Eligibility Reduction for Service Quota upheld [

8/12/2019 Eligibility Reduction for Service Quota upheld [

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W.P.C.Nos.5858/2014, rt. conn.cases 19|

Inecessa ry' trt remember that from 7977, education,lincluding, inter alia, medicat and universitylIeducation, is now in the Concurrent l-ist so that thellJnion can legislate on admission criteria also. If itldoes so, ;the State wilt not be abte to tegistate inl

Ithis field, except as provided in Article 254."II16. lt iis further argued that there

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unreasonableness in the decision taken by the Governf',"naIto reduce the eligibility marks for service candidates. lfhe

said decision hras been taken after elaborate discussion{ unOtaking into consideration the requirement of speciulfir"O

IDoctors in the State. As far as the contention regafdinOviolation of Article 162 of the Constitution of lnOia, lit iisargued that when a specific Statute is promulgated O{ tf'tuState under Errtry 25 of List lll and it has received tlre a{sentof the Presiclent of India under Artir:le 254(2) "fl theConstitution, and when the power to issue prorpu.t{rs ismade by virtucl of the power vested under the saiO Statt{te, itis 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 Srelies upon paragraphs 52 and 53 of the Sreevastcase (supra) in order to substantiate the legislcompetence of the State Government in issuingprospectus, Pi'rragraphs 52 and 53 reads its under:

52, Mr S,,tlve, learned counsel appearing for theMedical tlouncil of lndia has, the,refore, rightlysubmittec.l that under the lndian Medical C'ouncilAct of .1956 the lndian Medicerl Council iserrtpowrcd to prescribe, inter alia, standards ofpostgraduate medical education. ln the exercise ofits power:; under Section 20 read with Section 33the lndian Medical Council has framed regulationswhich govern postgraduate medic:al education.Ihese reQrulations, therefore, are binding and theStates caltnot, in the exercise of power under Entry25 of List lll, make rules and regulations which arein conflir.t with or adversely impinge upon theregulations framed by the Medical C'ouncil of lndiafor postl,yraduate medical education, Sinc'e the

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tivethe


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W.P.C.Nos.5 858/20 1.:[ & conn.cases 21

standards; laid down are in the ex:ercise of thepower cc),nferred under Entry 66 of List l, theexercise of that power is exclusivetly within thedomain o,l' the Union Government. Thr? power of theStates under Entry 25 of List lll is subject to Entry66 of List l.53, Secortdly, it is not the exclusive pow,er of theState to l',rame rules and regulations pertaining toeducatior; since the subject is in the CctncurrentList. Therefore, any power exercisecl by t:he Statein the are,a of education under Entry 25 of List lllwill also be subject to any exis'ting relevantprovision.:.; made in that connection by the UnionGovernmc>nt subject, of corJrse, to Anlicle )?54,18. Furtlrer reference is made to the judgme

Sourav Chowrdhary v. Union of India [(2003) 17 SCCto contend thi;rt when a subordinate legi:slation is repethe previous liiw does not survive and the entire legislfails. lt is al:;o contended that in so far as there iregulation ffior.le by MCI prescribing an eligibility critericandidates dn,:i th eligibility criteria has only been fixeNBE which is not under any Statute, it is possible fo

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W.P.C.Nos.5858/20 l'l & conn.cases 22

Government to fix the eligibility marks, lt is further athat the judgrn,ent in Mohammed Riaz (supra) is basedfactual situati,on when MCI Regulationrs were in fwhereas aS rniatters stand now, the MCI Regulationsrepealed by virtue of the judgment in CMC Velloor (suLearned coun:,;el also relied upon the (lonstitution Bjudgment of lthe Supreme Court in Firm A.T.B. MeMajid and Ccr,. v. State of Madras [(7963) Supp (Z)4351 tAlR 1963 SC 9281 in which paraqraph 20 readunder:

"20. lt h;ts been urged for the resp'ondent that ifthe impuqned Rule be held to be intralid, old Rule76 gets revived and that the tax as.sessed on thepetitioner will be good. We do not agree. Once theold Rule has been substituted the new Rule, itceases tc.t svisy and it does not automatically getrevived w'hen the new Rule is held to be invalid,"

Reference is ,elso made to the judgment in Zile SinState of Harvana, tQ004) B SCC l) wherein it is heldthe process o1' substitution consists of twcl steps: first, th

