TMI Blog1999 (8) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... sent judgment. So far as conclusion no.3 is concerned, with respect, it is not possible for me to agree with the reasoning and the final conclusion to which our esteemed colleague Justice Sujata V. Manohar has reached, namely, that fixing minimum qualifying marks for passing the entrance test for admission to postgraduate courses is concerned with the standard of Postgraduate Medical Education. I, however, respectfully agree to that part of conclusion no.3 which states that there cannot be a wide disparity between the minimum qualifying marks for reserved category candidates and the minimum qualifying marks for general category candidates at this level. I also respectfully agree that there cannot be dilution of minimum qualifying marks for such reserved category candidates up to almost a vanishing point. The dilution can be only up to a reasonable extent with a rock bottom, below which such dilution would not be permissible as demonstrated hereinafter in this judgment. In my view, maximum dilution can be up to 50% of the minimum qualifying marks prescribed for general category candidates. On that basis if 45% passing marks are prescribed for general category, permissible dilu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted by the Gujarat University. It was held that If a legislation imposing a regional language or Hindi as the exclusive medium of instruction is likely to result in lowering of standards, it must necessarily fall within Item 66 of List I and be excluded to that extent from Item 11 of List II as it then stood in the Constitution. Medium of instruction was held to have an important bearing on the effectiveness of instruction and resultant standards achieved thereby. In this connection, pertinent observations were made at pages 142 and 143 of the aforesaid Report: If adequate text-books are not available or competent instructors in the medium, through which instruction is directed to be imparted, are not available, or the students are not able to receive or imbibe instructions through the medium in which it is imparted, standards must of necessity fall, and legislation for co-ordination of standards in such matters would include legislation relating to medium of instruction. If legislation relating to imposition of an exclusive medium of instruction in a regional language or in Hindi, having regard to the absence of text-books and journals, competent teachers and incapacity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... studying at such institutions for higher education such students have to undertake the prescribed course of education evolved with a view to having uniform and well laid down standards of higher medical education. It cannot be disputed that postgraduate teaching in medical education is being imparted by institutions for higher medical education. But the question is whether the topic of admission of eligible candidates/students for taking education in such institutions has anything to do with co-ordination and determination of standards in these institutions. Now standards in the institutions have been prefixed by two words, namely, co-ordination and determination of such standards as per Entry 66 of List I. So far as co-ordination is concerned, it is a topic dealing with provision of uniform standards of education in different institutions so that there may not be any hiatus or dissimilarity regarding imparting of education by these institutions to the students taking up identical courses of study for higher medical education in these institutions. That necessarily has a nexus with the regulations of standards of education to be imparted to already admitted students to the concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controlled by short-listing a number of eligible candidates out of the larger number of claimants who are also eligible for admission. In other words, there can be too many eligible candidates chasing too few available seats. So far as this question is concerned, it clearly gets covered by Entry 25 of Concurrent List III rather than Entry 66 of List I as the latter entry would enable, as seen above, the Medical Council of India only to lay down the standards of eligibility and basic qualification of graduate medical students for being admitted to any higher postgraduate medical course. Having provided for the queue of basically eligible qualified graduate medical students for admission to postgraduate medical courses for a given academic year, the role of Medical Council of India would end at that stage. Beyond this stage the field is covered by Entry 25 of List III dealing with education which may also cover the question of controlling admissions and short-listing of the eligible candidates standing in the queue for being admitted to a given course of study in institutions depending upon the limited number of seats available in a given discipline of study, the number of eligible c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into the institutions and cannot cover the situation prior to their admission, meaning thereby, pre-admission stage for students seeking entry to the institution of higher education cannot be countenanced. The reason is obvious. Once it is held that the Medical Council of India exercising its statutory functions and powers under the Indian Medical Council Act, 1956 which squarely falls within Entry 66 of List I can lay down the eligibility and basic qualifications of students entitled to be admitted to such postgraduate courses of study, their eligibility qualification would naturally project a consideration which is prior to their actual entry in the institutions as students for being imparted higher education. That would obviously be a pre-admission stage. Therefore, the phrase determination of standards in institutions does not necessarily mean controlling standards of education only after the stage of entry of students in these institutions and necessarily not prior to the entry point. However, as seen earlier, the real question is whether determination of standards in institutions would go beyond the stage of controlling the eligibility and basic qualification of students fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be imparted to the students has a direct nexus with infrastructural facilities like number of beds of patients to be attended to by postgraduate medical students, providing appropriate infrastructure for surgical training etc. also would form part of education. Role of Medical Council of India is exclusive in the field of laying down of basic qualifications of the taught and also the requirement of qualified teachers, their numbers and qualifications, prescribing text and requisite training to be imparted to students undertaking postgraduate medical courses. All these provisions quite clearly fall within the domain of Medical Council of Indias jurisdiction. However, the only field left open by the Parliament while enacting the Indian Medical Council Act, 1956 under Entry 66 of List III of Schedule VII is the solitary exercise of short- listing of eligible taught for being admitted to such courses. That field can validly be operated upon by the State authorities so long as Parliament, in its wisdom, does not step in to block even that solitary field otherwise remaining open for State authorities to function in that limited sphere. Infrastructure facilities, therefore, for giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e courses of study in medicine is traceable to Entry 25 in List III. (Entry 11 in List II, it may be remembered, was deleted by the 42nd Amendment to the Constitution and Entry 25 of List III substituted). The States, which establish and maintain these institutions have the power to regulate all aspects and affairs of the institutions except to the extent provided for by Entries 63 to 66 of List I. Shri Salve contended that the determination and coordination of standards of higher education in Entry 66 of List I takes in all incidental or ancillary matters, that Regulation of admission to courses of higher education is a matter incidental to the determination of standards and if so, the said subject- matter falls outside the field reserved to the States. He submits that by virtue of Entry 66 List I, which overrides Entry 25 of List III, the States are denuded of all and every power to determine and coordinate the standards of higher education, which must necessarily take in regulating the admission to these courses. Even if the Act made by parliament does not regulate the admission to these courses, the States have no power to provide for the same for the reason that the said subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of teaching or research or for any charitable object; (d) to provide for the formation of a Committee of Postgraduate Medical Education for the purpose of assisting the Medical Council of India to prescribe standards of postgraduate medical education for the guidance of Universities and to advise Universities in the matter of securing uniform standards for postgraduate medical education throughout India; (e) to provide for the maintenance of an all-India register by the Medical Council of India, which will contain the names of all the medical practitioners possessing recognised medical qualifications. Amongst others, the object and reason no.