# TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS v. UNION OF INDIA & OTHERS

- **Citation:** [2020] 8 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 2020-08-31
- **Bench:** Arun Mishra, Indira Banerjee, Vineet Saran, M. R. Shah, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tamil-nadu-medical-officers-association-ors-v-union-of-india-others-34853
- **Pages:** 148

## Headnote

Medical Council of India Post Graduate Medical Education
Regulations, 2000:
Regulations 9(IV) and (VII) (as it stood prior to 5th April
2018) and 9(4) and (8) (as it stood after amendment dated 5th April
2018) - Whether take away the power of State Governments to
reserve seats in Post-Graduate Medical degree courses for inservice medical professionals - Held: Per Shah, J. - In exercise
of power under Entry 25 of List III of Seventh Schedule to the
Constitution, State has power with respect to reservation/ percentage
of reservation and/ or mode of admission within State quota -
Scope of Entry 66 of List I to Seventh Schedule is limited to
prescribe the standard of education - The source of power to
Medical Council of India (MCI) to frame Regulations is from s.
2.33 of MCI Act which is emanating from Entry 66 of List I -
Regulation 9(IV) is limited to reservation in favour of SC/ ST/ OBC
- Therefore, Regulation 9(IV) cannot be said to be taking away
power of States under Entry 25, List III, to provide separate source
of entry for in-service candidates - There is legitimate rational
basis in providing a separate source of entry to in-service
candidates - Such act of the State is in discharge of its
constitutional obligation provided u/Art. 47 which is corresponding
fundamental right u/Art. 21 of the Constitution - Therefore
Regulation 9, to the extent it tinkers with the reservation provided
by State to in-service doctors, is ultra vires on the ground that it is
arbitrary, discriminatory and violative of Arts. 14 and 21 of
Constitution - However, the doctors who would obtain admission
through such separate channel, need to serve the State in rural,
tribal and hilly areas at least for five years after obtaining the
degree - Per Bose, J. - Allocation of seats for in-service candidates
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is only a separate or exclusive source of admission which cannot
be equated with reservation provisions incorporated as
compensatory discrimination - The field of legislation in question
is shared field between Union and the State - In such case
legislative disability of the States would occur only when the Union
legislation covers the same subject on which State undertakes
legislative exercise and the State legislative instrument is found to
be repugnant - Such repugnancy has to be direct and positive -
There cannot be implied repugnancy - If certain area of legislative
entry is left void by Union, this void can be filled by the State
legislature - The Regulations in question, though a self-contained
code are not an exhaustive code covering all the aspects of
admission in post-graduate medical degree courses - The provision
for reservation in clause 9(4) for in-service doctors by the State
from State-wise merit list, cannot be interpreted to mean that the
State is denuded of its power to make separate channel of
admission - There is no bar on the State Authorities to provide for
such reservation - Therefore, such reservation provided by the State
would not be contrary to the Regulations - The doctors in
employment form a separate and distinct class and hence can be
given certain element of preference - But to take benefit of such
separate entry channel, the aspiring in-service doctors must clear
NEET Examination with minimum prescribed marks - In order to
avail the separate source of entry, the State should make a minimum
service in rural, remote or difficult areas for a specified period
before seeking admission and subsequent to obtaining the degree
- Constitution of India - Arts. 14, 21, 47, 245, Schedule VII,
List I, Entry 66, List III, Entry 25.
Disposing of the matters, the Court
HELD:
PER M. R. SHAH, J.
1.1. Entry 66 of List I of Seventh Schedule of the
Constitution is a specific entry having a very specific and limited
scope. It deals with "Coordination and Determination of
Standards" in institutions of higher education or research as well
as scientific and te

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TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS.
v.
UNION OF INDIA & OTHERS
(Writ Petition (Civil) No. 196 of 2018)
AUGUST 31, 2020
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Medical Council of India Post Graduate Medical Education
Regulations, 2000:
Regulations 9(IV) and (VII) (as it stood prior to 5th April
2018) and 9(4) and (8) (as it stood after amendment dated 5th April
2018) - Whether take away the power of State Governments to
reserve seats in Post-Graduate Medical degree courses for inservice medical professionals - Held: Per Shah, J. - In exercise
of power under Entry 25 of List III of Seventh Schedule to the
Constitution, State has power with respect to reservation/ percentage
of reservation and/ or mode of admission within State quota -
Scope of Entry 66 of List I to Seventh Schedule is limited to
prescribe the standard of education - The source of power to
Medical Council of India (MCI) to frame Regulations is from s.
