# l r ; STATE OF M.P. AND ANR v. KUMARI NJVEDITA JAIN AND ORS

- **Citation:** [1982] 1 S.C.R. 759
- **Court:** Supreme Court of India
- **Decided:** 1980-09-09
- **Case number:** Civil Appeal Nos. 554·555 of 1981
- **Bench:** Y.V. Chandrachud, C.J .. A. Varadarajan, AMARENDRA NATH SeN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-r-state-of-m-p-and-anr-v-kumari-njvedita-jain-and-ors-8318
- **Pages:** 30

## Headnote

759
Right of opportunity for admission to medical co/l~gr1-Rule:s for A.dmlssiorr
/No the Mtdical, Dentistry and .A.yurvedic College:~ lrr Madhya Prade:~h prescribing
Rltttion purely on merit from amongst those who have qualified In the written
tmrinQtiGr.-Ftstfi'Otion of stOI$ for Scheduled Castes afld Sclreduled Tribe3 to
tltt tzttnt of IS% for each caugory subject to a provlslo!lln Rule 9 to the effect
Pot 1111/illtd vacancie11 should go to candidates available 'on the combined Merit
Usi-Statt Governmmt by on executive ordtr dated 9th September, 1980 compte·
tr/1 rtlaxing the €0ndilfa11S relating to the minimum qualification marlu for :selectioll to medical collegu In farour of Scheduled Castes and Scheduled TribuWittthtr tht exuutht order offMds .A.rticlu 14 and 15 of the Co11StitUJiort and
Ordillanct 54 of the C/nlrtulty of Jabo/pur, Rrgulation 2 of the Medical Co~~IrCil of
ladiJJrtadwlth :section 19 of the Indian Medical Council Act, /956.
-
In exercise or its executive power
the State Government of Madbya
Pndt$h made by its order dated 2nd April, 1980 the Rules for admission into
the Medical, Dentistal and Ayurvedic Colleges in Madhya Pradesh. By and
on~tr Rule 7 tho State Government has reserved 15% or seats for each or tho
nttaorics or Scheduled Cutes and Scheduled Tribes candidales. Rule 20 lays
down that ~tlection or candidutu from nmons" those who have qualified in the
rumination ihall be made strictly on merit as disclosed by total number of
marks obtained by candidates in the pre-medical e:urnination. Rule 20 further
:o;•~n that minimum qualifying marks for admission to Medical Colleges shall
C •0/.ln the aur~~ate and 33% In each subject respectively; but for Schedul~d
· ~~~t~ and Scheduled Tribes candidates tbe minimum qualifying marks shall be
th r. 10 the anre~ate and 30% in each ,ubject. Note (ii) below Rulo 20 empowc~
d:k~ovenun~nt to arant in case of candidate belont~ing to the :a~egori.::s of ~~o·
Ut1tet and ~hcdult:d Tribes special relaxation In tho mmtmum quultfytog
marks to the
·
· d
be
f
Qndl
. extent constd~red n.:ceuory in the ev.:nt of the rcquu-e num r o
•lo tdatet JU tbcse two categories not being available. Rule 9 contains a provi.
an:.;: the tlYect that In case seuts rc$Crvod for categories of Scheduled Castes
h•ilabbcdultd Tribes remain vaCllnt, theso seats will be filled up by ~ndidates
MeditaJlt 00 tho combined merit Jist. Tho total number of seats Ill all the
•M Scbe~o:It-aet beloa 720 in number, 108 aeats ca.:h for tho S;;heduled Castes
u cd Tribes became re!erved under Rulo 7.
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760
SUPREME COURT REPORTS
[ 1982] 1 s.c.R.
For admission to the Medical Colleges for the academic year l 980-Sl, there
were 9400 candidates in all, of which f23 candidates were from Scheduled Castes
and 145 candidates were from Scheduled Tribes. On the result of the pre-medical examination only 18 seats in tl:e category of Scheduled Castes and 2 scats in
the category of Scheduled T 1ites cculd te f:lled up because the other candidates
of these categories did not
~ccure the qualifying marks prescribed by Rule 20.
The Selection Board in exercise of the
pov. er under note (i) to Rule 20 made a
rc)a)(ati(\n c f 5% in terms thereof and thereafter 7 more candidates in thecateI!OJY of Scheduled Castes and or:e reme in the category of Scheduled Tribes got
admitted, Jc:aving a balance of 83 seats under Scheduled Castes' quota, and 105
seats under th: Sdedulcd T1ibcs quota to te filfed as provided for under Rule 9.
