions in accordance with the local and regional needs. Thus, while Entry 66 List I dealt with determination and coordination of standards, on the other hand, the original Entry 11 of List II granted the States the exclusive power to legislate with respect to all other aspects of education, except the determination of minimum standards and coordination which was in national interest. Subsequently, vide the Constitution (Forty-second Amendment) Act, 1976, the exclusive legislative field of the State Legislature with regard to Education was removed and deleted, and the same was replaced by amending Entry 25, List III, granting concurrent powers to both Parliament and State Legislature the power to legislate with respect to all other aspects of Education, except that which was specifically W.P.(C). No.3313 of 2017. 28 covered by Entry 63 to 66 of the List I. 96) No doubt, in Bharti Vidyapeeth it has been observed that the entire gamut of admission falls under Entry 66 of List I. The said judgment by a Bench of two Judges is, however, contrary to law laid down in earlier larger Bench decisions. In Gujarat University , a Bench of five Judges examined the scope of Entry 2 of List II (which is now Entry 25 of List III) with reference to Entry 66 of List I. It was held that the power of the State to legislate in respect of education to the extent it is entrusted to the Parliament, is deemed to be restricted. Coordination and determination of standards was in the purview of List I and power of the State was subject to power of the Union on the said subject. It was held that the two entries overlapped to some extent and to the extent of overlapping the power conferred by Entry 66 of List I must prevail over power of the State. Validity of a state legislation depends upon whether it prejudicially affects ‘coordination or determination of standards’, even in absence of a union legislation. In R.Chitralekha v. State of Mysore, the same issue was again considered. It was observed that if the impact of State law is heavy or devastating as to wipe out or abridge the W.P.(C). No.3313 of 2017. 29 central field, it may be struck down. In State of T.N. & Anr. v. Adhiyaman Educational & Research Institute & Ors., it was observed that to the extent that State legislation is in conflict with the Central legislation under Entry 25, it would be void and inoperative. To the same effect is the view taken in Dr. Preeti Srivastava and State of Maharashtra v.Sant Dnyaneshwar Shikshan Shastra Mahavidalaya & Ors. Though the view taken in State of Madhya Pradesh v. Kumari Nivedita Jain & Ors.and Ajay Kumar Singh & Ors. v.State of Bihar& Ors. to the effect that admission standards covered by Entry 66 of List I could apply only post admissions was overruled in Dr. Preeti Srivastava,it was not held that the entire gamut of admissions was covered by List I was wrongly assumed in Bharti Vidyapeeth. 97)We do not find any ground for holding that Dr. Preeti Srivastava excludes the role of states altogether from admissions. Thus, observations in Bharti Vidyapeeth that entire gamut of admissions was covered by Entry 66 of List I cannot be upheld and overruled to that extent. No doubt, Entry 25 of List III is subject to Entry 66 List I, it is not possible to exclude the entire gamut of admissions from W.P.(C). No.3313 of 2017. 30 Entry 25 of List III. However, exercise of any power under Entry 25 of List III has to be subject to a central law referable to Entry 25.” 17. Therefore, according to the learned counsel, paragraph 97 of the said judgment clearly laid down that the principles of law laid down in **Dr. Preethi Srivastava** does not exclude a State enactment altogether in admissions to postgraduate medical education. Learned counsel also invited my attention to the judgment of **State of U.P. and others v. Dr.Dinesh Singh Chauhan** [AIR 2016 SC 3841=2016(9) SCC 749] and specifically to paragraph 30 which read thus: “30. As aforesaid, Regulations have been framed by an Expert Body based on past experience and including the necessity to reckon the services and experience gained by the in-service candidates in notified remote and difficult areas in the State. The proviso prescribes the measure for giving incentive marks to in-service candidates who have worked in notified remote and difficult areas in the State. That can be termed as a qualitative factor for determining their merit. Even the quantitative factor to reckon merit of the eligible in-service candidates is W.P.(C). No.3313 of 2017. 31 spelt out in the proviso. It envisages giving of incentive marks at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto 30% of the marks obtained in NEET. It is an objective method of linking the incentive marks to the marks obtained in NEET by the candidate. To illustrate, if an in-service candidate who has worked in a notified remote and/or difficult area in the State for at least one year and has obtained 150 marks out of 200 marks in NEET, he or she would get 15 additional marks; and if the candidate has worked for two years, the candidate would get another 15 marks. Similarly if the candidate has worked for three years and more, the candidate would get a further 15 marks in addition to the marks secured in NEET. 15 marks out of 200 marks in that sense would work out to a weightage of 7.5% only, for having served in notified remote and/or difficult areas in the State for one year. Had it been a case of giving 10% marks enbloc of the total marks irrespective of the marks obtained by the eligible in-service candidates in NEET, it would have been a different matter. Accordingly, some weightage marks given to W.P.(C). No.3313 of 2017. 32 eligible in-service candidate linked to performance in NEET and also the length of service in remote and/or difficult areas in the State by no standard can be said to be excessive, unreasonable or irrational. This provision has been brought into force in larger public interest and not merely to provide institutional preference or for that matter to create separate channel for the inservice candidate, much less reservation. It is unfathomable as to how such a provision can be said to be unreasonable or irrational.” 