(d) clearly indicated that the Act was to provide for the formation of a Committee of Postgraduate Medical Education for the purpose of assisting the Medical Council of India to prescribe standards of postgraduate medical education for the guidance of Universities. This necessarily meant conferring power on Medical Council of India to be the approving body for the universities for enabling them to prescribe standards of postgraduate medical education. Naturally that referred to the courses of study to be prescribed and the types of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teaching or examining postgraduate students of medicine. (3) Six of the members of the Postgraduate Committee shall be nominated by the Central Government and the remaining three members shall be elected by the Council from amongst its members. (4) For the purpose of considering Postgraduate studies in a subject, the Postgraduate Committee may co-opt, as and when necessary, one or more members qualified to assist it in that subject. (5) The views and recommendations of the Postgraduate Committee on all matters shall be placed before the Council; and if the Council does not agree with the views expressed or the recommendations made by the Postgraduate Committee on any matter, the Council shall forward them together with its observations to the Central Government for decision. Sub-section (1) of Section 20 while dealing with prescription of standards of postgraduate medical education by the Council for the guidance of Universities does not by itself touch upon the topic of controlling of admission of eligible medical graduates or short-listing them according to the exigencies of the situations at a given point of time by those running medical institutions imparting postg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the increase in its admission capacity without previous permission of the Central Government. Any medical qualification obtained by such student will not enable him or her to be treated as duly medically qualified. The medical qualification is obviously obtained by the student who has successfully completed his course of study and obtained the requisite degree. It is the obtaining of such requisite medical degree and qualification that entitles him to get enrolled as per Section 15 on any State Medical Register so that he can act as a Registered Medical Practitioner. That obviously has nothing to do with the admission of students desirous of obtaining medical degrees after undergoing requisite educational training at the institutions. Therefore, no regulation framed under Section 33(fc) can cover the topic of short-listing of eligible candidates for admission. Then remains in the filed clause (j) which provides as under : [(j)the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions for grant of recognised medical qualificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or feasible to satisfy those needs. Since it would not be possible to admit all candidates in the medical colleges run by the Government, some basis for screening the candidates had to be set up. There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centres for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise. Similar observations were made at page 628 of the Report : On account of paucity of institutions imparting training in technical studies and the increasing number of candidates seeking admission therein, there is obviously the need for classification to enable fair and equitable distribution of available seats. The very decisions relied on by counsel for the petitioner implicitly recognise the need for classification and the power of those who run such institutions to lay down classification. A three Judge bench of this Court in State of Madhya Pradesh Anr. vs. Kumari Nivedita Jain Ors., (supra) had to consider the legalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary. Note (ii) of Rule 20 of the Rules for admission framed by the State Government specifically empowers the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary. Such relaxation neither can be said to be unreasonable, nor constitutes violation of Article 15(1) and (2) or Article 14 of the Constitution. The impugned order does not affect any relaxation in the standard of medical education or curriculum of studies in Medical Colleges for those candidates after their admission to the College and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation which they must pass and the standards of proficiency they must attain to obtain the recognised medical qualifications but it does not speak of admission to such courses of study. Indeed, none of the sections aforementioned empower the council to regulate or prescribe qualifications or conditions for admission to such courses of study. No other provision in the Act does. It is thus clear that the Act does not purport to deal with, regulate or provide for admission to graduate or postgraduate medical courses. Indeed, insofar as postgraduate courses are concerned, the power of the Indian Medical Council to prescribe the minimum standards of medical education is only advisory in nature and not of a binding character. In such a situation, it would be rather curious to say that the Regulations made under the Act are binding upon them. The Regulations made under the Act cannot also provide for or regulate admission to postgraduate courses in any event. In our view, these observations are clearly borne out from the statutory scheme of the Indian Medical Council Act, as seen earlier. III. Role of States for short-listing of admissions to postgraduate courses: As seen earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or engineering colleges. The orders of the Government do not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have the minimum qualifications prescribed by the University. The Government runs most of the medical and engineering colleges. Excluding the State aided colleges for a moment, the position is as follows : The Colleges run by the Government, having regard to financial commitments and other relevant considerations, can only admit a specific number of students to the said Colleges. They cannot obviously admit all the applicants who have secured the marks prescribed by the University. It has necessarily to screen the applicants on some reasonable basis. The aforesaid orders of the Government only prescribed criteria for making admissions to Colleges from among students who secured the minimum qualifying marks prescribed by the University. Once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection but there can be no doubt that such selection has to be confined to the sources that are intended to supply the material. If the sources have been classified in the manner done in the present case it is difficult to see how that classification has no rational nexus with the object of imparting medical education and also of selection for the purpose. In the case of State of Andhra Pradesh Anr. vs. Lavu Narendranath Ors.etc., 1971(1) SCC 607, a four Judge bench of this Court had to consider whether the entrance test prescribed by the Government for short-listing eligible candidates for being admitted to medical courses in colleges was legally permissible or not. Upholding the power of the State Government on the anvil of the Constitution, Mitter, J., speaking on behalf of the four Judge bench held that : Merely because the University had made regulations regarding the admission