But the State Government, by its order dated 9th September, 1980 removed the
condition relating to minimum qualifying marks in favour of the candidates from
amongst Scheduled Castes and Scheduled Tribes.
The respondent belonging to the general category who obtained the minirr.um qualifying rrarks but could not ~t(me a emission as other candidates for
the general seats had obtained marls hil!her than she had oblained in the premedi.ca\ examination for filling up the vacancies available

## Text

_Characters 0–39,886 of 75,562. This is a partial read: ask again with offset=39886 for what follows._

J
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STATE OF M.P. AND ANR.
v.
KUMAR! NJVEDITA JAIN AND ORS.
September 22, 198/
[ Y.V. CHANDRACHUD, C.J .. A. VARADARAJAN AND
AMARENDRA NATH SeN, JJ. J
759
Right of opportunity for admission to medical co/l~gr1-Rule:s for A.dmlssiorr
/No the Mtdical, Dentistry and .A.yurvedic College:~ lrr Madhya Prade:~h prescribing
Rltttion purely on merit from amongst those who have qualified In the written
tmrinQtiGr.-Ftstfi'Otion of stOI$ for Scheduled Castes afld Sclreduled Tribe3 to
tltt tzttnt of IS% for each caugory subject to a provlslo!lln Rule 9 to the effect
Pot 1111/illtd vacancie11 should go to candidates available 'on the combined Merit
Usi-Statt Governmmt by on executive ordtr dated 9th September, 1980 compte·
tr/1 rtlaxing the €0ndilfa11S relating to the minimum qualification marlu for :selectioll to medical collegu In farour of Scheduled Castes and Scheduled TribuWittthtr tht exuutht order offMds .A.rticlu 14 and 15 of the Co11StitUJiort and
Ordillanct 54 of the C/nlrtulty of Jabo/pur, Rrgulation 2 of the Medical Co~~IrCil of
ladiJJrtadwlth :section 19 of the Indian Medical Council Act, /956.
-
In exercise or its executive power
the State Government of Madbya
Pndt$h made by its order dated 2nd April, 1980 the Rules for admission into
the Medical, Dentistal and Ayurvedic Colleges in Madhya Pradesh. By and
on~tr Rule 7 tho State Government has reserved 15% or seats for each or tho
nttaorics or Scheduled Cutes and Scheduled Tribes candidales. Rule 20 lays
down that ~tlection or candidutu from nmons" those who have qualified in the
rumination ihall be made strictly on merit as disclosed by total number of
marks obtained by candidates in the pre-medical e:urnination. Rule 20 further
:o;•~n that minimum qualifying marks for admission to Medical Colleges shall
C •0/.ln the aur~~ate and 33% In each subject respectively; but for Schedul~d
· ~~~t~ and Scheduled Tribes candidates tbe minimum qualifying marks shall be
th r. 10 the anre~ate and 30% in each ,ubject. Note (ii) below Rulo 20 empowc~
d:k~ovenun~nt to arant in case of candidate belont~ing to the :a~egori.::s of ~~o·
Ut1tet and ~hcdult:d Tribes special relaxation In tho mmtmum quultfytog
marks to the
·
· d
be
f
Qndl
. extent constd~red n.:ceuory in the ev.:nt of the rcquu-e num r o
•lo tdatet JU tbcse two categories not being available. Rule 9 contains a provi.
an:.;: the tlYect that In case seuts rc$Crvod for categories of Scheduled Castes
h•ilabbcdultd Tribes remain vaCllnt, theso seats will be filled up by ~ndidates
MeditaJlt 00 tho combined merit Jist. Tho total number of seats Ill all the
•M Scbe~o:It-aet beloa 720 in number, 108 aeats ca.:h for tho S;;heduled Castes
u cd Tribes became re!erved under Rulo 7.
A
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760
SUPREME COURT REPORTS
[ 1982] 1 s.c.R.
For admission to the Medical Colleges for the academic year l 980-Sl, there
were 9400 candidates in all, of which f23 candidates were from Scheduled Castes
and 145 candidates were from Scheduled Tribes. On the result of the pre-medical examination only 18 seats in tl:e category of Scheduled Castes and 2 scats in
the category of Scheduled T 1ites cculd te f:lled up because the other candidates
of these categories did not
~ccure the qualifying marks prescribed by Rule 20.
