DR. PREETI SRIVASTAVA AND ANR. ETC. ETC. v. THE STATE OF MADHYA PRADESH AND ORS.

Judgment

, (dissenting), Medical Council of India Regulations cannot curtail power of States from f1Xing minimum qualifying 249 H 250 SUPREME COURT REPORTS [1999) SUPP. 1 S.C.R. A marks differently for reserved category candidates; full play is available to state authorities to exercise legislative or executive power as field is not occupied by any legislation till date; Held, further, Medical Council of India regulations do not cover the question and though not binding, cannot be ignored by State authorities while short-listing eligible candidates for B admission to post-graduate medical courses. Constitution of India, Articles 15 (4) and 16(4) Post-Graduate Institute of Medical Education and Research, Chandigarh Act I966-Ss.2, 13, 32 r/ w Post-Graduate Institute of Medical Education and Research, Chandigarh Regulations 1967, Regulation 27-Reservation of 20% of seats for SC & ST C candidates for admission to super speciality courses of D.M .and MC.H Held, reservation at super-speciality level being inconsistent with constitutional mandate under Articles 15(4) and 16(4) impermissible ; merit alone can be basis of selection. The State of Uttar Pradesh (U.P) prescribed a Post-Graduate Medical D. Entrance Examination (PGMEE) for admission to Post Graduate Degree/ Diploma courses in medicine. By G.O. dated October 11, 1994 the cut-off percentage was fixed as 45% marks in the PG MEE for admission of the general category candidates and 35% for the reserved category candidates viz., Scheduled Castes (SC), ·scheduled Tribes (ST). Thereafter, by another G.O. dated August 31, 1995 the State ofU.P completely did away with a cut- E off percentage of marks in respect of the reserved category candidates. This G.O. of August 31, 1995 was challenged liefore this Court in Dr. Sadhna Devi v. State of UP., by its judgment reported in 11997] 2 SCC 90 this Court held that while laying down minimum qualifying marks for admission to the Post Graduate Courses, it was not open to the Government to say that there F will be no minimum qualifying marks for the reserved category of candidates. This Court struck down the G.O. dated August 31, 1995. Thereafter the State of U.P. issued another G.O. dated April 2, 1997 under which the cut-off percentage of marks for the reserved category · candidates was restored at 35%. However, the State ofU.P. moved an application G before this Court in which it prayed that it should be given the liberty to reduce the cut-off percentage from 35% to 20% for the reserved category candidates who appear in the PGMEE for 1997. Without waiting for a decision, by an Ordinance date June 15, 1997, the State ofU.P. reduced the minimum qualifying marks for the reserved category candidates appearing in the PG MEE 1997 from 35% to 20%. Later the Ordinance, which was challenged H in the present petition, was replaced by the Uttar Pradesh Post Graduate DR. PREE TI SRIVASTAVA v. ST A TE 251 Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and A Other Backward Classes) Act 1997. - Also under challenge in writ petitions before this court was the G.O. dated June 7, 1997 by the State of Madhya Pradesh prescribing the following minimum percentage of qualifying marks for the reserved category candidates to make them eligible for counselling and admission to the Post Graduate B MediciJI Courses:-SC: 20%, ST: 15% and OBC: 40.%. In the petition seeking review of this court's decision in Post-Graduate Institute of Medical Education & Research, Chandigarh and Ors. v. KL. Narasimhan and Anr., [19971 6 SCC 283, the issue involved was the permissibility of reservations in admissions to super-speciality courses in C medicine. Allowing the writ. petitions and review petitions, this court HELD: Per majority:

1.1. The Uttar Pradesh Post Graduate Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1997 and the G.O. dated June 7, 1997 of the State of Madhya Pradesh are set aside. [287-AJ D