2.33 of MCI Act which is emanating from Entry 66 of List I -
Regulation 9(IV) is limited to reservation in favour of SC/ ST/ OBC
- Therefore, Regulation 9(IV) cannot be said to be taking away
power of States under Entry 25, List III, to provide separate source
of entry for in-service candidates - There is legitimate rational
basis in providing a separate source of entry to in-service
candidates - Such act of the State is in discharge of its
constitutional obligation provided u/Art. 47 which is corresponding
fundamental right u/Art. 21 of the Constitution - Therefore
Regulation 9, to the extent it tinkers with the reservation provided
by State to in-service doctors, is ultra vires on the ground that it is
arbitrary, discriminatory and violative of Arts. 14 and 21 of
Constitution - However, the doctors who would obtain admission
through such separate channel, need to serve the State in rural,
tribal and hilly areas at least for five years after obtaining the
degree - Per Bose, J. - Allocation of seats for in-service candidates
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is only a separate or exclusive source of admission which cannot
be equated with reservation provisions incorporated as
compensatory discrimination - The field of legislation in question
is shared field between Union and the State - In such case
legislative disability of the States would occur only when the Union
legislation covers the same subject on which State undertakes
legislative exercise and the State legislative instrument is found to
be repugnant - Such repugnancy has to be direct and positive -
There cannot be implied repugnancy - If certain area of legislative
entry is left void by Union, this void can be filled by the State
legislature - The Regulations in question, though a self-contained
code are not an exhaustive code covering all the aspects of
admission in post-graduate medical degree courses - The provision
for reservation in clause 9(4) for in-service doctors by the State
from State-wise merit list, cannot be interpreted to mean that the
State is denuded of its power to make separate channel of
admission - There is no bar on the State Authorities to provide for
such reservation - Therefore, such reservation provided by the State
would not be contrary to the Regulations - The doctors in
employment form a separate and distinct class and hence can be
given certain element of preference - But to take benefit of such
separate entry channel, the aspiring in-service doctors must clear
NEET Examination with minimum prescribed marks - In order to
avail the separate source of entry, the State should make a minimum
service in rural, remote or difficult areas for a specified period
before seeking admission and subsequent to obtaining the degree
- Constitution of India - Arts. 14, 21, 47, 245, Schedule VII,
List I, Entry 66, List III, Entry 25.
Disposing of the matters, the Court
HELD:
PER M. R. SHAH, J.
1.1. Entry 66 of List I of Seventh Schedule of the
Constitution is a specific entry having a very specific and limited
scope. It deals with "Coordination and Determination of
Standards" in institutions of higher education or research as well
as scientific and technical institutions. The words "Coordination
and Determination of Standards" would mean laying down the
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said standards and therefore when it comes to prescribe the
standards for such institutions of higher learning, exclusive
domain is given to the Union. That would not include conducting
of examination etc. and admission of students to such institutions
or prescribing the fee in these institutions of higher education,
etc. Thus, in exercise of powers under Entry 66 List I, the Union
cannot provide for anything with respect to reservation/
percentage of reservation and/or even mode of admission within
the State quota, which powers are conferred upon the States
under Entry 25 of List III. In exercise of powers under Entry
25 List III, the States have power to make provision for mode
of admissions, looking to the requirements and/or need in the
concerned State. [Para 10.1][652-G-H; 653-A-C]
Modern Dental College and Research Centre and
Others v. State of Madhya Pradesh and Others (2016)
7 SCC 353 : [2016] 3 SCR 579 - followed.
Gujarat University v. Krishna Ranganath Mudholkar
(1963) Suppl. 1 SCR 112 ; R. Chitralekha v. State of
Mysore [1964] 6 SCR 368 ; Dr. Preeti Srivastava &
Anr. v. State of M.P. & Ors. (1999) 7 SCC 120 : [1999]
1 Suppl. SCR 249 ; Bharati Vidyapeeth v. State of
Maharashtra (2004) 11 SCC 755 : [2004] 2 SCR 775
- relied on.
1.2 Post Graduate Medical Education Regulations, 2000
are framed by the Medical Council of India (MCI) in exercise
of its powers conferred under Section 33 of the Indian Medical
Council Act, 1956 (MCI Act). The MCI Act has been enacted/
passed by the Union in exercise of powers conferred under Entry
66, List I. Therefore, the main source of power of the MCI would
be from Entry 66 List I. As per Section 33 of the MCI Act, the
Council may with the previous sanction of the Central
Government make regulations generally to carry out the
purpose of the said Act. Therefore, in exercise of powers under
Section 33 of the MCI Act, Regulations 2000 are made by the
MCI. [Para 11.2][657-F-G]
D.N. Chanchala v. The State of Mysore and Ors.
(1971) 2 SCC 293 ; Pradeep Jain v. Union of India
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(1984) 3 SCC 654 : [1984] 3 SCR 942 ; Dr. Dinesh
Kumar v. Motilal Nehru Medical College, Allahabad
(1986) 3 SCC 727 : [1986] 3 SCR 345 ; Gujarat
University v. Rajiv Gopinath Bhatt (1996) 4 SCC 60 :
[1996] 2 Suppl. SCR 184 AIIMS Students Union v.
AIIMS (2002) 1 SCC 428 : [2001] 2 Suppl. SCR 79 ;
Saurabh Chaudri v. Union of India (2003) 11 SCC 146
: [2003] 5 Suppl. SCR 152 ; Yatinkumar Jasubhai
Patel & Ors v. State of Gujarat and Ors (2019) 10
SCC 1 : [2019] 12 SCR 848 - relied on.