The Selection Board in exercise of the
pov. er under note (i) to Rule 20 made a
rc)a)(ati(\n c f 5% in terms thereof and thereafter 7 more candidates in thecateI!OJY of Scheduled Castes and or:e reme in the category of Scheduled Tribes got
admitted, Jc:aving a balance of 83 seats under Scheduled Castes' quota, and 105
seats under th: Sdedulcd T1ibcs quota to te filfed as provided for under Rule 9.
But the State Government, by its order dated 9th September, 1980 removed the
condition relating to minimum qualifying marks in favour of the candidates from
amongst Scheduled Castes and Scheduled Tribes.
The respondent belonging to the general category who obtained the minirr.um qualifying rrarks but could not ~t(me a emission as other candidates for
the general seats had obtained marls hil!her than she had oblained in the premedi.ca\ examination for filling up the vacancies available in the general category,
would have been in a position to secure admission to the Medical College but
for the complete relaxation granted by the impugned order without complying
with the provisions of Rule 9.
She, therefore, filed a writ petition in the High
Court on the grounds, inter alia, (1) that the order of the Government contravenes
Regulat;on II of the M~dical Council of India and would hit Section 19 of the
lndian Medical Cetncil Act, 19:6, eJ<posing the Medical Colleges to the risk of
teing cuecqni~(d; (:2) tht tt.e crder of the Government will have the effect of
allo"-ing less qualified and Jus de~uving candidates to fill up the seats and would,
therefore, destroy equality and violate Ariicles 14 and
15 of the Constitution;
and (3) the order was violative
of Ordinance 94 of the University of Jabalpur.
The High Court accepted the contentions of the writ
petitioner and allowed
the petition. Hence the appeal by the State, after obtaining spe cia I leave.
Allowing the appeals, the Court,
HELD ; l. The executive order dated 9th September, 1980 pass~:d by the
State of Madb)a Pradt!h ccrrpletely Jelaxing the conditions relating to the
minimum qualif:~-ing n·arks for ~election of students to Medical Colleges of the
State in respect of candidates belongmg to Scheduled Castes and Scheduled
Tribes is not violative of either Article 14, 15(1) or 15(2) or 15 (4). [785 G, 788 C)
2. The relaxation does not offend Article 14 of the Constitution. There is
no relaxation of the condition regarding eligibility for and admission into Medical Colleges.
The relaxation is only in the rule regarding selection of candidates
belonging to Scheduled Castes and Scheduled Tribes who were otherwise qualified
and eligible to seek admission into Medical Colleges only in relation to seats
reserved for them. Further the validity of the reservation of seats for candidates
belonging to Scl:eduled Castes and Scheduled Tribes have not been challenged
and very properly in view of Article 15 (4) of the Constitution. [786 E·G]
3.
1lle rela~ation cannot be said to be unreasonable and does not violate
Articles 15(1), (2) and (4) of the Constitution. The State must do everything
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M.P. STATE V. NIVEDITA JAIN
761
possible for the upliftment of the Scheduled Castes and Scheduled Tribes and
other backward communities and it is entitled to make reservations for them in
the matter of admission to medical and other technical institutions.
In the
absence of any law to the contrary, it mast also b~ open to the Govemm~n t to
impose such conditions as would make the reservation elf~ctive and would benefit
the candidates belonging to these categories for whose b~n~fit and welfare the
reservations have been made. In any particular situation. taking into consideration the realities and cir.;umstances 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 necesSlry for achieving the purpose for
which reservation has been made and if there be no law to thi! contrary. N.He (ii)
of rule 20 of the Rules for a :I mission fram~d by the State Governm:nt sp!cifically
empowers the Government to grant such relaxation in the minimum qualifying
marks to the extent considered necessary. The order can be supported under
Article 15(4) of the Constitution. [785 H, 786 A-D]
State of Kerala and Anr. v. N.M. Thomas, [1976] l SCR 906; Jagdish Saran
and Ors. v. Union of India and Ors., [1980} 2 SCR 831, followed.
Amalendu Kumar v. State oi Bihar, AIR 1980 Patna-1 overruled.