of students to its degree courses, it did not mean that any one who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission to such courses of study. If the number of candidates applying for such admission far exceeds the number of seats avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question whether out of the eligible candidates qualified for being considered for admission to medical education imparted in medical colleges of the State, looking to the limited number of seats available, the State could resort to the process of weeding out by laying down further criteria for short-listing such candidates. Upholding such an exercise undertaken by the State in the light of the relevant provisions of the Constitution, B.C.Ray, J., speaking for the court, made the following observations at pages 544 and 545 of the Report as under : The State Government can in exercise of its executive power under Article 162 make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the State Legislature. The impugned order made by the State Government pursuant to its executive powers was valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in Entry 66 of List I. The order in question merely specified a further eligibility qualification for be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of M.P. v. Nivedita Jain admission to medical course was regulated by an entrance test (called Pre-Medical Test). For general candidates, the minimum qualifying marks were 50% in the aggregate and 33% in each subject. For Scheduled Caste/Scheduled Tribe candidates, however, it was 40% and 30% respectively. On finding that Scheduled Caste/Scheduled Tribe candidates equal to the number of the seats reserved for them did not qualify on the above standard, the Government did away with the said minimum standard altogether. The Governments action was challenged in this Court but was upheld. Since it was a case under Article 15, Article 335 had no relevance and was not applied. But in the case of Article 16, Article 335 would be relevant and any order on the lines of the order of the Government of Madhya Pradesh (in Nivedita Jain) would not be permissible, being inconsistent with the efficiency of administration. To wit, in the matter of appointment of Medical Officers, the Government or the Public Service Commission cannot say that there shall be no minimum qualifying marks for Scheduled Caste/Scheduled Tribe candidates, while prescribing a minimum for others. It may be permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The court was concerned with the short-listing of eligible candidates who have got basic qualification for admission to postgraduate medical courses. Reservation of seats for SC and ST candidates in postgraduate courses was not challenged but providing zero percent marks for them for passing the entrance examination for admission to postgraduate course was questioned before the Bench. It was held that once minimum qualifying marks for passing the entrance examination for admission to postgraduate courses was a pre- requisite, in the absence of prescription of any minimum qualifying marks for reserved category of candidates, admitting such students who did not get any marks at the entrance test amounted to sacrificing merit and could not be countenanced. In para 21 of the Report, the following observations are made: In our view, the Government having laid down a system for holding admission tests, is not entitled to do away with the requirement of obtaining the minimum qualifying marks for the special category candidates. It is open to the Government to admit candidates belonging to the special categories even in a case where they obtain lesser marks than the general candidates pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. Both the aforesaid questions were answered in the affirmative in favour of the schemes of reservations. So far as the question of reservation of seats when there is only one post in the discipline is concerned, decision rendered thereon by the three Judge Bench is expressly overruled by a Constitution Bench judgment of this Court in Postgraduate Institute of Medical Education Research, Chandigarh vs. Faculty Association Ors., 1998(4) SCC 1. However, so far as the second question is concerned, in the aforesaid judgment it was held that there can be reservation of seats in postgraduate courses as per the mandate of Articles 15(4) and 16(4). In the present proceedings, there is no dispute on this score. Hence the said judgment on the second point is not required to be reconsidered. However, certain observations are found in para 21 of the report wherein Ramaswamy, J., has observed that diluting of minimum qualifying marks in an entrance test for entry into postgraduate courses for reserved category of candidates cannot be said to be unauthorised or illegal. It has been observed that: Equally, a student, admitted on reservation, is required to pass the same standard p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Entry 25 of List III, has still not spoken on the point nor does the Indian Medical Council Act, 1956 enacted under Entry 66 of List I covers this question. Hence, while providing for entrance test as an additional requirement for eligible candidates for being short-listed in connection with admission to smaller number of seats available in postgraduate courses, it cannot be said that the State authorities in exercise of their constitutional right under Article 15(4) cannot give additional facilities to reserved category of candidates vis-a-vis their requirement of getting minimum qualifying marks at such entrance tests so that seats reserved for them may not remain unfilled and the reserved category of candidates do get adequate opportunity to fill them up and get postgraduate education on the seats reserved for them which in their turn would not detract from the availability of remaining seats for general category candidates. Thus, the observations in para 21 of the aforesaid judgment that there can be lesser qualifying marks for admission to postgraduate courses for reserved category of candidates cannot be found fault with. It is made clear that similar observations for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity for admitting students in any medical college as laid down by the Medical Council of India can the available intake capacity of students be regulated at the admission stage when the number of eligible candidates aspiring to be admitted is larger than the available intake capacity? This question will remain outside the domain of the Medical Council of India under the aforesaid Act. As we have discussed earlier, there being no parliamentary legislation on this aspect even under entry 25 of List III of the Seventh Schedule, the short-listing of eligible candidates for being admitted to the available permitted intake capacity in medical colleges will obviously remain in the domain of State legislature and State executive on the combined reading of entry 25 of List III as well as Article 162 of the Constitution of India. In view of the aforesaid discussion, it therefore, becomes clear that once seats in postgraduate medical courses are reserved for SC, ST and OBC candidates as per Article 15(4) of the Constitution the question as to how admission to limited number of general seats and reserved seats are to be regulated will remain in the domain of the State authorities running th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts of the weaker elements in society. If a provision under Art.15(4) ignores the interests of society, that is clearly outside the scope of Art.15(4). It is extremely unreasonable to assume that in enacting Art.15(4), Parliament intended to provide that where the advancement of the backward classes or the Scheduled Castes and Tribes were concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored. Considerations of national interest and the interests of the community and the society as a whole have already to be kept in mind. Thus, even accepting that when seats are reserved for SC and ST and Other Backward Classes for admission to be given to such reserved category of eligible candidates in postgraduate medical courses, the concession or facility given to them cannot exceed 50% of the facility otherwise available to members of the general public. Keeping the aforesaid ratio of the Constitution Bench in view, therefore, even proceeding on the assumption