1.3 On a fair reading of entire Section 33 of the MCI Act,
it does not confer any authority and/or power to the MCI to
frame the regulations with respect to reservation in the medical
courses, more particularly, to provide for a separate source of
entry for in-service candidates seeking admission to
postgraduate degree courses. [Para 11.3][660-B-C]
1.4 The first part of Regulation 9(IV) speaks for the
reservation of seats in medical colleges/institutions. It provides
that the reservation of seats in medical colleges/institutions for
respective categories shall be as per applicable laws prevailing
in States/Union Territories. It further provides for preparing allIndia merit list as well as State-wise merit list of the eligible
candidates on the basis of the marks obtained in NEET and
candidates shall be admitted to postgraduate courses from the
said merit lists only. To that stage, it can be said that the same
is within the legislative competence of the Union/MCI, in
exercise of powers under Entry 66 List I. However, proviso to
Regulation 9(IV) further provides that in determining the merit
of candidates who are in service of Government/public authority,
weightage in the marks may be given by the Government/
competent authority as an incentive at the rate of 10% of the
marks obtained for each year of service in remote and/or difficult
areas up to the maximum of 30% of the marks obtained in NEET.
It further provides that the remote and difficult areas shall be
as defined by the State Government/competent authority from
time to time. Thus, it can be seen that even the proviso can be
said to be with respect to preparing the merit list only.
Regulation 9(IV) is limited only to reservation in favour of SC/
ST/OBC and as per the prevailing laws in the States. If that be
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so, then the proviso which as such is not dealing with the
reservation cannot be said to be in the form of an exception to
first part of Regulation 9(IV) and it can be seen that it is an
independent provision dealing with the in-service candidates and
that too for the purpose of preparing the merit list. Thus, the
proviso becomes the substantive provision and is more
concerned with the marks to be allocated which is the concern
of Regulation 9(III). The proviso only enables the States by
conferring the discretion for weightage. The proviso has nothing
to do with the reservation in the postgraduate degree courses
and therefore it shall not negate the State's power to make
reservation and/or make special provision to provide for a
separate source of entry for in-service candidates seeking
admission to postgraduate degree courses. Thus, Regulation
9(IV) as such cannot be said to be taking away the power of the
States under Entry 25, List III, to provide for a separate source
of entry for in-service candidates seeking admission to
postgraduate degree courses. [Paras 12 and 12.1][660-F-H; 661A-F]
1.5 If it is construed that Regulation 9 of the MCI
Regulations, more particularly Regulation 9(IV) provides for
reservation and/or deals with the reservation for in-service
candidates, in that case, it will be beyond the legislative
competence of the Union as well as it will be ultra vires the MCI
Act. Section 33 of the MCI Act does not confer any power on
the MCI to make regulations with respect to reservation.
"Institutional preference", despite MCI Regulations has been
upheld and held to be permissible by the concerned States.
[Para 12.1][661-G-H; 662-A]
Kumari Chitra Ghosh and Anr. v. Union of India & Ors.
(1969) 2 SCC 228 : [1970] 1 SCR 413 - referred to.
2.1 It has been consistently held by this Court that there
is a legitimate and rational basis in providing a separate channel/
source of entry for in-service candidates in order to encourage
them to offer their services and expertise to the State. There is
a sufficient nexus with the larger goal of equalization of
educational opportunities and to sufficiently prefer the doctors
serving in the various hospitals run and maintained out of public
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funds, in the absence of which there would be serious dearth of
qualified Post-graduate doctors to meet the requirements of the
common public. That the Government is facing public health
crisis. The effective and competent medical treatment is not
available in the rural and difficult areas. In-service doctors who
pursue higher studies would naturally serve in rural and difficult
areas if such incentive in the form of reservation is provided.
[Para 15][680-G-H; 681-A]
K Duraiswamy & Anr v. State of Tamil Nadu and Ors.
(2001) 2 SCC 538 : [2001] 1 SCR 490 ; State of
Madhya Pradesh & Ors v. Gopal D Tirthani and Ors
(2003) 7 SCC 83 : [2003] 1 Suppl. SCR 797 ; Sudhir
N v. State of Kerala and Ors. (2015) 6 SCC 685 :
[2015] 1 SCR 884 - relied on.
State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC
749 : [2016] 6 SCR 571 - referred to.
2.2 The action of the State to provide for the in-service
quota is in the discharge of its positive constitutional obligations
to promote and provide better health care facilities for its
citizens by upgrading the qualifications of the existing in-service
doctors so that the citizens may get more specialized health care
facility. Such action is in discharge of its constitutional obligations
as provided in Article 47 of the Constitution of India, which is
the corresponding fundamental right of the citizens protected
under Article 21 of the Constitution of India. It is settled law
that Article 21 of the Constitution of India confers on the citizens
of India a fundamental right to life and personal liberty. Right to
health is integral part of the Right to life and is a facet of Article
21. [Paras 15.1 and 15.2][681-B-D]
Municipal Council, Ratlam v. Vardhichand [1981] 1
SCR 97 ; Devika Biswas v. Union of India (2016) 10
SCC 726 ; CESC Ltd. v. Subhash Chandra Bose (1992)
1 SCC 441 : [1991] 2 Suppl. SCR 267 ; Paschim
Banga Khet Mazdoor Samity v. State of West Bengal
[1996] 2 Suppl. SCR 331 ; Association of Medical
Superspeciality Aspirants & Residents v. Union of
India (2019) 8 SCC 607 : [2019] 12 SCR 1011- relied
on.
