TMI Blog1981 (9) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... adhya Pradesh there are six Medical Colleges affiliated to different Universities in the State. The total number of seats in all these Colleges is 720. By an order dated 2nd April, 1980 the State Government made rules for admission to Medical Colleges, the College of Dentistry Indore and Government Ayurvedic Colleges of the State and the said Rules are called Rules for Admission into the Medical, Dentistry and Ayurvedic Colleges in Madhya Pradesh (hereinafter referred to as the Rules). These Rules were made in exercise of the executive power of the State and these Rules are not statutory. By and under Rule 7 of the Rules, the State Government has reserved 15% seats for each of the categories of the Scheduled Castes and Scheduled Tribes candidates. That means, out of 720 seats, 108 seats are reserved for the Scheduled Castes candidates; and the same number, that is, 108 seats are also reserved for the candidates belonging to the category of Scheduled Tribes. By and under the same Rules, 15% seats are reserved for women candidates and seats not exceeding 3% are reserved for the children of military personnel. Under Rule 8, some further reservations have been made and under this Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Note (i) to Rule 20 made a relaxation of 5% in terms thereof and thereafter 7 more candidates in the category gory of Scheduled Castes and one more in the category of Scheduled Tribes got admitted. Thus oat of 108 seats reserved for each category of the Scheduled Castes and Scheduled Tribes, only 25 seats could be filled in the category of Scheduled Castes and three in the category of Scheduled Tribes. As only a very few candidates of these two categories could get admitted into Medical Colleges and a large number of seats reserved for them could not be filled up by the candidates of these two categories on the basis of the result of the examination even after relaxation had been made in terms of the provisions contained in Note (i) to Rule 20, the State Government passed an order on the 9th September, 1980 completely relaxing the conditions relating to the minimum qualifying marks for these two categories. the order dated 9th September, 1980, the validity of which has been questioned in the Writ Petitions filed by Nivedita Jain in the High Court, is to the following effect:- The Government has taken a decision that the candidates belonging to the Scheduled Castes and Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e risk of being derecognised; and (2) that the order of the Government will have the effect of allowing less qualified and less deserving candidates to fill up the seats and would, therefore, destroy equality and violate Arts. 14 and 15 of the Constitution. It appears from the judgment of the High Court that another ground, namely, that the order dated 9th September, 1980 was violative of ordinance 94 of the University of Jabalpur, was also urged before the High Court, though this ground does not appear to have been taken in the petition. The High Court accepted the contention of the writ petitioner that the order in question violated Regulations of the Council holding that the executive power of the State under Art. 162 cannot be so exercised as to over-ride the statutory provisions, more so when the said provision is in a field occupied by the Union List. The executive power can be used to supplement a law but not to supplant it The High Court further held that the total relaxation of minimum marks for the candidates belonging to these categories cannot be supported under Art. ] S(4) being violative of the Regulations which have the force of law. Dealing with the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as will make such reservations effective and will enable the candidates belonging to the categories of Scheduled Castes and Scheduled Tribes to get the benefits of such reservations, in discharge of the duties and obligation of the State, to the members of those communities and other backward communities. It is his submission that in the instant case when the State found that the qualifying conditions laid down for the admission of the candidates belonging to those communities had in reality resulted in denial of the opportunities sought to be given to them, the Government considered it expedient to relax the conditions to enable the candidates of those communities to get the admission to medical colleges for prosecuting their studies to become qualified medical practitioners. Mr. Phadke has contended that the provisions contained in Regulation II for violation of which the order in question has been struck down, are directory in nature and they are not mandatory in character, and, as such, they do not have any binding effect; and it is open to the State to make Rules which may not be in accord with the provisions contained in the said regulation for admission to the medical colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and scientific and technical institutions , is not intended to deal with the question of selection of candidates and item 25 in List III which provides for education including technical education, medical education in universities subject to provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour , is broad enough to include all matters relating to education subject to the provisions of entries 63, 64, 65 and 66 of List I and empowers the State to frame rules relating to selection of candidates for admission. Mr. Phadke has submitted that the Council must have been aware of the limitations of its power in the matter of selection of candidates for admission; and, the Council has, therefore, made only a recommendation in this regard and has not made any mandatory provision about it. In this connection Mr. Phadke has referred to the language used in Regulation II and has contrasted the same with the language used in Regulation I of the Regulations. Mr. Phadke submits that