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TMI Blog1994 (3) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... and. 2.Shri Vikas Singh, learned counsel for the appellants urged the following contentions: (1)Article 1 5(4) does not speak of nor does it permit reservation of seats in educational institutions. While certain preferences and concessions can be given, reservation of seats is outside the purview of Article 1 5(4). (2)Even if Article 15(4) permits reservation of seats, Such reservation must contribute to the advancement of the society and should not be detrimental to the interests of society. Reserving as much as 50% seats in postgraduate medical courses is certainly detrimental to the interests of the society. The society would be saddled with less competent and less efficient doctors to the extent of half the number available. (3)Inasmuch as Substantial amount is paid by way of stipend to postgraduate students, admission to such course is in effect an appointment to a post. The postgraduate course in medicine is thus a promotional post for doctors who have completed MBBS course. It has been held by this Court in Indra sawhney.V Union of India (1992 Supp (3) SCC 217 : 1992 SCC (L S) Supp 1 : JT (1992) 6 SC 273) that no reservations are permissible in the matter of prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis. It is true that in R. Chitralekha v. State of Mysore (1964) 6 SCR 368 : AIR 1964 SC 1823, Janki Prasad Parimoo v. State of J K (1973) 1 SCC 420: 1973 SCC (L S) 217 :(1973) 3 SCR 236 as also in Balaji 1963 Supp 1 SCR 439: AIR 1963 SC 649 it seems to have been assumed that reservation necessarily implies selection of less meritorious persons but this aspect was explained in the majority judgment in Indra Sawhney 1992 Supp (3) SCC 217 : 1992 SCC (L S) Supp 1 : JT (1992) 6 SC 273 in the following words: (SCC p. 75 1, para 836) the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with - and may, in some cases, excel - members of open competition. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remely acute, he may have to seek the benefit of reservation. Therefore, the assumption that a student seeking benefit of reservation at the stage of admission to postgraduate medical course has already enjoyed the benefit of reservation once previously is not necessarily true. Secondly, there is no rule under Article 15(4) that a student cannot be given the benefit of reservation at more than one stage during the course of his educational career. Where to draw the line is not a matter of law but a matter of policy for the State to be evolved keeping in view the larger interests of the society and various other relevant factors. Unless the line drawn by the State is found to be unsustainable under the relevant article, the court cannot interfere. Shri Singh then brought to our notice certain observations in the majority judgment in Indra Sawhney1 to say that reservations in the matter of postgraduate and research courses is impermissible. The observations relied upon are in paragraphs 860 and 861 (JT). They read thus: (SCC p. 752, paras 838-839) While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of efficiency of administration. The said consideration was held relevant even while providing for reservation in favour of other backward classes. While making the above observations, the Court was speaking of posts in research and development organisations, in specialities and superspecialities in medicines, engineering and such other courses. The Court was not speaking of admission to specialities and super- specialities. Moreover, MS or MD are not super- specialities. In any event, this Court did not say that they were not permissible; the Government was asked to consider the advisability of providing for reservations in those posts having regard to the nature and level of those posts. 9. We are unable to appreciate the argument of detriment to the interests of society. As we have said hereinbefore, there is no distinction in the matter of passing the examination. No one will be passed unless he acquires the requisite level of proficiency. Secondly, the academic performance is no guarantee of efficiency in practice. We have seen both in law and medicine that persons with brilliant academic record do not Succeed in practice while students who were supposed to be less int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly emphasised that playing with merit for pampering local feeling will boomerang. Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract the Indian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration: Students for postgraduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate Course. All selection for postgraduate studies should be conducted by the universities. Having so stated, the Court hastened to add the following clarification in paragraph 25: (SCC p. 779) We hasten to keep aloof from reservations for backward classes and Scheduled Castes and Tribes because the Constitution hits assigned a special place for that factor and they mirror problems of inherited injustices demanding social surgery which if applied thoughtlessly in other situations may be a remedy which accentuates the malady. Indeed, this aspect has also been adverted in the first half of paragraph 20. Shri Singh also relied upon certain similar observations in paragraphs 36, 39, 40 and 42, which we do not think necessary to reproduce for the reason that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be called upon to satisfy the rule of residence or domicile, as the case may be. This was again not a case arising under Article 15(4). The observations made cannot be torn from their context and read as applicable to the situation obtaining under Article 15(4). For the above reasons, the second contention of Shri Vikas Singh is also rejected. 14.We see absolutely no substance in the third submission of Shri Singh. The argument taxes one's 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. 15.Now, we come to the more important submission which was supported and elaborated by Shri Harish Salve, learned counsel appearing for the Indian Medical Council. The argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities concerned may conduct competitive entrance examination to determine the merit of a candidate for admission to postgraduate medical courses. 16. Shri Salve also brought to our notice Recommendations made by the Medical Council of India to the Central Government for according its approval to enable the Medical Council of India to publish them as Regulations under Section 33 of the Act. These recommendations are contained in another publication of the Medical Council of India under the heading recommendations of postgraduate medical education (adopted by the Medical Council of India in January 1992 - revised up to April 1993 . Under the heading (iv) selection of students and period of training clause (A) relates to selection of postgraduate students . Under clause (A), it is stated: Students for postgraduate training shall be selected strictly on the basis of their academic merit. For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses...... A note is appended to the said clause which says inter alia, there shall be no reservation for admission to postgraduate medical degree/dip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by a local or other authority. He shall also not be entitled to practice medicine in any State nor shall lie be entitled to issue any certificate or give evidence in any matter relating to medicine. Any person acting in contravention of the said provision is made liable for punishment of imprisonment for a term which may extend to one year or with fine or both. Section 16 empowers the Indian Medical Council to call upon every university and medical institution of India which grants a recognised medical qualification to furnish such information with respect to the courses of study and examinations to be undertaken in order to obtain such qualification, as to the ages at which such courses Of Study and examinations are required to be undergone and such qualification is conferred and generally as to the requisites for obtaining such qualification . Section 17 empowers the executive committee of the Indian Medical Council to appoint such number of medical inspectors as it may deem necessary to inspect ally medical institution, college, hospital or other institution where medical education is imparted and to attend any examination held by it. Section 18 confers upon the council th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of new medical colleges or opening of new or higher courses of study or training in existing medical institutions. 