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2.3 A healthy body is the very foundation for all human
activities. In a welfare State, therefore, it is the obligation of the
State to ensure the creation and the sustaining of conditions
congenial to good health. Maintenance and improvement of
public health have to rank high as these are indispensable to
the very physical existence of the community and on the
betterment of these depends the building of the society of which
the Constitution makers envisaged. Even otherwise, the power
of the State under Entry 6, List II of Schedule VII to legislate
in the subject matter of public health and hospital is exclusive.
[Paras 15.4 and 15.7][683-A-B, F]
Vincent Panikurlangara v. Union of India AIR 1987
SC 990 : [1987] 2 SCR 468 - relied on.
2.4 Thus, when the State provides a separate source of
admission for in-service doctors as a distinct class and within
the State quota and the object is laudable, the State is within its
power to provide such separate source of admission in exercise
of the powers under Entry 25 List III, read with Entry 6, List
II. It cannot be said that there is no nexus with the laudable
object of meeting the requirement of qualified postgraduate
doctors for the public health services, more particularly, in the
rural, tribal and difficult areas. As such, there is no conflict
between the power of the Union and the State. [Para 15.9][684B-D]
2.5 The occupied field of Union legislation in exercise of
power under Entry 66, List I is related to minimum standards
of medical education and the State is providing the in-service
quota without impinging the prescribed minimum standards.
[Para 15.9][684-D]
2.6 It is a settled proposition of law that in case of two
entries might be overlapping, in that case, the interpretation
must be in furtherance of achieving the ultimate object, in the
present case to provide better health care in the rural, tribal and
difficult areas. Any interpretation which would negate and/or
become nugatory the other entry, is to be avoided. There must
be a harmonious reading between the two entries. In the present
case, as such there shall not be any conflict between the power
of the Union and the State, while exercising the powers under
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Entry 66 List I by the Union and under Entry 25 List III by the
States. Therefore, as such, the State is within its power and is
empowered to make reservation in the seats of the
postgraduate medical courses, more particularly, for in-service
doctors. [Para 15.9][684-D-F]
2.7 In the federal structure, the State, as well as the
Parliament, have a constitutional directive for the upliftment of
Scheduled Castes, Scheduled Tribes, and socially and backward
classes. Therefore, the State Government have the right to
provide reservation and in the field of employment and
education, looking to the specific/special need of public
requirement in the particular area. There is no constitutional bar
to take further affirmative action as taken by the State
Government in the cases to achieve the goal. [Para 15.10][684G-H]
2.8 The State has the legislative competence and/or
authority to provide for a separate source of entry for in-service
candidates seeking admission to postgraduate degree/diploma
courses, in exercise of powers under Entry 25, List III.
However, it is observed that policy must provide that subsequent
to obtaining the postgraduate degree by the concerned inservice doctors obtaining entry in degree courses through such
separate channel serve the State in the rural, tribal and hilly
areas at least for five years after obtaining the degree/diploma
and for that they will execute bonds for such sum the respective
States may consider fit and proper. [Para 20 (8)][688-B-D]
3.1 Regulation 9, more particularly Regulation 9(VII)
makes provision for reservation for in-service candidates for
admission to postgraduate diploma courses only. However, there
is no reason coming out of either from the Regulations or in any
form of material produced by the MCI showing as to on what
basis MCI takes a stand that similar in-service reservation is
not permissible for admission to postgraduate degree courses.
Therefore, if the very concept of in-service reservation is
permissible and incorporated in the MCI Regulations, 2000,
opposition to similar reservation for postgraduate degree
courses is unreasonable and irrational. [Para 17][685-D-E]
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3.2 The subsequent amendment in the year 2018, as made
by notification dated 12.07.2018, provides that a medical college/
medical institution shall be entitled to seek equal number of Post
Graduate Degree (MD/MS) seats by surrendering recognised
diploma seats in corresponding course. In view of the above, it
has so happened that by and large in every State the diploma
seats are converted in PG Degree (MD/MS) seats by
surrendering recognised diploma seats. The resultant effect is
that in-service candidates/doctors shall not be entitled to any
seat even in PG Diploma courses which has been provided under
Regulation 9(VII) of MCI Regulations 2000, as amended from
time to time. Therefore, ultimately, it will affect the public health
and the common people in the rural, tribal and hilly areas where
there is a dearth of good and highly qualified doctors. Therefore,
if the rights of the States to provide such reservation for inservice doctors in postgraduate degree/diploma courses is not
recognised, in that case, the ultimate sufferer would be the public
health and the common people, particularly the people residing
in rural, tribal and hilly areas. [Para 19][686-D-G]
4. The observations in the case of *Sudhir N that
Regulation 9 is a complete code in itself may not be construed
with respect to providing reservation and/or making special
provision like providing separate source of entry for in-service
candidates within the State quota and subject to fulfilling of other
criteria fixed and provided by the MCI. Therefore, the
observations made by this Court in the case of **Dinesh Singh
Chauhan and as held by this Court in the case of Sudhir N that
Regulation 9 is a complete code in itself cannot be accepted and
is held to be not a good law. [Para 18.1][686-B-C]
*Sudhir N v. State of Kerala and Ors. (2015) 6 SCC
685 : [2015] 1 SCR 884 ; **State of U.P. v. Dinesh
Singh Chauhan (2016) 9 SCC 749 : [2016] 6 SCR 571
- held not good law.