4. Under Article 162 of the Constitution the executive power of a State,
extends to the matter with regard to which the Legislature of a State has power
to make laws. As there is no legislation covering the field of selection of candidates for admission to Medical Colleges, the
State Government would,
undoubtedly, be competent to pass executive orders in this regard. [785 D-E)
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State of Andhra Pradesh and Ors. v. Lavu Narendranath and Ors. etc. etc. ,
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[1971] 3 SCR 699, reiterated.
5:1. Regulation II of the Indian Medical Council is merely directory and
in the nature of a recommendation and, therefore, has no such statutory force as
to render the executive order dated 9th Septemper, 1980 which contravenes the
said Regulation illegal, invalid and unconstitutional. [785 B-CJ
Entry 66 in List I (Union List) of the Seventh 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 h;.ve 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 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 ! ......... 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. [784 G-H, 785 A-C)
5:2. Regulation I of the Medical Council prescribes the requisites which
have to be satisfied to enable every student to become eligible or qualified to seek
admission and the process of selection comes thereafter. As this Regulation is
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762
SUPREME COURT ~BPORTS
[ 1982] 1 S.C.R.
within the competence of the Council t~e Counci~ .;ha~ framed this Regulation
j n 8 manner which leaves no doubt that th1s RegulatiOn IS mandatory. [783 B-q
S:3. Regulation 11 of the Council is merely in the nature of a rccomrneo.
dation. Regulation II begins with the words "selection of students in medical
college should be based solely on merit". Language used in Regulation II is
deliberate aod is intended to indicate the intention of the Council that it is only
in the nature of a recommendation.
By way of. solution to the problem of
dearth of seats, 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 6Ufgested 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. Regulation II recommendinz
the process of selection is outside the authority of the Council under section 33
of the Act and the Council bas advisedly and deliberately used such language in
Regulation II as makes the position clear and places th~ matter beyond nny
doubt. further, apart from reservations of seats for Scheduled Castes and
Scheduled T1ibes and other reservations, reservation of scats is commonly made
for being filled up by nomination. In the instant case, it appears that seats not
exceediog three per cent are reserved for the nominees of the Government of India
apart from the other reservations. These nominees of the Central Government
do not have to ait for any pre-medical examinntion to qualify themselves for
selection to the Medical Colleges, They mu~t of course~ be eligible for admission
in the sense that they must hove the necessary qualification for admis~ion in
accordance wuh Regulation I. The candidates eligibk under Regulation I are
selected by virtue of nomination and there is no question of any pre-medical te$t
for such candidales nominated by the Central Government. If Regulati"n II
could be considered to be mandatory, there could be no such nomination of
candida1es by the Central CovcmmcoL [783 G-H, 784A-C,\E-G)
6:1. An analysis of the:
uriou~ aections of the Indian M.:dical Council
Act, 1956 indicates that tho main purpose of the Act is to establish Medical
Council of India, to provide for its constitution. ~:omposi1ion and functions and
the maio function of the Council is to maintain the medical register of India and
to m1ointain a proper llandard of medical education and meJiL'lll ethics and
profti.l>ional conduct for medkal practitioners. The scheme or the Act aprcar1
to be that the Medical Council of Jndia Is to be set up in tho maooer provided
in tbe Act and the Medical Council will maintain 11 proper m.:dical ro:gist~r,
v.ill prC'SCTibe minimum 5tandarda of medico! education required (l)t 11ranllnJ
r«e¥lJ~d mc:dfcal quaJificatioos, WiJI a) so prescribe •tandard~ Of po~t·graJilate
nltdi~al education and will further tellulatc the standard or prof~ssional condtlloi
awd etiquette and code of ethie~ for mcdiclll pr.1ctitioners. The Act fllrtb~
envil>B@tS I hilt if it appear• to 1he Council that the courses of stu<ly and e•am•·
nation to be uod(ratone In, or the proficiency required from candidates at anY
eJ.:crmioatklD htld by any U11.iversity or Medical Institution do not conform 10. the
&lll?~~ard prc~tibed by the Council or that tho stzttT, equipment, accommodat.'Oll•
t~•unna an~ other facilitie!i for instru.:llons and training provided in such ~n,vet·
••ty Of medical institution or in any c:olle<>c or other Institutions affihated w
t
u '
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'1 t~
I •lit
IHV(t.<,ity do not conform to the standard$ prescribc:d by I he Counc• • d
Cr,.~r" il "ill make a representation to that eiT.:ct to the Central Government 10
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M.P. STATE v. NIVEDITA JAIN
763
on consideration of the representation made by the Council, the Central Government may take action in terms of the provisions contained in section 19 of the Act.