as Regulation II is only in the nature of a recommendation and directory, any rules framed by the State Government regarding selection of candidates in contravention of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Act in support of his submission that regulating selection of students for admission to medical colleges justly comes within the jurisdiction and function of the Council. In this connection, Mr. Kacker has also referred to the decision of this Court in the case of State of Kerala v. Kumari T.P. Roshana and Anr. (1) and he has relied on the following observations at p. 984:- The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses . Mr. Kacker submits that in the instant case there is no dispute that the order of the Government dated 9th September 1980 in question clearly contravenes Regulation II of the Council. Mr. Kacker has also drawn our attention to entry 66 of the Union List which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that falls for determination is whether the order in question which contravenes Regulation II is liable to be struck down on the ground that the State Government by an executive order is purporting to override Regulation II of the Council. For a proper determination of the question it is necessary to understand the true nature of the said Regulation II and to consider whether the said Regulation is of mandatory character with statutory force. The contention of the appellants, as we have earlier noticed, is that Regulation II is only in the nature of a recommendation and is directory and has no statutory force; and the contention of the Respondent Nivedita Jain, on the other hand, has been that the said Regulation is mandatory in character with statutory force. For a proper appreciation of these rival contentions, it becomes necessary to analyze and understand the scheme of the Act and the Regulations framed thereunder. The Act was enacted to provide for reconstitution of the Medical Council of India and the maintenance of Medical Register for India and for matters connected therewith . S. 2 deals with definitions and defines Regulation in sub- sec. (i) to mean a Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the event of any representation being made to the Central Government by the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated and the State Government shall forward it along with such remarks as it may make to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government; and on receipt of the explanation, if any within the stipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government and the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manner laid down in sub-sec. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows : (1) The Council may prescribe the minimum standards A of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in India. (2) Copies of the draft regulations and of all su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... ... ... (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 qualifications; (k) the standards of staff, equipment, accommodation, training and other facilities for medical education; (I) the conduct of professional examinations, qualifications of examiners, and the conditions of admission to such examinations; (m) the standard of professional conduct and etiquette and code of ethics to be observed by medical practitioners; and (n) any matter for which under this Act provision may be made by regulations. S. 34 of the Act which happens to be the last section repeals the earlier Indian Medical Council Act of 1933, providing for the usual saving clause. An analysis of the various sections of the Act indicate that the main purpose of the Act is to establish Medical Council of India, to provide for its constitution, composition and its functions; and the main function of the Council is to maintain the medical register o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medical practitioners are entitled to seek admission into a Medical College or Institution. As to how the selection has to be made out of the eligible candidates for admission into the Medical College is a matter which has necessarily to depend on circumstances and conditions prevailing in particular States. Though the question of eligibility for admission into the medical curriculum may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to undergo the medical course does not appear to come within the purview of the Council. The observations of the Supreme Court in the case of State of Kerala v. Kumari T.P. Roshana and Ors. (supra) quoted earlier relate to the question of qualification or eligibility of students for admission into a medical college and the said observations are not intended to apply to a case of selection of students for admission into a Medical College out of the eligible candidates. As the number of candidates seeking admission to Medical Colleges largely exceed the number of vacancies available to such candidates for admission, some kind of procedure has to be evolved for such selecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission or will complete the age on or before 31st December of the year of his admission to the Ist M.B.B.S. Courses. Provided that the candidates who are admitted directly to the 5-1/2 years integrated M.B.B.S. course should have completed the age of 16 years at the time of admission or will complete this age on 31st December of the year of admission to the pre-medical course. (ii) he has passed: (a) the Intermediate examination in Science of an Indian University/Board or other recognised examining body with Physics, Chemistry and Biology, which shall include a practical test in these subjects; OR (b) the pre-professional/pre-medical examination with physics, chemistry and biology, after passing either the higher secondary school examination, or the pre-university or an equivalent examination. The pre-professional pre- medical examination shall include a practical test in these subjects: OR (c) the first year of the three years degree course of a recognised university, with physics, chemistry and biology, including a practical test in these subjects provided the examination is University Examination.'