that 50% of the available seats in postgraduate medical courses in a given year may be reserved for SC,ST and OBCs, further concession that may be given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid observations of the Constitution bench decision of this court. However, a further question survives as to whether in diluting the minimum qualifying marks for reserved category of candidates who are otherwise eligible for being admitted to postgraduate courses on the seats reserved for them, whether Article 335 can get attracted. It is of course true that candidates appointed or admitted to postgraduate medical course have to work as registrars, some posts of the registrars are fully paid posts while others may be stipendary residents posts. However, it is not possible to accept the contention of learned counsel for the Special Leave Petitioners that admission to postgraduate courses would amount to recruitment to any posts. Concept of recruitment to posts is entirely different from the concept of admission to the course of study which in its turn may require the students concerned to take practical training by functioning as registrars attached to wards where patients are treated. Even though such students work as registrars during the course of study as postgraduate students, they essentially remain students and their working as registrars would be a part of practica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Singh. The argument taxes ones credulity. We are totally unable to appreciate how can it be said that admission to postgraduate medical course is a promotional post just because such candidate must necessarily pass MBBS examination before becoming eligible for admission to postgraduate medical course or for the reason that some stipend - it is immaterial whether ₹ 1000 or ₹ 3000 p.m. - is paid to postgraduate students. Admission to such course cannot be equated to appointment to a post and certainly not to an appointment by promotion. The argument is accordingly rejected. (Emphasis supplied) It is obvious that only because a person who has passed MBBS examination and is made eligible for admission to postgraduate course is paid stipend during the course of his studies at postgraduate level, he cannot be said to have been appointed to the post of a registrar. It may be that he has to work as a trainee registrar during the course of his study to obtain practical training but that is a part of the curriculum of studies and not because he is appointed to the post of the registrar after undergoing selection process whereunder a person from open market is recruited as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities, while doing so, the State authorities can completely give a go-by to the concept of merit and can go to the extent of totally dispensing with qualifying marks for SC,ST and OBC candidates and can short-list them for being considered for admission to reserved categories of seats for them in postgraduate studies by reducing the qualifying marks to even zero. That was rightly frowned upon by this court in Sadhana Devis case (supra) as that would not amount to short-listing but on the contrary would amount to completely long listing of such reserved category candidates for the vacancies which are reserved for them and on which they would not be entitled to be admitted if they did not qualify according to even reduced bench marks or qualifying marks fixed for them. As seen earlier, keeping in view the ratio of the Constitution bench of this court in M.R. Balajis case (supra) it must be held that along with the permissible reservation of 50% of seats for reserved category of candidates in institutions imparting postgraduate studies, simultaneously if further concessions by way of facilities are to be given for such reserved category of candidates so as to enable them to ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below 25% nor can it go up to zero as tried to be suggested by Shri P.P.Rao, learned senior counsel for the State of Madhya Pradesh as that would not amount to the process of short-listing but would in fact amount to long listing or comprehensive listing of such reserved category of candidates as seen earlier. Any such attempt to further dilute the qualifying marks or bench marks for reserved category of candidates below 25% of the general passing marks would be violative of the provisions of Article 15(4) as laid down by the Constitution Bench in M.R.Balajis case (supra) and would also remain unreasonable and would be hit by Article 14 of the Constitution of India. Within this sliding scale of percentages between 25% and 50% passing marks appropriate bench marks for passing the entrance test examination can be suitably fixed for SC/ST and OBC candidates as exigencies of the situation may require. But in no case the qualifying marks for any of these reserved categories of students can go below 25% of the general passing marks. Any reserved category candidate who gets less than 25% of marks at the entrance examination or less than prescribed reduced percentage of marks for the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or OBC candidates who have obtained 50% and more marks. These two seats which remain unfilled will go to D and F general category candidates who have obtained more than 50% marks, but who could not be accommodated in the seats available to general category of candidates as the last candidate in the general category who got admission though SC, was having 65% marks. Thus the situation would be the two seats i.e. seat nos. 5 and 6 which are reserved for ST and OBC and were otherwise not available to general category of candidates would not go to eligible and qualified ST and OBC candidates namely, H and J even though they had obtained MBBS degrees and had the basic qualification and eligibility for being admitted to the seats reserved for them. That may affect the real purpose underlying reservation under Article 15(4). Situation No.2: We may now take the alternative situation for consideration : If the minimum qualifying marks are reduced to 25% for all categories of candidates to the rock-bottom permissible limit including SC/ST and other reserved category candidates, then the following picture would emerge : Seat no.1 will go to A, seat no.2 will go to B, seat no.3 will go to C(S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates is only one being no. 4 in the said course of study and is already occupied by E who is a more meritorious SC candidate qua N. Situation No.5: Now let us consider a situation wherein E a SC candidate, who is entitled to reserved category seat no.4 and has excluded D who is a general category candidate who has obtained more marks than him because of such permissible reservation of a seat for him, for any reason does not join the course of study and his seat becomes vacant, then in such a situation, the following picture may emerge in different categories of cases where minimum passing marks are fixed differently : i) In case E is not available and 50% minimum passing marks are fixed for all categories of candidates then seat no.1 will go to A, seat no.2 will go to B., seat no.3 will go to C, seat no.4 would not go to N who is the next eligible SC candidate who has qualified for being admitted but has got less than passing marks at the entrance test. That seat will remain unoccupied and will go to the general category candidate D. Seat no.5 which is reserved for ST person also cannot go to J as he has got less than the passing marks. Seat no.5 will therefore, go to F. Seat no.