5. It is specifically observed and clarified that the present
decision shall operate prospectively and any admissions given
earlier taking a contrary view shall not be affected by this
judgment. [Para 20][688-D-E]
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T.N. Medical Officers Association v. Union of India
(2018) 17 SCC 478 : [2018] 3 SCR 541 ; Pre-PG
Medical Sangharsh Committee v. Dr. Bajrang Soni
(2001) 8 SCC 694 : [2001] 1 Suppl. SCR 506 ; Tamil
Nadu Medical Officers Association v. Union of India
(2018) 17 SCC 426 : [2018] 3 SCR 551 ; Narayan
Sharma (Dr) v. Pankaj Kr. Lekhar (Dr) (2000) 1 SCC
44 : [1999] 4 Suppl. SCR 364 - referred to.
PER ANIRUDDHA BOSE, J.
Held: 1.1 Legislations pertaining to medical education is
primarily guided by two entries of the Seventh Schedule to the
Constitution of India, being Entry 66 of List I (Union List) and
Entry 25 of List III (Concurrent List). [Para 2][689-D]
1.2 Two other entries in the State List are the source of
State's power to effect such reservation. Entry 6 in the State List
covers "Public Health and Sanitation; hospitals and
dispensaries". Entry 32 of the same List specifies Incorporation,
regulation and winding up of corporation, other than those
specified in List I, and universities, unincorporated trading,
literary, scientific, religious and other societies and associations;
co-operative societies." Admission to postgraduate degree
courses in medical education cannot be linked to the subjectheads specified against the said two entries. The consequence
of reservation of this nature may have impact on functioning of
the institutes vis-à-vis the items referred to in the said two
entries, but the said entries cannot be linked to any statutory
instrument originating from a State providing for reservation of
in-service doctors in postgraduate medical degree courses.
[Para 3][690-A-D]
1.3 The expression "reservation" used in the present
case is not "reservation" in the manner the same is referred to
in the Constitution, providing for compensatory discrimination.
But so far as the subject-controversy is concerned, this
expression really implies a separate source of entry to the
postgraduate medical degree courses. [Para 3][690-D-E]
1.4 A self-contained code can cover only those subjects
which are contained in such code. If the code does not refer to
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certain matters, which do not have impact on or dilute the main
subject for which the code is made, appropriate authorities are
not enjoined from making provisions for such uncovered areas.
The field of legislation involved in the subject-dispute is a shared
field between the Union and the States. The legislative disability
of the States would occur only when the Union legislation covers
the same subject on which State undertakes legislative exercise
and the State legislative instrument is found to be repugnant to
the latter. There also can be vacant legislative zones within a
code, and such vacant zones can be filled up by the appropriate
legislature. Clause 9(4)(or Clause 9(IV) in its earlier form) of
the Regulations stipulates that candidates shall be admitted to
post-graduate courses from the two merit lists only, as referred
to in the said clause. Though it is correct that if a statute requires
a thing to be done in a particular manner, it must be done in
that manner or not at all. But, application of this principle solely
on the basis of a Union legislation, without examining the scope
of the State's legislative power in the given context, would be
contrary to the constitutional scheme in having concurrent field
of legislation. Having regard to Clause 9(4) of the Regulations,
the provision for reservation of in-service doctors by the State
from the State-wise merit list published in pursuance of that
provision would not result in deviation from a mandatory
statutory scheme. The aforesaid sub-clause is required to be
construed in the light of the State's power to make provisions
over the admission norms, provided the candidates fulfil the basic
admission criteria contained in the Regulations. Having regard
to the legal and factual context of the present case and
considering the fact that the issue of legislative competence
arises in respect of an entry belonging to shared, and not
exclusive field of legislations, the said sub-clause cannot be
interpreted to mean that the State is denuded of the power to
make a separate channel of admission to the said courses for
in-service doctors from the State merit list.The said sub-clause
does not prescribe specific bar on the State authorities in
providing for such reservation or such separate entry-channel.
[Para 35][724-C-H; 725-A-D]
Nazir Ahmed v. King Emperor AIR 1936 PC 253 - held
inapplicable.
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1.5 The principle of implied exclusion also would not apply.
The principle of implied exclusion is derived from the latin
dictum "expressio unius est exclusio alterius". There are
authorities, which caution the Courts against indiscriminate
application of this doctrine, describing it to be a "dangerous
master". [Para 35][725-D]
Mary Angel and Ors. v. State of Tamil Nadu (1999) 5
SCC 209 : [1999] 3 SCR 594 ; State of Karnataka v.
Union of India & Anr. (1977) 4 SCC 608 : [1978] 2
SCR 1 ; Assistant Collector of Central Excise v.
National Tobacco of India Ltd. (1972) 2 SCC 560 :
[1973] 1 SCR 822 - relied on.