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W.P.C.Nos.5B58/201-t & conn.cases 23 |Irule is made ito cease to exist and, ne)(t, the new rule is

brought into existence in its place.I19. sri.-titus Mani, rearned counsel appearing forlrvrcl,in a few ca:;,es supports the stand of the oetitionerf by

contending tlrat when the amendmernt to the f oooRegulations has been declared to be illegal by the sunrpm,eCourt in CMC Velloor case (supra), the previous]OOORegulations '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 sunrtmercourt 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 ofensubstituted by the new rule, it stands obliterated, {.,u,

Iceases to exist and under no circumstance) can it be reviledin 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 AAz+the Court, though the position would be different in castatutory amendment by the legislature is; held to be bawant of legi:.;lative competence, ln ttlat situation,repealed statu,riory provisions would revive> automaticallLearned coun:,;el also relied upon paragraphs 49 andP,G.Sreevastava's case (supra) in order to substantiatcontentions regarding the legislative competence ofCentral Government to enact laws with reference tograduate medical courses.

20. Havrng regard to the arguments raised bylearned counsel appearing for the petitioners as well arespondents, tlre following issues arise for consideration,

i) The effect of CMC Velloor case (supra) oRegulations frarmed by MCl,

ii) Whel-her there is any legislation whichthe field of prescribing eligibility mar[.ls for PGadmission, enacted under Entry 66 of List 1Constitution o1' India.

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W.P.C.Nos.5858/201,1 & conn.cases 25 |IIiii) Legis;lative competence of the State Governferrt

to prescribe eligibility marks for service candiOate{ asagainst the rnarks prescribed for candidates coming ,fldu'r.

Igeneral categc;,ry.Iiv) Wherther Section 5(3) of the Act enaOtes I the

Government to issue the prospectus rruith the imnu{neOIclause at 4-4.'1..Iv) Whether the impugned clauser at 4-4.7.ut beIsaved under Article 162 of the Constitution of India irl the

light of existence of Secti on 25(vi) of the l(UHS Act.I2I. For easy reference, I am referring t" I the

documents as exhibited in W.P.C.No.5B5B of 2014|22. Ext.P1 is the information bullletin for AIP4MEE

2014. This bulletin indicates that the examination IforI

admission to 50% MD/MS/Diploma coLrrses seats l', Isfurther indicated that the Government of lndia establiphedNBE in 1975 with the object of improving quality of mepicateducation. 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 compeentrance exanrination on all lndia basis for admission tIndia 50% quolta. lt further states that the examinatiobe governed by the rules and regulations specified bGovernment of India, MoH and FW/Directorate GenHealth Service:; and orders of Hon'ble Court.23. No cloubt, as per Ext.Pl notification, a candiconcerned should acquire 50% marks in the compeexamination fclr a pass and qualification for allotment,has a case tlrat Ext.P1 has the force of law andlegislation in telrms of Entry 66 of List 1 of the Constitutilndia.

24. One of the contentions urgerl is that inVelloor Case r[supra), the Supreme court has only declthe 2010 ftsrgulations for post graduate admissiounconstitutional which prescribes a rror'Yrmon entrexamination NEET. One of the arguments is that th2010 Regulations have been declared to be void,

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W.P.C.Nos.5858/201,1-& conn.cases 27 |IIRegulations as well as 2012 Regulations still survive. ThtuOhIin Joint Action Committee of Air Linr: Pilots' Assrf . ofIIndia case (:;upra) it is held that in case a stat$torVIamendment by the legislature is held to be bad for waft ot

legislative cornpetence, the repealed s[atutory provif ionswould revive erutomatically. The said statement of lavrf will

Inot apply to srubordinate legislation and too when by vlrtueof 2010 Regul;ations the previous provision was substit{rtecl.

IThe position of law is clear from the Constitution BpnchIjudgment in Firm A.T.B. Mehtab Majid and Co. (s$Ora)

wherein it is held that once the old Rule has f ""nsubstituted with a new Rule, it ceases t,o exist and it poesInot automatic;llly get revived when the new Rule is nefd to

be invalid. Zile Singh (supra) also deals with a si{nilarIsituation and ilt is held that substitution o1f a provision repultsIin repeal of the earlier provision and its replacement bt theInew provision,II

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W.P.C.Nos.5858/201 -.f & conn.cases 28 |I25. Therefore, when tl,egulation 9 of 2010 Regutafions

is declared as; ultra vires the Constitution in CMC V.{loorcase (supra), clause 9 of 2000 Regulations will not sur[r'u.r.20L2 Regulations only makes some changes to for.oRegulations and the same also will not :;urvive. fnere[fore,as matters stand now, there is no regulation, ,rf f orIstatutory provilsion which enables the petitioners to corttendthat fixation of eligibility miarks for the P.G Medical En,r[n..Examination i:=; covered by any legislation under Entry {U ot