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occupy the seat reserved for a SC candidate. In such a situation the following picture will emerge : 1 to 3 will go to A,B,C; seat no.4 reserved for SC candidate will go to N and seat no.5 will go to ST candidate J and seat no.6 reserved for OBC candidate will go to H. Resultantly no seat will be left for being made available to general category candidate D and he will get excluded. But as we have seen earlier, if concession or dilution of minimum qualifying marks at the entrance test for admission to postgraduate medical courses is kept within the permissible limit of 50% dilution and can go down only up to 25% minimum qualifying marks for reserved category candidates then N in no case would get in to displace D who is a general category candidate and who had an opportunity to get in vis-a-vis the seat reserved for SC candidate as E the eligible SC candidate is not available at a given point of time. The aforesaid illustration shows that as C (SC candidate) has got the seat in general category on his own merit his occupancy is not to be considered while granting admission to the seat reserved for SC candidate as held by a Constitution bench decision of this Court in R.K. Sabharwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erently unequal and who have fallen victims of societal discrimination require compensatory treatment. Needless to emphasise that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the result which establishes an equilibrium between two sections placed unequally. Same learned Judge at pages 402-403 of the Report considered a passage by Allan P. Sindler in his book Bakke, Defunis and Minority Admissions (The Quest for Equal Opportunity) which dealt with a running race between two persons i.e. one who has his legs shackled and another not. In such a race between unequals it was found necessary to remove the inequality between the two runners by giving compensatory edge to the shackled runner. The learned Judge also noted the submission of learned counsel for the petitioners who demonstrably explained that as unwatered seeds do not germinate, unprotected backward class citizens will whither away. In the earlier Constitution bench judgment in M.R.Balaji vs. State of Mysore (supra), Gajendragadkar, J., at page 467 of the Report, this Court made the following pertinent observations with reference to Article 15(4) : When Art.15(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly meritorious and consequently the common entrance test for admission to postgraduate courses cannot be said to be totally uncalled for. However, because reservation of seats at postgraduate educational level is countenanced, as a logical corollary, to make effective the reservations and with a view to seeing that the reserved category students do not get excluded from getting admitted as far as possible, provision for lesser qualifying marks for reserved category candidates at the common entrance test cannot be said to be totally illegal. However, with a view to seeing that crutches provided to such weaker sections of society do not cripple them for ever, the dilution of passing marks at the common entrance test at which such reserved category candidates appear after obtaining their MBBS degrees from different universities cannot be totally arbitrary and must have a permissible rock-bottom limit below which it cannot go and that is why it is reasonable to hold that when reservation of seats under Article 15(4) in postgraduate medical courses cannot exceed 50% as held by the Constitution bench in M.R. Balajis case (supra) then on the same line of reasoning additional facilities t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio of the aforesaid decision of the Constitution bench would squarely get attracted and would permit separate treatment for students drawn from different sources. It is of course true that in the said case, the Constitution bench was concerned with the nominations made by the Central Government on seats reserved for such nominees. However, that would not whittle down the decision of the Constitution bench to the effect that while imparting education in theory and practice in medical courses of study, the source from which candidates are drawn can be a relevant classificatory criterion and there can be different rules in the matter of selection of candidates drawn from different sources. It is axiomatic that reserved category candidates competing for being selected to the seats reserved for them in postgraduate medical courses as per the mandate of Article 15(4) of the Constitution have to compete inter se with their own colleagues from the same categories and not necessarily have to compete with general category candidates who form entirely a different class. Once such classification is countenanced, as a necessary concomitant, separate provision for reserved category of candida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sates, it is permissible for the State authorities to have common entrance tests and to prescribe minimum qualifying marks for passing such tests to enable the examinees who pass such test to be called for counselling. That would be in addition to the basic qualification by way of MBBS degree. The performance of the candidate concerned during the time he or she undertook the study at MBBS level for ultimately getting the MBBS degree also would be a relevant consideration for the State authorities to be kept in view. 5) It is equally permissible for the State authorities while undertaking the aforesaid exercise of short-listing to fix 50% minimum qualifying marks at the entrance test for general category of candidates and to dilute and prescribe lesser percentage of passing marks for reserved category of candidates as exigencies of situation may require in a given year but in no case the minimum qualifying marks as reduced for reserved category of candidates can go below 25% of passing marks for such reserved category of candidates. In other words, a play is available to the State authorities to prescribe different minimum passing marks for SC/ST and OBC eligible candidates bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter in the medical institutions concerned. ____________________________________________________________ Mrs. Sujata V.Manohar, J. Leave granted in SLP(C) No.12231 of 1997. The following issue formulated by this Court at the commencement of hearing, requires consideration: The question is whether apart from providing reservation for admission to the Post Graduate Courses in Engineering and Medicine for special category candidates, it is open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission under the reserved category. This question certainly requires consideration of the Constitution Bench as it arises and is likely to arise in a number of cases in different institutions of the country and needs to be decided authoritatively keeping in view the observations made in three different two or three-Judge Bench judgments . These judgments are Ajay Kumar Singh Ors. v. State of Bihar Ors. ([1994] 4 SCC 401), Dr. Sadhna Devi Ors. v. State of U.P. Ors. ([1997] 3 SCC 90) and Post Graduate Institute of Medical Education Research, Chandigarh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Pradesh Post Graduate Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1997. The petitioners have now amended the said writ petition to challenge this Act. For admissions effected in 1998, the State of U.P. again prescribed a cut-off percentage of 20% marks for the reserved category candidates. Learned counsel for the State of U.P. has further stated that for the current year's admission, i.e. for admission to the P.G.M.E.E. 1999, the State has introduced a Bill in the Legislative Assembly prescribing the same cut-off percentage of 20% marks for the reserved category candidates. The lower percentage of qualifying marks prescribed for the scheduled caste, scheduled tribe and backward class candidates are in conjunction with the following reservation of seats at the PGMEE: Scheduled Castes : 21%, Scheduled Tribes : 2%, Backward Classes : 27% In the State of Madhya Pradesh also a common entrance examination is held for admission to the Post Graduate Courses in Medicine. Under the Madhya Pradesh Medical and Dental Post Graduate Entrance Examination Rules, 1997, certain seats were reserved for the Scheduled Caste, Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enched and clearly perceived social inequalities. That is why Article 16(4) permits reservation of appointments or posts in favour of any backward class which is not adequately represented in the services under the State. Reservation is linked with adequate representation in the services. Reservation is thus a dynamic and flexible concept. The departure from the principle of equality of opportunity has to be constantly watched. So long as the backward group is not adequately represented in the services under the State, reservations should be made. Clearly, reservations have been considered as a transitory measure that will enable the backward to enter and be adequately represented in the State services against the backdrop of prejudice and social discrimination. But finally, as the social backdrop changes ? and a change in the social backdrop is one of the constitutional imperatives, as the backward are able to secure adequate representation in the services, the reservations will not be required. Article 335 enters a further caveat. While considering the claims of Scheduled Castes and Scheduled Tribes for appointments, the maintenance of efficiency of administration shall be kept i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltimate national interest. At the same time, the programmes and policies cannot be unreasonable or arbitrary, nor can they be executed in a manner which undermines other vital public interests or the general good of all. All public polices, therefore, in this area have to be tested on the anvil of reasonableness and ultimate public good. In the case of Article 16(4) the Constitution makers explicitly spelt out in Article 335 one such public good which cannot be sacrificed, namely, the necessity of maintaining efficiency in administration. Article 15(4) also must be used, and policies under it framed, in a reasonable manner consistently with the ultimate public interests. In the case of M.R. Balaji Ors. v. State of Mysore ([1963] Suppl. 