1.6 When a subject falls in a shared field of legislation,
there may be cases where the dominant legislative body may not
have had made provisions in a legislative instrument for which
it had power to do so. But in such a situation the dominant
legislative body (i.e. Union Legislature) cannot prevent the
secondary legislative body (State Legislature) from making
provisions in that regard. If certain areas of legislative entry is
left void by the Union Legislature, these void areas would come
within the legislative power of the secondary legislative body as
the constitutional entry gives both the legislative bodies coexisting, power to legislate on such subjects. Clause 9 of the
Regulations is no doubt a self-contained code. But, it is not an
exhaustive code covering all aspects of admission in
postgraduate medical degree courses. [Para 36][725-F-H;
726-A]
1.7 Negation of power of the State cannot be a matter of
inference, or such negation cannot be in anticipation that the
Union Legislature may make provisions in future in the vacant
legislative space. Only in cases where the State legislature
makes a law repugnant to any provision of law made by the
Parliament, the Parliamentary law would prevail. The entire field
of admission to postgraduate medical course cannot be said to
be covered by the Regulations. In the facts of the present case,
the Court cannot proceed on the basis of there being implied
repugnancy. Such repugnancy has to be direct and positive. [Para
36][726-B-E]
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West U.P. Sugar Mills Association & Ors v. State of
Uttar Pradesh & Ors. (2020) SCC Online SC 380 ;
U.P. Cooperative Cane Unions Federations v. West U.P.
Sugar Mills Association & Ors. (2004) 5 SCC 430 :
[2004] 2 Suppl. SCR 238 ; S.R. Bommai & Ors. vs.
Union of India & Ors. (1994) 3 SCC 1 : [1994] 2 SCR
644 ; Tika Ramji & Ors.etc v. State of U.P.& Ors. AIR
1956 SC 676 : [1956] SCR 393 - relied on.
2.1 Allocation of seats for in-service candidates is only a
separate or exclusive channel of entry or source of admission
and such entry-path cannot be equated with reservation
provisions incorporated as compensatory discrimination. But
classifying a category of candidates for such distinct or separate
channel has been upheld consistently, provided such
categorisation is based on intelligible differentia. [Para 28]
[717-G]
Yatinkumar Jasubhai Patel & Ors v. State of Gujarat
and Ors (2019) 10 SCC 1 : [2019] 12 SCR 848 ; D.N.
Chanchala v. The State of Mysore and Ors. (1971) 2
SCC 293 ; K Duraisamy & Anr v. State of Tamil Nadu
and Ors. (2001) 2 SCC 538 : [2001] 1 SCR 490 ;
AIIMS Students Union v. AIIMS (2002) 1 SCC 428 :
[2001] 2 Suppl. SCR 79 ; State of Madhya Pradesh
& Ors v. Gopal D Tirthani and Ors (2003) 7 SCC 83
: [2003] 1 Suppl. SCR 797 ; Dr. Snehalata Patnaik &
Ors v. State of Orissa & Ors (1992) 2 SCC 26 : [1992]
1 SCR 335 ; Pre-PG Medical Sangharsh Committee v.
Dr. Bajrang Soni (2001) 8 SCC 694: [2001] 1 Suppl.
SCR 506 ; Satyabrata Sahoo & Ors. vs State of Orissa
& Ors. (2012) 8 SCC 203:[2012] 10 SCR 204. -
relied on.
2.2 The doctors in employment of the States and allied
sectors form a separate and distinct class and for the purpose
of admission in postgraduate degree courses they can be given
certain elements of preference. Holding them to be a distinct
group fits in with overall objective of having medical
professionals with superior qualification for tending to the needs
of the general public. Moreover, the Regulations by permitting
award of incentive marks to them and also providing for 50 per
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cent reservation in diploma courses indirectly recognise this
category of doctors as a separate class. [Para 29][719-H; 720A-B]
2.3 The question of providing a separate entry-path to
in-service doctors may have some effect on overall standard of
medical education at the postgraduate degree level institutions,
as the students who would gain admission to such courses may
not come purely on the basis of a uniform order of merit. But
that is not the manner in which the Court ought to interpret the
expression "standards" in institutions of higher education.
Analysis of Clause 9 of the Regulations reveals that the said
clause provides a minimum entry standard in the form of
clearance of the NEET on obtaining minimum of marks of 50
per cent by general category candidates. Once these standards
are laid down, if the State authorities provide an independent
channel of entry for in-service doctors in postgraduate medical
degree courses, who fulfil the aforesaid minimum standards,
provisions to that effect would not be in breach of the
constitutional scheme. The impact on the "standards", as the
expression is to be construed in Entry 66 of List I, would be far
too distant from admission norms framed by the State authorities
for such in-service doctors. The separate entry-channel for inservice doctors would be integral to the admission norms,
relatable to the Entry 25 of the Concurrent List. Such admission
norms if compatible with minimum standards laid down by the
MCI, would fall under the items specified against the aforesaid
entry of List III. [Para 32][720-G-H; 721-A-D]
2.4 The admission process stipulating a distinct source of
entry for in-service candidates by itself would not constitute
breach of the provisions of Clause 9 of the Regulations, provided
that the minimum standards mandated by the said Regulations
for being eligible to pursue postgraduate medical degree course
are adhered to. A separate source of entry for in-service doctors
through the State merit list would come within the legislative
power and competence of the State. Reservation for in-service
doctors has been a long standing practise and the rationale
behind such reservation appears to be reasonable. [Para 38][727A-C]
2.5 Clause 9(4) of the Regulations stipulates entry into the
postgraduate courses from the two merit lists, one all India and
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the other that of the State. If the State authorities provide
reservation for in-service doctors from within the State's own
merit list, such an exercise would be relatable to the admission
process and the same would not be in breach of any prohibition
flowing from the Regulations. This would entail some form of
variation of the merit list of the State, but there is no prohibition
under the Regulations against a State undertaking that exercise.