IList 1 of the Constitution of lndia.I26. When there is no such Statute or subordlnat.

legislation witlr reference t


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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 fromis prescribed by NBE. As far as general open categoconcerned, Stiate Governmrent has adopted the eligimarks as 50 /o. In respect of service candidates,eligibility mark.s is reduced to 45o/o. lt is not in disputeas held in P.G"Sreevastava's case (supra) if the field ioccupied by any Central legislation, the Governmentbring in legislertion under Errtry 25 of List llll. lt is well sethat both the tJnion as well as the States have the powlegislate on eclucation including medical education, suof course to Entry 66 of List l, which deals with layingstandards in institutions for higher education or researcscientific and technical institutions as also co-ordinatisuch standards. lt is also held that State has the rigcontrol education including medical education so long afield is not occupied by any Union legislation andcontrolling education in the State, it cannot imping

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W.P.C.Nos.5858/201-[ & conn.cases 30 |IIstandards in institutions for higher education as iF isIexclusively within the pur\/iew of the Llnion Governrfent,

While prescribing the criteria for admissiorr to the institu{ionsIfor higher education includirrg higher meclical educationl the

State cannot adversely affer:t the standarrJs laid down O{ tf.r"IUnion of lndia under Entry i6 of List l, Union can legislaf onIadmission criteria also and in that event, the State will not

be able to legislate in this field, except as; provided in n{ticf eI254. The vires of the Service Quota Act is not in disputel andIit is a legislertion which has received the assent ofl theIPresident of lndia under Article 254(2) of the Constitt{tion.

The contentiorr of the petitioners is that Clause 5(3) Ooe{ notenable the Government to reduce the clualification crilteria

Icontrary to what is stated for general/open categoriesl andthey seek support of the judgment of this .or{ inMohammed Riaz (supra). Section 5 of Service Quot{ O,.a

Ireads as under:I"5, Procedure for selection:-|(1) The Govern,ment may set apart seatsI

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W.P.C.Nos.5858/20 l.l & conn.cases alJI

not exceeding forty percent of the total seatsavailable to State quota in an acadetmic year, forselection of Medical O'fficers under service quotaconsidering their service under the' Governmentfor admission to Post Graduate Medical Courses inthe Medir:al Colleges ctf the State in such manneras may be prescribed,

(2) The academic qualification foradmission to the Posl: Graduate Ccturse shall beM.B.B.S cttegree with minimum fifty trtercent marksand the ctther qualifications shall bet such as maybe 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 shallbe published every ye'ar in the pros;pectus beforethe comrnencement ol' admission,

(4)T-,he Postgra'duate Cour:;e SelectionCommittee sha ll finalise the selection list strictlybased on the seniority in service c>f the MedicalOfficers and following such other c,riteria as maybe 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 |I

Graduate Course Selection Committee for ,n"Iinformation of the applicants," I27. lt is not in dispute that Sections 5(1) unO l5(21)Iclearly indicates that such ar procedure has to be adopttd asIprescribed by the Rules. 1-hough Rules have been frafned,

the same does; not provide for a provision which enaOfef tfreGovernment trc reduce the eligibility criteria, Section I ttrlhowever indicates that the details of eligiibility for admi{sionamong other matters shall be publishecl in the prosp{.tu,before commencement of admission. ln fact, Section Itttland 5(2) by it:;elf cannot br: read as foreclosing the riOf'rt ofthe Government to invoke llection 5(3) tcl mention detaf f, of

Ieligibility for admission, which apparently includesl theIeligibility in the examination, which is conducted in ad ition

to the qualifications presr:ribed under the Rules fr{meOpursuant to sections 5(1) arrd 5(2). A perusal of Exts.nl anOP3 indicates that the Gov,ernment had only aOoOtel theexamination conducted by NBE for the purpose of allotfnent

Iof seats in the State as welll, since the Government diq notI

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W.P.C.Nos.5858/201,1 & conn.cases 33 |I

conduct any separate examination, True that, NBE lnrdfixed 50% mirrimum marks for the eligibility examin{tion

Iwhich is adopted by the Government for general cateporVcandidates as well. But it was clearly irrdicated in fx{s.fZand P3 that tl're admission procedure will be in u..orOf n..

Iwith the prospectus issued by the Government. {henspecific power is conferred on the Government in ternf's ofSection 5(3) to mention elirEibility details in the prorp.f,r,,,as far as service quota candidates are concerned, it calnnotbe contended that in the absence of framing r.rf.f asprovided under sections 5(1) and 5(2), the Govern*"n{ nu,no right to fix a differerrt eligibility criteria for sefuice

Icandidates. ln Mohammed Riaz (suprer), this court, Ivhileconsidering the vires of serction 5(4) of the Service {rotu

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Act, held as under: I"ln astafe where there are more universities thanIone, the appropriate provision of Regulation 9(2)|would apply. The principles of law ernanatinO fromIthe above include that the prescription as to theI

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W.P.C.Nos.5858/20 l,{ & conn.cases 34

requirement of an entrance eXoftlittotion with aminimum eligibility bench mark to Lte acquired inthat entrance test for postgraduate medicaleducation' is within the field covered by Entry 66 inList I and the competence of the State Legislatureto make "t law with ref'erence to Entry 25 in List lllwould not enable it to make any such lawencroaching on the field occupied tty Entry 66 inList l. The, M.C.l. Regul,ations framed under S.3i ofthe IMC A,ct is insulated from any contradiction byany State, legislation.'Therefore, the State cannotmake a law doing away with the requirement, forin-service candidates, to partici,aate in thecommon entrance test for a,dmission topostgraduate medical courses and obtaining theminimum eligibility recyuirement pre:;cribed by theM,C.l. in the Regulations.The concl'usion is that the provision in 5.5(4) of theState Act that the se/ect list of in-service medicalofficers for postgradu,ate medical education shallbe strictl.y on the bas,is of seniorityr it subject tothe requirement that :;uch selection can be madeonly fron't among those in-service ntedical officerswho havc" undergone the common entrance test


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W.P.C.Nos. 58581201.1 &conn.cases 35 |Ifor postttraduate medicat educatirtn and nurrl

obtained the minimurn eligibility bench mark ,, Ithat test t'n terms of the M.C,l. Regulittions."I

The above pro,position of l.rw, of course, applies onfv ufnf'.r"nclause g(2\ of' 2000 Regulations was in force. The Or{r"n,situation is that MCI Regulations are not in force I unO

Itherefore the :;aid judgment has no application to the factsof this case. :Same is the situation witlr reference ,l thejudgment of the Supreme Crrurt in Harish Verma trrOr{1.

28. Therefore, I am of the view that it was well url,an'nthe power of the Governrinent to prescribe an eligif"'aucriteria for service candidates under Secl:ion 5(3) of tfr{ nctby prescribing the same in the prospectus. When ,r[n apower 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

Isuffers from any infirmityr as far as the power ofl theGovernment is concerned

II29. The next question to be considr:red is whethef theI

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W.P.C.Nos.5858/201.1 & conn.cases 36 |I

impugned pro,vision in thre prospectus is, in any l*uUunreasonable. According to the petitioner, the reason stpteOfor incorporatirrg such a provision is "optimum utilizati{n ofservice quota s,eats and to tide over the clearth of ,Ou.i{listsin Health Senvices Department." This, according aol ,nu

Ipetitioners, is arbitrary and unreasonable in so far as thtre isIno dearth of specialists in l-{ealth Service Department, llt it;,

inter alia, contended that out of the limited seats availanfefor Post Gradurate/Diploma course in the State, the nr,[n0.,r.of candidates are more than double, if rerference is *u{e tothe previous \/ears' data, The respondents, howeverl ,efVupon the requirement of specialists in Health SefviceDepartment and it is subrnitted that such a decisionl nu,been taken along with cliscussions a1t various f"u{l ofconsideration, taking into account the overall situati{n inthe Health Service Department. When it is open ft'l theGovernment under a particular Statute to deviate fronfr tfiefixed formula and prescribe eligibility criteria different lfrot

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W.P.C.Nos.5 85 8/20 I,l- & conn.cases a-)l

what has been followed earlier, it only rerflects the polithe Government, which cannot be termed as unreasonaany form. Whern the Government has exercised its statpower to incorporate in tl^re prospectus a provisionpermits more in-service candidates to hrave the beneadmission to Post Graduate/Diploma course, despite ththat such qualifying persons; will be considered for admibased on seniority, it cannot be said tlrat the decisiarbitrary, unreasonable or n'lala fide in an'y manner,

In the said circumstances I am of the view thapetitioners are not entitled for any relief and accordinglwrit petitions drr dismissed,

(A.M,SHAFFIQUE, JUjsr

yofle intoryhichit clffa ctsionnisthethe

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Eligibility Reduction for Service Quota upheld [

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