1.2. The percentage of 20% for the reserved category and 45% for E the general category is not permissible under Article 15(4) the same being unreasonable at the post-graduate level and contrary to public interest. Even if minimum qualifying marks can be lowered for the reserved categnry 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. [286-G; FJ F Dr. Sadhna Devi and Ors. v. State of UP. and Ors., (1997) 3 SCC 90, affirmed. Ajay Kumar Singh and Ors. v. State of Bihar and Ors., [1994) 4 SCC 401 and Post Graduate Institute of Medical Education and Research, G Chandigarh v. KL. Narasimhan, [19971 6 SCC 283, overruled. M.R. Balaji v. State of Mysore, (1963) Suppl. I SCR 439; Dr. Jagdish Saran v. Union of India, ( 1980) 2 SCC 768; Indra Sawhney and Ors. v. Union of India and Ors., [1992) Supp. 3 SCC 217; Mohan Bir Singh Chawla v. Punjab Universit:.'. Chandigarh, [199712 SCC 171; S Vinod Kumar v. Union H • 252 SUPREME COURT REPORTS [1999) SUPP. l S.C.R. A of India, [1996] 6 SCC 580 and Dr. Fazal Ghafoor v. Union of India, [1988] Supp. SCC 794, referred to. 'Completing Equalities ' by Marc Galanter, referred to.

1.3. There is a great deal of difference in the knowledge and skills of B those passing with a high percentage of marks and those passing with a low percentage of marks. The reserved categ1,>ry 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 specialized knowledge and c qualifications, they are able to function efficiently in public interest. [268-G-H; 269-A]

2.1. Whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the post-graduate level of medical education is a question which must be decided by the Medical Council of D India since it affects standards of post-graduate medical education. (286-E] State of Madhya Pradesh v. Kumari Nivedita Jain, [1981] 4 SCC 296; Medical Council of India v. State of Karnataka, [1998] 6 SCC 131 and State of Kera/av. Kumari T.P. Roshana. [1979) 1 SCC 572, referred to E

2.2. The States cannot, in the exercise of power under Entry 25 of List- Ill, 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 medkal 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 F of States under Entry 25 of List-Ill is subject to Entry 66 of List-I. [281-D-E] P. Rajendrai1 v. State of Madras, [1968) 2 SCR 786; Chitra Ghosh v. Union of India [1970[ 1 SCR 413; State of Andhra Pradesh v. Lavu Narendranath; [1971) 3 SCR 699 and Dr. Ambesh Kumar v. Principal, G l.l.R.M. Medical College, Meerut, [1986] Supp. SCC 543, referred to.

2.3. A State has the right to control education including medical education so long as the field is not occupied by any Union Legislation. The State cannot, while controlling education in the State, impinge on standards in institutions for higher education because this is exclusively within the H purview of the Union Government. [271-C-D) - - - ... ,._ j - - DR. PREE TI SRIVASTAVA v. ST ATE 253

2.4. A common entrance examination envisaged under the Regulations A framed by the Medical Council of India for post-graduate medical education requires fixing of minimum qualifying marks for passing the examination since it is not a mere screening test. [286-E) Per Curiam, (Majmudar, J. concurring with the majority) :

1.1. 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. There can be no lowering of minimum qualifying marks for any category of candidates at the level of admission to the super-speciality courses. [288-A; F-G)

1.2. Reservations made for SC and ST candidates for admission to D.M and M.C.H courses which are super-speciality courses, is not consistent with the constitutional mandate under Articles 15(4) and 16(4). [290-E) Post Graduate Institute of Medical Education & Research, Chandigarh v. K.L. Narasimhan, [1997) 6 sec 283, overruled. B c D Per Majmudar, J. (dissenting)

#1. While there cannot be a dilution of minimum qualifying marks for reserved category candidates up to almost a vanishing point, maximum dilution can be upto 50% of the minimum qualifying marks prescribed for general E category candidates. On that basis if 45% passing marks are prescribed for general category, permissible dilution can then go up to 22 and 112% (50% of 45% ). Any dilution below this rock bottom would not be permissible under Article 15 (4) of the Constitution oflndia. [291-E-FJ

2.1. It is permissible to the State authorities which are running and/ F or controlling the medical institutions in the States concerned to short-list the eligible and qualified MBBS doctors for being considered for admission to post-graduate medical courses in these institutions. For the purpose of such short-listing full play is available to the State authorities to exercise legislative or executive power as the field is not occupied till date by any legislation of the Parliament on this aspect in exercise of its legislative G powers under Entry 25 of List III of the Constitution of India and this topic is also not covered by any legislation under Entry 66 of List I of the Constitution. (334-B-C-D) The Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar, [1963) Supp. 1 SCR 112; Tej Kiran Jain v. N. Sanjiva Reddy, [1970) 2 SCC H 254 SUPREME COURT REPORTS [1999] SUPP. I S.C.R. _