. OR (d) B. Sc. examination of an Indian University. Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the administrative control of one authority), a competitive entrance examination should be held so as to achieve a uniform evaluation due to the variation of the standard of qualifying examinations conducted by different agencies. (c) Where there are more than one university/board con- ducting the qualifying examination then a joint selection board be constituted for all the colleges. (d) A competitive entrance examination is absolutely necessary in the case of institutions of All India character. (e) To be eligible for competitive entrance examination, candidate must have passed any of the qualifying examinations as enumerated under the head-note Admission to Medical Course. Provided that a candidate who has appeared in a qualifying examination the result of which has not been a declared, may be provisionally allowed to take up the competitive examination and in case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination. Provided also that a candidate for admission to the medical course must have obtained not less than 50% of the total marks in English and Science sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l colleges out of the eligible candidates is a h problem more or less common to all the States, the Council might have considered it desirable to recommend certain guidelines which may be followed in the matter of selection of students out of the eligible candidates for admission into medical colleges. It is well known that all over India candidates who aspire to get admission into medical colleges and who are otherwise eligible or qualified for admission to medical courses on the basis of the provisions contained in Regulation I of the Council, cannot all be admitted into the medical college or institution for dearth of seats. By way of solution of this problem, the Council appears to have thought it fit to suggest the procedure which will have the effect of selecting such candidates on the basis of merit only. The procedure suggested is intended to do away with nepotism and favouritism and any unfair practice in the matter of such admission, as the procedure recommends merit to be the criterion. The Council itself appears to have apprehended that what is contained in Regulation II is merely in the nature of a recommendation and this is evident from the language used in Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government. Entry 66 in List I (Union List) of the 7th Schedule to the Constitution relates to co-ordination and determination of standard in institutions for higher education or research and scientific and technical institutions . This entry by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst candidates who are eligible for such A admission. On the other hand, entry 25 in List II (Concurrent List) of the same Schedule speaks of- education, including technical education, medical education in Universities, subject to entries 63, 64, 65 and 66 of List l .. vocational and technical training of labour . This entry is wide enough to include within its ambit the question of selection of candidates to medical colleges and there is nothing in the entries 63, 64 and 65 of List I to suggest to the contrary. We are, therefore, of the opinion that Regulation 11 of the Council which is merely directory and in the nature of a recommendation has no such statutory force as to render the order in question which contravenes the said regulation illegal, invalid and unconstitutional. C In the case of Slate Andhra Pradesh an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Kerala and Anr. v.N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules which required a lower division clerk to pass a departmental test within a period of two years in the interest of the employees belonging to Scheduled Castes and Scheduled Tribes was not unconstitutional or illegal. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable and the said relaxation constitutes no violation of Art. 15 (l) and (2) of the Constitution. The said relaxation also does not offend Art. 14 of the Constitution. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into medical colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes categories who were otherwise qualified and eligible to seek admission into medical colleges only in relation to seats reserved for them. The respondent Nivedita Jain and other deserving candidates may feel that because of the reservations they are being depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose belonging to these categories. It is eminently desirable that some kind of minimum standard for selection for admission to medical colleges apart from eligibility should be there. It has been represented to us by the Counsel for the State that the State has, in fact, prescribed such a minimum standard for selection of even the candidates belonging to Scheduled Castes and Scheduled Tribes into medical colleges. The only other ground that was urged in support of the case of the writ petitioners that the order in question is illegal and invalid, is that the order violates ordiance 54 of the University of Jabalpur. No such ground has been taken in the writ petition. Though the High Court has considered this argument, the High Court does not appear to have come to any definite finding on this question. This question, in the instant case, cannot be said to be a question of pure law. In the affidavit which has been filed on behalf of the University, it has been stated that the ordinance 54 has not been adhered to. In the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not entitled to urge this point and rely on any alleged contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