18.A review of the provisions of the Act clearly shows that among other things,the Act is concerned with the determination and coordination of standards of education and training in medical institutions. Sections 16, 17, 18 and 19 all speak of the courses of study and examinations to be undergone to obtain the recognised medical qualification. They do not speak of admission to such Courses. Section 19- A expressly empowers the council to prescribe the minimum standards of medical education required for granting undergraduate medical qualification. So does Section 20 empower the Council to prescribe standards of postgraduate medical education but for the guidance Of universities only. It further says that the council may also advise universities in the matter of securing uniform standards for postgraduate medical education throughout India . (The distinction between the language of Section 19-A and Section 20 is also a relevant factor, as would be explained later.) Clause (j) of Section 33 particularises the subjects with respect to which Regulations can be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or they cannot obviously govern the admission to medical courses. 21.In State of M.P. v. Nivedita Jain (1981) 4 SCC 296: (1982) 1 SCR 759 a Bench of this Court comprising Y.V. Chandrachud, C.J., A. Varadharajan and A.N. Sen, JJ. held, dealing with a Regulation (similar to the one contained in the 1989 publication of the Regulation by the Indian Medical Council) made by the Indian Medical Council that it is merely directory and does not have any mandatory force . A.N. Sen, J. speaking for the Bench dealt with the scope of Entry 66 List 1 in the Seventh Schedule to the Constitution in the following words: (SCC pp. 313-314, para 22) Entry 66 in List 1 (Union List) of the 7th Schedule to the Constitution relates to 'coordination 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 admission. On the other hand, Entry 25 in List III (Concurrent List) of the same Schedule speaks of - 'education, including technical education, medical educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished and is maintaining these institutions out of public funds must be held to possess the power to regulate the admission policy consistent with Article 14. Such power is an integral component of the power to maintain and administer these institutions. Be that as it may, since we have held, agreeing with the holding in Nivedita Jain7 that Entry 66 in List 1 does not take in the selection of candidates or regulation of admission to institutions of higher education, the argument of Shri Salve becomes out of place. The States must be held perfectly competent to provide for such reservations. 23. Shri Salve then contended that the principle of Nivedita Jain7 if applied uniformly, would undoubtedly tell upon and affect the power of Parliament under Entry 66 of List 1. He submitted that if the State Government provides that a student belonging to a reserved category obtaining one mark in entrance test would yet be eligible for admission in postgraduate courses in a situation where the eligibility percentage is, say, 50% for open competition candidates, it is bound to affect the standards of education. Counsel pointed out that according to the ratio of Nivedita Jain7 this is permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in the Schedule to the Act. The plea of the State was that the law made by it is in pith and substance relatable to Entry 42 in List III ( Acquisition and Regulation of Property ) and is, therefore, not ultra vires the powers of the State Legislature. A Constitution Bench of this Court upheld the State's plea on an examination of the provisions of the State Act. In that connection, it observed: (SCC pp. 146-147, para 13) When validity of a legislation is challenged on the ground of want of legislative competence and it becomes necessary to ascertain to which entry in the three lists the legislation is referable to, the Court has evolved the theory of pith and substance. If in pith and substance a legislation falls within one entry or the other but some portion of the subject-matter of the legislation incidentally trenches upon and might enter a field under another List, the Act as a whole would be valid notwithstanding such incidental trenching. This is well established by a 8 catena of decisions (see Union of India v. H.S. Dhillon (1971) 2 SCC 779: (1972) 2 SCR 33 : AIR 1972 SC 1061 and Kerala State Electricity Board v. Indian Aluminium Co. Ltd.) (1976) 1 SCC 466: (197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. to wit every attempt should be made to harmonize the apparently conflicting entries not only of different Lists but also of the same Lists and to reject that construction which will rob one of the entries of its entire content and make it nugatory . This principle applies equally to a case where an entry in List 11 or List III is made subject to an entry in List 1. The entry concerned in List I should not be so construed as to rob the relevant entry in List II or List III of all its content and substance. It is only when it proves not possible to reconcile the entries that the non-obstante clause notwithstanding anything in clauses (2) and (3) occurring in Article 246(1) has to be resorted to. Applying the aforesaid rules, we must hold that regulation of admission of students subject to postgraduate medical courses falls outside the purview of Entry 66 List 1, which means that it continues to inhere in Entry 25 of List 111. 26. Even if one relates the Indian Medical Council Act to Entry 25 of List III in addition to Entry 66 of List 1, even then the position is no different - for the Indian Medical Act does not purpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompetence of the State Legislature, and also because counsel for both parties requested the Court to express itself on the question for their future guidance. (See SCR p. 135) 29. After referring to Entries 63 to 66 in List I and Entry 25 of List 11 (as also to Entry 11 in List 11) the Court observed: (SCR pp. 137, 138 and 139) Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in Parliament. Use of the expression 'subject to' in Item II of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures. ... The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by Item 66 List I must prevail over the power of the State under Item II of List 11. ... Under Items 63 to 65 the power to legislate in respect of medium of instruction having regard to the width of those items, must be deemed to vest in the Union. Power to legislate in respect to medium of instruction, insofar it has a direct bearing and impact upon the legislative head of coordination and determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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