18. So also learned Senior Government Pleader contended, reservation is a policy matter of the State Government and the State is not intending to make any reservation to in-service candidates over and above the incentive provided to such candidates as per regulation 9 of Regulations 2000. Learned Senior Government Pleader heavily relied on the aforequoted judgments and contended that, the law laid down by the Apex Court in **Sudhir. N and others** , **Dr.Preethi Srivastava** and **Adhiyaman Educational & Research Institute and others** (supra) is governing the W.P.(C). No.3313 of 2017. 33 field). That apart learned Senior Government Pleader invited my attention to a Division Bench Judgment of this Court in **Mohammed Riaz K.M.(Dr.) and others v. State of Kerala** **and Others** [2011 KHC 275 = 2011 (2) KLT 294] and specifically invited my attention to paragraphs 5, 6 and 8, which read thus: “5.The impugned State Act stands with assent of the President in terms of Art.254(2) of the Constitution. When a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by the Parliament or an existing law with reference to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. This provision deals only with possible repugnancy between provisions of laws made by the Parliament and the laws made by the State with reference to any particular entry in the Concurrent List, i.e., W.P.(C). No.3313 of 2017. 34 List III. Recourse to Presidential assent under Art.254(2) is not curative of the absence of legislative competence in terms of the provisions of Art.246 and Seventh Schedule of the Constitution. Therefore, the support of Presidential assent in terms of Art.254(2) would not save the impugned provisions of the State legislation if the subject dealt with therein falls within the Union List. 6. Hence, the crucial question would be whether the subject of the State Act, to the extent impugned, is one that falls within Entry 66 of the Union List. If it is so, the State Act to the extent impugned, would fail on ground of lack of legislative competence. If that subject falls within Entry 25 of the Concurrent List, it stands. 8. Among the conclusions in Gopal D.Tirthani (supra), it has been specifically laid down that the requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the M.C.I. Regulations and though there could be a separate and exclusive channel of entry or source of admission for in-service candidates, there has to be only one common entrance test for determining the eligibility for post graduation for in- W.P.(C). No.3313 of 2017. 35 service candidates and those not in service. In a State where there are more universities than one, the appropriate provision of Regulation 9(2) would apply. The principles of law emanating from the above include that the prescription as to the requirement of an entrance examination with a minimum eligibility bench mark to be 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 a law with reference to Entry 25 in List III would not enable it to make any such law encroaching on the field occupied by Entry 66 in List I. The M.C.I. Regulations framed under S.33 of the IMC Act 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 participate in the common entrance test for admission to postgraduate medical courses and obtaining the minimum eligibility requirement prescribed by the M.C.I. in the Regulations. ” ## It is held in **Adhiyaman Educational & Research** W.P.(C). No.3313 of 2017. 36 ## **Institute** (supra) at para 41 as follows: **:** 41. What emerges from the above discussion is as follows: (i) The expression ‘coordination’ used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make ‘coordination’ either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. (ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate W.P.(C). No.3313 of 2017. 37 legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. (iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. (iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case. (v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law. (vi) However, when the situations/seats are W.P.(C). No.3313 of 2017. 38 available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally.” 19. Reckoning the entire gamut of the issues and culling out the proposition of law laid down by the Apex Court, I do not find any beneficial or other findings favourable to the petitioners. Therefore, in my considered opinion, it is clear, so far as the standard of higher education is concerned, Entry 66 of List I of Schedule 7 of the Constitution of India plays an important role, and the proviso to clause 4 of Regulation 9 clearly excludes reservation for in-service candidates by unequivocally stating that, in-service candidates are only W.P.(C). No.3313 of 2017. 39 entitled to incentive at the rate of 10% of the marks obtained for each year of service in remote and difficult rural areas subject to maximum of 30% marks obtained in National Eligibility-cum-Entrance Test. Therefore, in my considered opinion, the provisions contained under Act 29 of 2008 is clearly encroaching upon Entry 66 of List I, under which, Union Government has promulgated Regulations 2000, by invoking the power conferred under the provisions of the MCI Act, 1956. Moreover, Regulations 2000 provides for reservation to in-service candidates to postgraduate diploma courses. The same is also a clear and convincing indicative factor to establish that the reservation to in-service candidates to postgraduate medical education is given a go by as per Regulations 2000. 20. In that view of the matter, the reliefs sought for by the petitioners in this writ petition seeking direction to provide a provision for reservation to in-service candidates in accordance with the provisions of Act 29 of 2008 cannot be sustained under law. W.P.(C). No.3313 of 2017. 40 Sequel to the above discussion is, petitioner is not entitled to secure any reliefs sought for in the writ petition. Resultantly, writ petition fails, and it is accordingly dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 03.03.2017