[776 G-H, 777 A-C)
The Act also empowers the Council to take various measures to enable the
Council to judge whether proper medical standard is being maintained in any
A
particular institution or not.
(777 C-DJ
B
6 : 2. The authority of the Council extends to the sphere of maintaining
proper medical standardq in Medical Colleges or institutions necessary for obtaining recognised medical qualifications. By virtue of this authority it may be
open to the Council to lay down the minimum educational qualifications required
of a student who may seek admission into a Medical College. In other words,
the eligibility of a candidate who may seek to get admitted into a medical
college for obtaining recognised medical qualifications may be prescribed by the
Council. AU the candidates who are eligible for admission into Medical Colleges
or institutions for getting themselves qualified as 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 the medical course does not appear to come within the purview
of the Council. (777 E-H, 778 A]
c
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6 : 3. The process of selectioll
of candidates for admission to a Medical
College out of the candidates eligible for admission for filling up the limited
E
vacancies has no real bearing on the question of eligibility or qualification for
admission or on the standard of medical education. The standard of medical
education really comes into the picture in the course of studies in the medical
colleges or institutions after the selection and admission of candidates into M!di·
cal Colleges and institutions. Students who satiffy the requirements of Regulation I become qualified or eligible to seek admission into the Medical Course.
Regulation I prescribes the requisites which have to be satisfied to enable every
F
student to become eligible or qualified to seek admission and the process of
selection comes thereafter. [778 C-E]
Undoubtedly, under section 33 of the Act, the Council is empowered to
make regulations with the previous sanction of the Central Government generally
to carry out the purposes of the Act and such regulations may also provide for
any of the matters mentioned in section 33 of the Act. [778 E·F]
G
Stare of Kerala v. Kumari T. P. Roshana and Drs., [ 1979] 2 SCR 974: Arti
Sapru v. State of Jammu and Kashmir and Drs .. [1980] 3 SCR 34, explained
and distinguished.
CIVIL APPELLATE JURISDICTION:
Civil Appeal Nos. 554·555
of 1981.
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764
SUPREME COURT REPORTS
[1982] I s.c.~.
From the judgment and order dated the 6th November, 1980
of the High Court of Madhya Pradesh at Jabalpur in Misc. Petition No. 510 and 613 1980.
N.M. Phadke, AM. Mathur, Advocate Genl. M.P., S.K. Gambhir
and Vijay Hansaria for the Appellants.
S.N. Kackar, Vineet Kumar, Gulab Gupta, Nare~h K. Sharma,
S.Q. Hasan, P.N. Puri, E.M.S. Anam and M.K. Dua for the respondents.
B.R. Agarwala for the Medical Council.
· S.K. Mehta, P.N. Puri and M.K. Dua for the interveners.
The Judgment of the Court was delivered by
AMARENDRA NATH SEN, J. The validity of the executive order
dated 9th September, 1980 passed by the State Government com·
pletely relaxing the conditions relating to the minimum quailfying
marks for selection of students to Medical Colleges of the State in
respect of candidates belonging to Scheduled Castes and Scheduled
Tribes categories forms the subject matter of these appeals by Special
Leave.
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The·facts material for the purposes of these appeals may be
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stated:
Kumari Nivedita Jain, one ofthe Respondents in the present
appeals, was a candidate for admission to a Medical College in the
State of Madhya Pradesh. In the State of Madhya 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, Demistry 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
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M.P. STATE v. NIVEDITA JAIN (A.N. Sen, J.)
765
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 n ilitary personnel. Under Rule
8, some further reservations have been made and under this Rule,
seats not exceeding 3% are reserved for the nominees of the GJvern·
ment of India and 3 seats are reserved for the candidates nominated
by the Government of Jammu and Kashmir. Rule 1 (iii) provides
that a Pre-Medical Examination shall be held every year for selection
of candidates for admission to the Medical Colleges and all admissions shall be made only from the merit list prepared on the basis
of the result of this examination except in case of seats placed
at the disposal of the Government of India and other States.
Rule 15 mentions the subjects of the Pre·Medical Examination and
rule 20 Jays down that selection of candidates from amongst those
who have qualified in the examination shall be made strictly on merit
as disclosed by total number of marks obtained by candidates in the
Pre-Medical Examination. Rule 20 further provides that minimum
qualifying marks for admission to Medical Colleges shall be 50% in
the aggregate and 33% in each subject separately : but for Scheduled
Cates and Scheduled Tribes candidates, the minimum qualifying
marks shall be 40% in the aggregate and 30% in each subject.
Rule 20 in its note (ii) empowers the Government to ~grant in case
of candidates belonging to the categories of Scheduled Castes and
Scheduled Tribes special relaxation in the minimum qualifying marks
to the extent considered necessary in the event of the required number of candidates in these two categories not being available. For
the total number of 720 seats in the Medical CoUeges of the State,
there were 9400 candidates in all.
Of the 9400 candidates, there
were 623 candidates belonging to the ca·egory of Scheduled Castes
for whom 108 seats were reserved; and for the 108 seats reserved for
candidates of the Scheduled Tribes Category, there were 145 candidatea belonging to that category. On the result of the Pre-Medical
Examination only 18 seats in the category of the Scheduled Castes
and 2 seats in the category of Scheduled Tribes could be filled
up, because the other candidates of these categories did not secure
qualifying marks prescribed by rule 20. As 90 seats had remained
vacant in the category reserved for Scheduled Castes after selection
of the 18 candidates and 106 seats remained unfilled in the category
of seats reserved for Scheduled Tribes after selection of the two candidates on the result of the examination, the Board in exercise of the
power under Note (i) to Rule 20 made a relaxation of 5% in
terms thereof and thereafter 7 more candidates in the category
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766
SUPREME COURT REPORTS
[1982] l S.C.R
gory of Scheduled Castes and one more in the category of Scheduled
Tribes got admitted. Thus out of 108 seats reserved for each cate·
gory 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
1hese 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. l he 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 follo Ning effect :-
"The Government has taken a decision that the candidates belonging to the Scheduled Castes and Scheduled
Tribes be admitted to the Medical Colleges in the seats
reserved for them in accordance with the merit to be determined on the basis of the marks obtained by them in
the Pre-Medical Examination and that for this purpose,
the condition relating to the obtaining of minimum qualifying marks be removed".
Kumari Nivedita Jain, as we have earlier noticed, was a
car.didate for admission into a Medical College in the general seats,
that is, the seats which have not been otherwise reserved. Though
she had obtained necessary qualifying marks, she could not secure
her admission, as other candidates for the general seats had
obtained rrarks higher than she had obtained in the Pre-Medical
Examination, for filling up the vacancies available in the general
category. It may be noted that rule 9 contains a provision to the
effect that in case seats of reserved categories of Scheduled Castes
and Scheduled Tribes remain vacant, these seats will be filled up
by the candid ales available on the combined merit Jist.
If the seats
in the reserved categories had been thrown open to candidates in
the general category on account of the failure on the part of the
candidates belonging to the categories of Scheduled Castes and
Scheduled Tribes to obtain minimum qualifying marks, Nivedita
Jain would have been in a position to secure her admission to the
medical college. As the State Government by its crder dated 9th
September, 1980 decided to relax completely the conditions relating
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M.P. STATE V. NIVEDITA JAIN (A.N. Sen, J. \
. 767
to minimum qualifying marks for these two categories of Scheduled
Castes and Scheduled Tribes candidates instead of filling up these
seats by candidates available on the combined merit list, she was
deprived of the opportunity of getting her admission into the
medical college.
She, therefore, filed this writ petition in the High
Court or" Madhya Pradesh challenging the validity of the said order
of the State Government dated 9th September, 1980.
It will be
noticed that this order of the State Government is also an executive
•
order.
The principal grounds on which the validity of the order has
been challenged by Nivedita Jain, the respondent herein and the
petitioner in the writ petition before the High Court, are-( 1) that
the order of the Government contravenes Regulation II of the
Medical Council of India and would hit S. 19 of the Indian Medical
Council Act, 1956, exposing the medical colleges to the risk of
being derecognised; and (2) that the order of the Government will
have the effect of allowing less qualified and less deserving candi·
dates 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. 15( 4) being violative of the Regulations which have the force of law." Dealing with the contentions
of violation of Ordinance 54 of the University of Jabalpur, the
High Court observed:
"As the Ordinance has to be read alongwitb the
regulations and can be given effect to only in so far it is
consistent with the regulations, it cannot constitute a new
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ground for invalidating the impugned order, We would,
however, like to emphasise again that when a common
entrance test for selection of candidates is held by the
Government for all the medical colleges, it is very necessary
that the Universities must prescribe identical conditions
for admission consistent with the Regulations made by the
Medical Council to avoid any confusion in the matter of
admission."
In the result, the High Court allowed the writ petition and
struck down the order of the State Government dated 9th September, 1980.
In this appeal by special leave, the State of Madhya Pradesh
and the Controller of Examinations of pre-medical test havo
challenged the correctness of the decision of the High Court.
Before we proceed to consider the various arguments advanced
on behalf of the parties, we may here note that in the writ petition
filed by Nivedita Jain, she also challenged the validity of the reservation made by the State Government of 3% ofthe seats for the
children and grand children of freedom-fighters by another order
passed by the State Government on the 19th September, 1980. The
validity of this order was, however, upheld by the High Court.
The matter rests there and in this appeal we are not concerned with
this aspect of the matter.
Mr. Phadke, learned counseJ appearing on behalf of the
appellants, has submitted that the High Court struck down the order
in question mainly on the ground that the order is violative of the
Regulation II of the Council. He has argued that the validity of
the reservations for the members
of the Scheduled Castes and
Scheduled Tribes has not been questioned. It is his argument that
the seats are reserved for those communities in the interest of
weaker sections of the society and the State under Art. 15( 4) of the
Constitution is competent to do everything possible for the upliftrnent of the Scheduled Castes and Scheduled Tribes and other
backward communities and the State is entitled to make necessary
reservations of seats in the matter of their admission to medical
colleges.
He submits that it must be open to the State to lay down
such conditions 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,
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M.P. STATE v. NIVEDITA JAIN (A.N, Sen, J.}
769
in discharge of the duties and obligation of the State, to the members of those communities and other backwar::l 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
deoial 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 colleges. Mr. Phadke has taken us to
the various provisions of the Indian Medical Council Act (hereinafter referred to as the Act) and also to the Regulations framed by
the Council.
Mr. Phadke submits that the scheme of the Act
clearly suggests that the Council is essentially concerned with the
standard of medical education in the country and that stage only
arrives after the students have been admitted into Medical Colleges.
Mr. Phadke has drawn our attention particularly to Sections 19 and
19A of the Act and he has commented that under S. 33 of the Act.
the Council with the previous sanction of the Central Government
can frame Regulations for carrying out the purpose of the Act. He
has submitted that the selection of candidates for admission to
Medical Colleges cannot be said to constitute any purpose for which
the Act has been enacted, as selection of students has no bearing
on the standard of medical education and the Council is not competent to frame
Regulations for admission to Medical Colleges.
Mr. Phadke in this connection has referred to the decision of this
Court in the case of Arti Sapru v. State of Jammu and Kashmir and
Ors:(1) and has relied on the following observations of the Court
at p. 44:
"Objection to the objective test and the viva voce
examination is based on the ground that they fall outside
the scheme envisaged by the Regulations made by the
Indian Medical Council for admission to the M.B.B.S,
Course. The respondents, however, question the validity
(1) [1981] 3 SCR 34.
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of the Regulations.
We are then referred by the petitioner
to clauses {i) and {1) of S. 33, Indian Medical Council Act,
1956, in support of the contention that the power of the
Council to make regulations extends to making regulations
prescribing the examinations and tests for admission. It
seems to us prima facie that those provisions do not authorise the Council to do so.
But we refrain from expressing
any final opinion in the matter as the Council is not a
party before us.
Mr. Phadke has argued that item 66 in List I of the Seventh
Schedule to the Constitution does not stand in the way of the State
Government to frame rules for admission to Medical Colleges in
view of item 25 included in List III of the said Schedule.