Such step undertaken by the State would be relatable to the
State's legislative power derived from Entry 25 of the
Concurrent List and not covered by the Regulations. There is
no repugnancy with the Regulations if the State authorities
create such a distinct channel of entry. [Para 39][727-D-F]
2.6 Reservation of in-service candidates was made through
Executive Orders of the State Government. Its original or earlier
version provided no provision for reservation or separate entrychannel for in-service doctors. The State Government Orders
laid down such distinct source of entry. Interpretation of the same
clause in its present form should also be based on the same
underlying reasoning. [Para 41][729-B-C]
2.7 Thus, there is no bar in Clause 9 of the Regulations
as it prevailed on 15th February 2012 and subsequently amended
on 5th April, 2018 on individual States in providing for
reservation of in-service doctors for admission into postgraduate
medical degree courses. But to take benefit of such separate
entry channel, the aspiring in-service doctors must clear the
NEET Examination with the minimum prescribed marks as
stipulated in the Regulations. Reservation for the category of
in-service doctors by the State would not be contrary to the
provisions of the Regulations. [Para 42][729-D-E]
State of U.P. v. Dinesh Singh Chauhan (2016) 9 SCC
749 : [2016] 6 SCR 571 - Not affirmed.
2.8 The statutory instruments of the respective State
Governments are expected to provide for such separate channel
of entry should make a minimum service in rural or remote or
difficult areas for a specified period mandatory before a candidate
could seek admission through such separate channel and also
subsequent to obtaining the degree. On completion of the
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course, to ensure the successful candidates serve in such areas,
the State shall formulate a policy of making the in-service doctors
who obtain entry in postgraduate medical degree courses
through independent in-service channel execute bonds for such
sum the respective States may consider fit and proper. [Para
43][729-G-H; 730-A]
Modern Dental College and Research Centre and
Others v. State of Madhya Pradesh and Others (2016)
7 SCC 353 : [2016] 3 SCR 579 - followed.
Sudhir N v. State of Kerala and Ors. (2015) 6 SCC
685 : [2015] 1 SCR 884 ; R. Chitralekha v. State of
Mysore [1964] 6 SCR 368 ; Kumari Chitra Ghosh and
Anr. v. Union of India & Ors. (1969) 2 SCC 228 :
[1970] 1 SCR 413 ; Gujarat University v. Krishna
Ranganath Mudholkar [1963] Supp 1 SCR 112 ; Dr.
Preeti Srivastava & Anr. v. State of M.P. & Ors. (1999)
7 SCC 120 : [1999] 1 Suppl. SCR 249 - referred to.
Case Law Reference
In the judgment of M.R. Shah, J.
[2018] 3 SCR 541
referred to
Para 2
[1970] 1 SCR 413
referred to
Para 3.11
[2001] 1 Suppl. SCR 506
referred to
Para 4.7(f)
[2018] 3 SCR 551
referred to
Para 8.2
[1999] 4 Suppl. SCR 364
referred to
Para 8.4
[2016] 3 SCR 579
followed
Para 10.1
[1963] Supp (1) SCR 112
relied on
Para 10.1
[1964] 6 SCR 368
relied on
Para 10.1
[1999] 1 Suppl. SCR 249
relied on
Para 10.1
[2004] 2 SCR 775
relied on
Para 10.1
(1971) 2 SCC 293
relied on
Para 10.2
[1984] 3 SCR 942
relied on
Para 10.2
[1986] 3 SCR 345
relied on
Para 10.2
A
B
C
D
E
F
G
H
599
[1996] 2 Suppl. SCR 184
relied on
Para 10.2
[2001] 2 Suppl. SCR 79
relied on
Para 10.2
[2003] 5 Suppl. SCR 152
relied on
Para 10.2
[2019] 12 SCR 848
relied on
Para 10.2
[2001] 1 SCR 490
relied on
Para 14.1
[2003] 1 Suppl. SCR 797
relied on
Para 14.2
[2015] 1 SCR 884
relied on
Para 14.3
[2016] 6 SCR 571
referred to
Para 14.4
(2016) 10 SCC 726
relied on
Para 15.2
[1991] 2 Suppl. SCR 267
relied on
Para 15.2
[1996] 2 Suppl. SCR 331
relied on
Para 15.2
[2019] 12 SCR 1011
relied on
Para 15.3
[1987] 2 SCR 468
relied on
Para 15.4
[1981] SCR 197
relied on
Para 15.6
[2015] 1 SCR 884
held not good law Para 18.1
[2016] 6 SCR 571
held not good law Para 18.1
In the judgment of Aniruddha Bose, J.