1 SCR 439 at pages 466-467), a Constitution Bench of this Court considered this very question relating to the extent of special provisions which it would be competent for the State to make, under Article 15(4). This Court accepted the submission that Article 15(4) must be read in the light of Article 46 and that under it, the educational and economic interests of the weaker sections of the people can be promoted properly and liberally, to establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest of the community as a whole . The Court also said that while considering the reasonableness of the extent of reservation one could not lose sight of the fact that the admissions were to institutes of higher learning and involved professional and technical colleges. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation of seats in all technical, medical or engineering colleges or institutions of that kind. (Page 468) Therefore, consideration of national interest and the interests of the community or society as a whole cannot be ignored in determining the reasonableness of a special provision under Article 15(4). In the case of Dr. Jagdish Saran Ors. v. Union of India ([1980] 2 SCC 768), reservation of 70% of seats for the local candidates in admissions to the Post Graduate Medical Courses by the Delhi University was struck down by this Court. While doing so, Krishna Iyer J. speaking for the Court spelt out the ambits of Articles 14 and 15. He said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust not remain mere ideal indentation but it must become a living reality for the large masses of people............ It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed in order to bring about real equality. The Court after considering institutional and residential preferences for admission to the M.B.S.S. course, said that different considerations would prevail in considering such reservations for admission to the Post Graduate Courses such as M.D., M.S. and the like. It said, (at page 691) There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. Quoting the observation of Justice Krishna Iyer in Dr. Jagdish Saran case (supra) the Court said, This proposition has far greater importance when we reach the higher levels of education like Post Graduate Courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reservations at the Post Graduate level in Medicine. We are concerned with another special provision under Article 15(4) made at the stage of admission to the Post Graduate Medical Courses, namely, providing for lesser qualifying marks or no qualifying marks for the members of the Scheduled Castes and Scheduled Tribes for admission to the Post Graduate Medical Courses. Any special provision under Article 15(4) has to balance the importance of having, at the higher levels of education, students who are meritorious and who have secured admission on their merit, as against the social equity of giving compensatory benefit of admission to the Scheduled Caste and Scheduled Tribe candidates who are in a disadvantaged position. The same reasoning which propelled this Court to underline reasonableness of a special provision, and the national interest in giving at the highest level of education, the few seats at the top of the educational pyramid only on the basis of merit and excellence, applies equally to a special provision in the form of lower qualifying marks for the backward at the highest levels of education. It is of course, important to provide adequate educational opportunities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is in public interest that we promote these skills. Such high degrees of skill and expert knowledge in highly specialised areas, however, cannot be acquired by anyone or everyone. For example, specialised sophisticated knowledge and skill and ability to make right choices of treatment in critical medical conditions and even ability to innovate and device new lines of treatment in critical situations, requires high levels of intelligent understanding of medial knowledge or skill and a high ability to learn from technical literature and from experience. These high abilities are also required for absorbing highly specialised knowledge which is being imparted at this level. It is for this reason that it would be detrimental to the national interest to have reservations at this stage. Opportunities for such training are few and it is in the national interest that these are made available to those who can profit from them the most viz. the best brains in the country, irrespective of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this purpose. In the premises the special provisions for SC/ST candidates whether reservations or lower qualifying marks - at the speciality level have to be minimal. There cannot, however, be any such special provisions at the level of super specialities. Entrance Examination for post-graduate courses and qualifying marks: When a common entrance examination is held for admission to postgraduate medical courses, it is important that passing marks or minimum qualifying marks are prescribed for the examination. It was, however, contended before us by learned counsel appearing for the State of Madhya Pradesh that there is no need to prescribe any minimum qualifying marks in the common entrance examination. Because all the candidates who appear for the common entrance examination have passed the M.B.B.S. examination which is an essential pre-requisite for admission to postgraduate medical courses. The PGMEE is merely for screening the eligible candidates. This argument ignores the reasons underlying the need for a common entrance examination for post-graduate medical courses in a State. There may be several universities in a State which conduct M.B.B.S. courses. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he need to provide for some room for the backward even at the stage of specialised post-graduate education which is one step below the super specialities. The submission, therefore, that there need not be any qualifying marks prescribed for the common entrance examination has to be rejected. We have, however, to consider whether different qualifying marks can be prescribed for the open merit category of candidates and the reserved category of candidates. Normally passing marks for any examination have to be uniform for all categories of candidates. We are, however, informed that at the stage of admission to the M.B.B.S. course, that is to say, the initial course in medicine, the Medical Council of India has permitted the reserved category candidates to be admitted if they have obtained the qualifying marks of 35% as against the qualifying marks of 45% for the general category candidates. It is, therefore, basically for an expert body like the Medical Council of India to determine whether in the common entrance examination viz. PGMEE, lower qualifying marks can be prescribed for the reserved category of candidates as against the general category of candidates; and if so, how much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. There is a great deal of difference in the knowledge and skills of those passing with a high percentage of marks and those passing with a low percentage of marks. The reserved category of students who are chosen for higher levels of university education must be in a position to benefit and improve their skills and knowledge and bring it to a level comparable with the general group, so that when they emerge with specialised knowledge and qualifications, they are able to function efficiently in public interest. Providing for 20% marks as qualifying marks for the reserved category of candidates and 45% marks for the general category of candidates, therefore, is contrary to the mandate of Article 15(4). It is for the Medical Council of India to prescribe any special qualifying marks for the admission of the reserved category candidates to the post-graduate medical courses. However, the difference in the qualifying marks should be at least the same as for admission to the under-graduate medical courses, if not less. Learned senior counsel Mr. Bhaskar P. Gupta for the intervenors drew our attention to an interesting study done by R.C. Davidson in relation to the affirmative acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of admission, on the different categories of the students who are admitted, and unless the differences are kept to a minimum, such differences will not disappear in the course of time if the course of study is a specialised course such as a post-graduate course. Who should decide the qualifying marks and will it affect the standard of education: Learned counsel for the States of Uttar Pradesh and Madhya Pradesh contend that it is for the States to decide the qualifying marks which should be prescribed for the reserved category candidates at the PGMEE. It is a matter of state policy. The Medical Council of India cannot have any say in prescribing the qualifying marks for the PGMEE. The two States have contended that it is the State which controls admissions to the post-graduate courses in medicine. It is for the State to decide whether to provide a common entrance examination or not. This examination may or may not have any minimum qualifying marks or it may have different qualifying marks for different categories of candidates. It is, therefore, not open to any other authority to interfere with the rules for admission to the post-graduate medical courses in each Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to lay down the rules and norms for admission; and that these do not have any bearing on the standard of education. In P. Rajendran v. State of Madras Ors. ([1968] 2 SCR 786), a Constitution Bench of this Court considered the validity under Articles 14 and 15(1), of district- wise reservations made for seats in the medical colleges. In that case, the Act in question prescribed eligibility and qualifications of candidates for admission to the medical colleges. The Court observed, So far as admission is concerned, it has to be made by those who are in control of the colleges - in this case, the Government. Because the medical colleges are Government colleges affiliated to the university. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it, subject to the rules of the university as to eligibility and qualifications. This was what was done in these cases and, therefore, the selection cannot be challenged on the ground that it was not in accordance with the University Act and the rules framed thereunder. This Court, therefore, upheld the additional criteria framed by the State for admission which were not inconsisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Ors. etc. ([1971] 3 SCR 699), this Court considered the validity of a test held by the State Government for admission to medical colleges in the State of Andhra Pradesh. The Andhra University Act, 1926 prescribed the minimum qualification of passing HSC, PUC, I.S.C. etc. examinations for entry into a higher course of study. The Act, however, did not make it incumbent upon the Government to make their selection on the basis of the marks obtained by the candidates at these qualifying examinations. Since the seats for the MBBS course were limited, the Government, which ran the medical colleges, had a right to make a selection out of the large number of candidates who had passed the HSC, PUC or other prescribed examinations. For this purpose the State Government prescribed an entrance test of its own and also prescribed a minimum 50% of marks at the qualifying examination of HSC, ISC, PUC etc. for eligibility to appear at the entrance test. The Court said that merely because the Government supplemented the eligibility rules by a written test in the subjects with which the candidates were already familiar, there was nothing unfair in the test prescribed. Nor did the test militate ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to post-graduate medical courses. The Court considered the question whether the State can impose qualifications in addition to those laid down by the Medical Council of India and the Regulations framed by the Central Government. The Court said that any additional or further qualifications which the State may lay down would not be contrary to Entry 66 of List-I since additional qualifications are not in conflict with the Central Regulations but are designed to further the objective of the Central Regulation which is to promote proper standards. The Court said, (at page 552) The State Government by laying down the eligibility qualification, namely, the obtaining of certain minimum marks in the M.B.B.S. examination by the candidates has not in any way encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the central power provided in the Entry 66 of List-I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification. None of these judgments lays down that any reduction in the eligibility criteria would not impinge on the standards covered by Entry 66 of List-I. All these judgments dealt with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the standard of education in the medical colleges. Of course, once the minimum standards are laid down by the authority having the power to do so, any further qualifications laid down by the State which will lead to the selection of better students cannot be challenged on the ground that it is contrary to what has been laid down by the authority concerned. But the action of the State is valid because it does not adversely impinge on the standards prescribed by the appropriate authority. Although this judgment is referred to in the Constitution Bench judgment of Indra Sawhney Ors. v. Union of India Ors. (supra) the question of standards being lowered at the stage of post-graduate medical admissions was not before the court for consideration. The court merely said that since Article 16 was not applicable to the facts in Kumari Nivedita Jain's case (supra), Article 335 was not considered there. Fort post- graduate medical education, where the students are required to discharge duties as doctors in hospitals, some of the considerations underlying Articles 16 and 335 would be relevant as hereinafter set out. But that apart, it cannot be said that the judgment in Nivedita Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, disagree with the reasoning and conclusion in Ajay Kumar Singh Ors. v. Stage of Bihar Ors. (supra) and Post Graduate Institute of Medical Education Research, Chandigarh Ors. v. K.L. Narasimhan Anr. (supra). The Indian Medical Council Act, 1956 and standards: Has the Union Government, by Statute or Regulations laid down the standards at the post-graduate level in medicine in the exercise of its legislative powers under Entry 66, List I? the appellants/petitioners rely upon the Indian Medical Council Act, 1956 and the Regulations framed under it. The respondents contend that, in fact, no standards have been laid down by the Medical Council of India. Also the standards laid down are only directory and not mandatory. Now, one of the objects and reasons contained in the Statement of Objects and Reasons accompanying the Indian Medical Council Act of 1956 is: .................(d) to provide for the formation of a Committee of Post-Graduate Medical Education for the purpose of assisting the Medical Council of India in prescribing standards of post-graduate medical education for the guidance of universities and to advice universities in the matter of securing uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After setting out the various courses, both degree and diploma, available for post-graduate medical education, the Regulations contain certain general provisions/conditions some of which need to be noted. Condition 4 deals with the student-teacher ratio. It says: The student-teacher ratio should be such that the number of post-graduate teachers to the number of post-graduate students admitted per year, be maintained at one to one. For the proper training of the post- graduate students there should be a limit to the number of students admitted per year. For this purpose every unit should consist of at least three full time post-graduate teachers and can admit not more than three students for post- graduate training per year. If the number of post-graduate teachers in the unit is more than three then the number of students can be increased proportionately. For this purpose, one student should associate with one post- graduate teacher . Condition 5 says: The selection of post-graduates both for degree and diploma courses should be strictly on the basis of academic merit. Condition 6 is as follows:- Condition 6: The training of post-graduates for degree should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese Regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List-III, make rules and regulations which are in conflict with or adversely impinge upon the Regulations framed by the Medical Council of India for post- graduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List-I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List-III is subject to Entry 66 of List-I. Secondly, it is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the Concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List-III will also be subject to any existing relevant provisions made in that connection by the Union Government subject, of course, to Article 254. In Ajay Kumar Singh Ors. v. State of Bihar Ors. (supra), this Court examined the powers of the Indian Medical Council under Section 20 of the Indian Medical Council Act, 1956 and held that the power of the Council to prescribe standards of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the Committee is unsatisfactory the Medical Council may withdraw recognition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19A enables the Council to prescribe minimum standards of medical education required for granting recognised medical qualifications other than post-graduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of post-graduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. We, therefore, disagree with and overrule the finding given in Ajay Kumar Singh Ors. v. State of Bihar Ors. (supra), to the effect that the standards of post-graduate medical education prescribed by the Medical Council of India are merely directory and the universities are not bound to comply with the standard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the minimum qualifying marks for the admission of students in the reserved category can be less than the minimum qualifying marks for the general category students at the post-graduate level; and if so, to what extent. Even if we accept the contention of the respondents that for the reserved category candidates also, their inter se merit is the criterion for selection, although for the reserved category of candidates lower minimum qualifying marks are prescribed, the merit which is envisaged under the Indian Medical Council Act or its Regulations is comparative merit for all categories of candidates. For admission to a post-graduate course in medicine, the merit criterion cannot be so diluted by the State as to affect the standards of post-graduate medical education as prescribed under the Regulations framed by the Indian Medical Council. It is for the Indian Medical Council to consider whether lower minimum qualifying marks can be prescribed at the post-graduate level for the reserved category candidates. We have already opined that the minimum qualifying marks of 20% as compared to 45% for the general category candidates appear to be too low. This would make it difficult for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible and if so to what extent. But in the meanwhile at least the norms which are prescribed for admission to the M.B.B.S. courses ought not to be lowered at the post-graduate level. The lowering of minimum qualifying marks for admission to the M.B.B.S. courses has been permitted by the Indian Medical Council upto 35% for the reserved category as against 45% for the general category. The marks cannot be lowered further for admission to the post-graduate medical courses, especially when at the super speciality level it is the unanimous view of all the judgments of this Court that there should be no reservations. This would also imply that there can be no lowering of minimum qualifying marks for any category of candidates at the level of admission to the super-specialities courses. In Mohan Bir Singh Chawla v. Punjab University, Chandigarh Anr. (supra) also this Court has taken the view that the higher you go the less should be the extent of reservation or weightage and it would be dangerous to depreciate merit and excellence at the highest levels. In S. Vinod Kumar Anr. v. Union of India Ors. ([1996] 6 SCC 580) this Court while considering Articles 16(4) and 335 held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Council of India since it affects standards of post-graduate medical education. Even if minimum qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the general category candidates at this level. The percentage of 20% for the reserved category and 45% for the general category is not permissible under Article 15(4), the same being unreasonable at the post-graduate level and contrary to public interest. 4. At the level of admission to the super speciality courses, no special provisions are permissible, they being contrary to national interest. Merit alone can be the basis of selection. In the premises, the impugned Uttar Pradesh Post Graduate Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1997 and G.O. dated 7.6.1997 of the State of Madhya Pradesh are set aside. However, students who have already taken admission and are pursuing courses of post-graduate medical study under the impugned Act/G.O. will not be affected. Our judgment will have prospective applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions should be entirely on the basis of open merit. The ambit of special provisions under Article 15(4) has already been considered by us. While the object of Article 15(4) is to advance the equality principle by providing for protective discrimination in favour of the weaker sections so that they may become stronger and be able to compete equally with others more fortunate, one cannot also ignore the wider interests of society while devising such special provisions. Undoubtedly, protective discrimination in favour of the backward, including scheduled castes and scheduled tribes is as much in the interest of society as the protected groups. At the same time, there may be other national interests, such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests. In the case of Dr. Jagdish Saran Ors. v. Union of India (supra) this Court observed that at the highest scales of speciality, the best skill or talent must be hand-picked by selection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special provisions which are made at this level of education have to be consistent with the national interest in promoting the highest levels of efficiency, skill and knowledge amongst the best in the country so that they can contribute to national progress and enhance the prestige of the nation. The same view has been upheld in Dr. Fazal Ghafoor v. Union of India Ors. ([1988] Supp. SCC 794) and Mohan Bir Singh Chawla v. Punjab University, Chandigarh, Anr. ([1997] 2 SCC 171). The Post-graduate Institute of Medical Education and Research, Chandigarh, has been set up as an institution of national importance. The Post-graduate Institute of Medical Education and Research, Chandigarh Act, 1966, under Section 2 provides that the object of the said institution is to make the institution one of national importance. Section 12 sets out the objects of the Institute. These are as follows:- Objects of Institute: The objects of the Institute shall be - (a) to develop patterns of teaching in under- graduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical education; (b) to bring together, as far as may be, in one place educa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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