It is the
argument of Mr. Phadke that item 66 in List I which provides for
''co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions",
is not intended to deal with the question of s~lection of candidates
and item l25 in List lli which provides for "education including
technical education, medical education in univestities 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 direcrory, any rules framed
by the State Government regarding selection of candidates in contravention of the said recommendation cannot be held to be invalid
and illegal a'lld cannot be struck down on that ground. Mr. Phadke
has also argued that there is no question of violation of Art. 15( I)
and {2) of the Constitution. It is his argument that in view of the
provisions in Art. 15(4) of Constitution, tl:!e State Government is
competent to make special provisions for the advancement of
socially and educationally backward classes or for the Scheduled
Castes and Scheduled Tribes. Mr. Phadke in this connection has
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M.P. STATE v. NJVBDITA JAIN (A..N. Sen, J.)
771
referred to the case of Jagdish Srran a11d 0-s. v. U1io1 of fniia awl
Ors.e)
Mr. Phadke has commented that the view expre,;s-d b; t:1e
High Court that the order which violates the statutory regulation of
the Council must be held to be violative of Art. 15(1) a1i (21 a 1i
not protected by Art. 15(4) must necessarily be held to be erroneous,
as Regulation II is not mandatory and has no binding effect.
Regarding violation of Ordinance 54 of Jabalpur University,
Mr. Phadke submits that no such ground has been taken in the
petition and further the affidavit filed on behalf of the university
shows that the Ordinance has not become effective.
Mr. Kacker, Learned Counsel appearing on behalf of the
Respondent Nivedita Jain, the petitivner in the writ p.!titton, hli
argued that Regulation Il of the Medical Council is mandlt<Jr)' with
statutory force.
He has submitted that the Indian Medical Council
bas been established by the Parliament, inter alia, for tb.e
maintenance of Medical Register for India and the matters rdating
therewith. He further submits that under s. 33 of the Act the
Council with the previous sanction of the Central Government has
been authorised to make regulations generally to carry out the
purposes of the Act, and without prejudice to the generality of this
power, the regulation made by the council may provide for matters
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which under the Act provision may be made by regulations, as
provided in sub-section (u) of Section 33. It is the argument of
Mr. Kacker that Regulation II of the Council which relates to
selection of candidates has been made for carrying out the purposes
of the Act and selection of the right type of students for maintaining
proper standard of medical education comes clearly within the
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purview and jurisdiction of the Council.
Mr. Kacker has placed us
various sections 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 Kera/a v. Kumari T.P. Roshana and Anr. (I) and
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be 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
(l) [1980] 2 SCR 831.
(2) [ 1979] 2 SCR 97 4.
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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 has been set out earlier.
Mr. Kacker has contended that the
State Government by an executive order cannot over-ride Regulation
II of the Council which bas statutory force of a ParJiamentary
Legislation, particularly, when the said provisions are in a field
occupied by the Union List. Mr. Kacker has next contended that
complete relaxation of the conditions in relation to qualifying
marks for admission into Medical Colleges in case of Scheduled
Castes and Scheduled Tribes candidates purported to have been
made by the State Government by the impugned order dated 9th
September, 1980 must also be held to be unconstitutional as the
said order is clearly violative of Art. I 5 (l) and (2) of the Constitution and cannot be said to be protected by Art. 15 (4).
In support
of this submission Mr. Kacker has relied on the decision of the Full
Bench of the Patna High Court in the case of Amalendu Kumar v.
State of Bihar. (1)
In this case the Patna High Court held that
where the State Government reduces the
percentage of marks,
marks prescribed for the Scheduled Castes and Scheduled Tribes
for passing competitive examination held for the purpose of
admission to medical college, by executive fiat, first from 45% to
40% and subsequenty to 35% on the ground that seats reserved for
the Scheduled Castes and Tribes would remain unfilled,
both
reductions were invalid as violative of guarantee given under
Art. 15 (1).
Mr. Kacker has finally submitted that the order in question
is also liable to be struck down as the order is violative of
Ordinance 54 of University of Jabal pur.
(1) AIR 1980 Pat. 1.
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M.P. STATE v. NIVEDITA JAIN (A.N. Sen, J.)
773
In concluding Mr. Kacker has appealed to this Court that
irrespective of the result of this appeal, the respondent Nivedita
Jain who has already been admitted into a College on the basis of
interim order passed by this Court in this appeal for prosecuting
her studies in the Medical College, should be allowed to continue
her studies and the fate of this appeal should not interfere with her
studies and with her career.
As we have earlier noticed, the order in question has been
struck down by the High Court essentially on the ground that the
order whieh is an executive order violates Regulation II of the
Council which has the force of a Statute.