[2016] 6 SCR 571
Not affirmed
Para 12
[2015] 1 SCR 884
referred to
Para 12
[1964] 6 SCR 368
referred to
Para 16
[1970] 1 SCR 413
referred to
Para 16
[2016] 3 SCR 579
followed
Para 16
[1963] 1 Suppl. SCR 112
referred to
Para 18
[1999] 1 Suppl. SCR 249
referred to
Para 20
[2019] 12 SCR 848
relied on
Para 23
(1971) 2 SCC 293
relied on
Para 28
[2001] 1 SCR 490
relied on
Para 28
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[2001] 2 Suppl. SCR 79
relied on
Para 28
[2003] 1 Suppl. SCR 797
relied on
Para 28
[1992] 1 SCR 335
relied on
Para 29
[2001] 1 Suppl. SCR 506
relied on
Para 29
[2012] 10 SCR 204
relied on
Para 29
[1999] 3 SCR 594
relied on
Para 35
[1978] 2 SCR 1
relied on
Para 35
[1973] 1 SCR 822
relied on
Para 35
(2020) SCC Online SC 380
relied on
Para 36
[2004] 2 Suppl. SCR 238
relied on
Para 36
[1994] 2 SCR 644
relied on
Para 36
[1956] SCR 393
relied on
Para 36
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
196 of 2018.
[Under Article 32 of the Constitution of India]
With
Writ Petition (Civil) Nos. 252/2018, 295/2018, 293/2018, Civil
Appeal Nos. 3025/2020, 3026-3029/2020, 3030-3031/2020, 3032-3035/
2020, 3036/2020 and 3037/2020.
Aman Lekhi, ASG, Jayant Muthuraj, Balaji Srinivasan, AAGs,
Arvind Datar, Rakesh Dwivedi, Vinay Navare, Vikas Singh, Ms.
Meenakshi Arora, Sanjay R Hegde, C.S.Vaidhyanathan, V.Giri, Sr.
Advs., Ajay Bhargava, Ms. Vanita Bhargava, Ms. Saman Ahsan, Mr.
Rahul Unnikrishnan, Mr. Aayush Jain for Khaitan & Co., Soumitra G.
Chaudhuri, Chanchal Kumar Ganguli, Jose Abraham, M.P. Srivignesh,
Blessan Mathews, Robin Raju, Shashibhushan P Adgaonkar, Rana
Sandeep Bussa, Dr. Wolf Sandeep Bussa, Dr. Anni Jhon, Ms. Pradnya
S Adgaonkar, Motahar Hossain, Tejaswi Kumar Pradhan, Sarad Kumar
Singhania, Ms. Rashmi Singhania, Kuldeep Rai, Suman Baneerjee,
Jayesh Gaurav, Robin khokhar, Ranjan Mukherjee, Subhasish
Bhowmick, Nishesh Sharma, Anmol Chandan, Apoorva Kurup, G.S.
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Makker, Gaurav Sharma, Ankit Anandraj Shah, Saurabh Rajpal, Govind
Jee, Krishna Kumar Singh, M. Yogesh Kanna, Rahul Chitnis, Sachin
Patil, Jishnu. M. L, Ms. Priyanka Prakash, G. Prakash, Kathivel J., Amit
Kumar, Avijit Mani Tripathi, Ms. Rekha Bakshi, Shaurya Sahay, Kumar
Abhishek, Chetan Joshi, Atul Kumar, V. N. Raghupathy, M/S. S-Legal
Associates, Advs. for the appearing parties.
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. Leave & permission granted in the respective special leave
petitions.
2. After considering the judgment rendered by a three Judge
Bench of this Court in the case of State of U.P. v. Dinesh Singh
Chauhan1, another three Judge Bench, pursuant to order dated
13.4.2018 in the case of T.N. Medical Officers Association v. Union
of India2, has referred the present batch of cases to a larger Bench.
2.1 In the case of Dinesh Singh Chauhan (supra), a three Judge
Bench construed the provisions of Regulations 9(IV) and 9(VII) of the
MCI Postgraduate Medical Education Regulations, 2000, as amended
on 15.2.2012 (hereinafter referred to as the "MCI Regulations 2000").
In the case of Dinesh Singh Chauhan (supra), while considering the
aforesaid Regulations, this Court held that the aforesaid Regulations do
not provide for any reservation for in-service government doctors in
PG degree courses, and therefore, the State Government order providing
the reservation for PG degree courses for in-service government
doctors is held to be illegal.
2.2 The present batch of cases came up for hearing before
another Bench of three Judges. The Bench was of the opinion that the
present batch of cases require consideration by a larger Bench and that
is how the present batch of cases are referred to a larger Bench. On
the basis of the submissions made, the following reasons were
mentioned:
"(i) The decision in Dinesh Singh Chauhan1 has not
considered the entries in the legislative lists of the
1 (2016) 9 SCC 749
2 (2018) 17 SCC 478
TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS.