# THE STA TE OF MAD HY A PRADESH AND ORS v. GOPAL D. TIRTHANI AND ORS

- **Citation:** [2003] Supp. 1 S.C.R. 797
- **Court:** Supreme Court of India
- **Decided:** 2003-07-28
- **Case number:** Civil Appeal No. 5223 of2003
- **Bench:** R.C. Lahoti, Ashok Bhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-sta-te-of-mad-hy-a-pradesh-and-ors-v-gopal-d-tirthani-and-ors-19230
- **Pages:** 35

## Headnote

Education-Higher Education-Admission to Post Graduate Medical
Courses within State-Selection criteria:
A
B
Allocation of 20% seats in post graduation for in-service candidates- C
doctors in employment of State Government-Validity of-Held: Such a/location
is not a reservation but a separate and exclusive channel of entry or source
of admission-In-service candidates and open category candidates constitute
two classes based on intelligible differentia, having rational relation with
the object that the in-service candidates on attaining post graduate degree D
would be available for being posted in rural areas hy State GovernmentThus, there is reasonable nexus between classification and object sought to
be achieved-Hence, not violative of Article 14-Madhya Pradesh Medical
and Dental Post Graduation Entrance Examination Rules, 2003-Rule 8.5Madhya Pradesh Medical and Dental Post Graduation Entrance Examination
Rules, 2002-Rules 8.6./-Constitution of India, 1950-Article 14.
E
Separate entrance examinations for in-service and open category
candidates-Permissibility of-Held: There should be only one common
entrance test for determining the eligibility-A/so the minimum qualifYing
marks should not be lowered or relaxed contrary to Medical Council of India
Regulations-Medical Council of India Regulations-Regulation 9(/)(i) and F
9(1) first proviso.
Standard of assessment-Regulation 9(/)(i) providing selection on the
basis of merit as determined by competitive test conducted by Stale Government
and clause (iii) on individual cumulative performance in first, second and G
third MBBS examinations having passed ji-om the same University-State
Government combining Regulation 9(/)(i) and (iii) by resorting to clause
(iv)-Held: When there are more than one University in a State, their standard
and assessment method may differ-Thus, in Stale of MP there being more
than one University comparative merit of individual performance cannot be
797
H
798
SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A assessed by reference to Reg11lation 9(2J(iii) either singly or in combination
with cla11se (i)-Medica/ Co11ncil of India Regulations-Reg11lation 9(/){i),
(iii) and (iv).
Weightage for rural areas service to in-service doctors-Permissibility
of-Held: Reasonable weightage can be assigned to in-service doctors for
B having rendered specified number of years of service in rural areas for
purpose of determining inter se merit within class of in-service candidates
having qualified pre-PG lest-It also satisfies lest of Article 14-Madhya
Pradesh Medical and Dental Post Graduate Admission (In-service) Rules,
2002-Ru/es I and 2-Constitution of India, 1950-Article 14.
c
Weightage for rural service to in-service doctors, jive years for male
doctors and three years for female doctors-Valid1ty of-Held: Women
candidates having rendered three years consecutive service in rural areas
constitute a class based on intelligible differentia and are well-deflnedRelaxation in eligibility c!'iteria for female doctors for specified disciplineD Obstetrics, Gynaecology and Anaesthesia is reasonable and has nexus with
the object of serving women folk in villages, thus satisfies test of Article 14Madhya Pradesh Medical and Dental Post Graduate Admission (ln-servic~)
Rules, 2002-Rules I and 2-Constitution of India, 1950-Article 14.
The State Government of Madhya Pradesh promulgated Madhya Pradesh
E Medical and Dental Post Graduation Entrance Examination Rules, 2002. It
provided for allocation of 20% seats in post graduate courses for in-service
candidates-doctors in the employment of State Government and a!so exempted
them from taking PG Entrance examination. Thereafter, Madhya Pradesh
Medical and Dental Post Graduate Admission (In-Service) Rules, 2002 came
F to be promulgated, providing selection criteria for in-service candidates in
post graduate courses.
Separate pre-P.G. Entrance Examin11tion for year 2002-2003 was to be
held for open category candidates-doctors not in the employment o

## Text

_Characters 0–39,876 of 85,178. This is a partial read: ask again with offset=39876 for what follows._

THE STA TE OF MAD HY A PRADESH AND ORS
V.
GOPAL D. TIRTHANI AND ORS.
JULY 28, 2003
[R.C. LAHOTI AND ASHOK BHAN, JJ.]
Education-Higher Education-Admission to Post Graduate Medical
Courses within State-Selection criteria:
A
B
Allocation of 20% seats in post graduation for in-service candidates- C
doctors in employment of State Government-Validity of-Held: Such a/location
is not a reservation but a separate and exclusive channel of entry or source
of admission-In-service candidates and open category candidates constitute
two classes based on intelligible differentia, having rational relation with
the object that the in-service candidates on attaining post graduate degree D
would be available for being posted in rural areas hy State GovernmentThus, there is reasonable nexus between classification and object sought to
be achieved-Hence, not violative of Article 14-Madhya Pradesh Medical
and Dental Post Graduation Entrance Examination Rules, 2003-Rule 8.5Madhya Pradesh Medical and Dental Post Graduation Entrance Examination
Rules, 2002-Rules 8.6./-Constitution of India, 1950-Article 14.
E
Separate entrance examinations for in-service and open category
candidates-Permissibility of-Held: There should be only one common
entrance test for determining the eligibility-A/so the minimum qualifYing
marks should not be lowered or relaxed contrary to Medical Council of India
Regulations-Medical Council of India Regulations-Regulation 9(/)(i) and F
9(1) first proviso.
Standard of assessment-Regulation 9(/)(i) providing selection on the
basis of merit as determined by competitive test conducted by Stale Government
and clause (iii) on individual cumulative performance in first, second and G
third MBBS examinations having passed ji-om the same University-State
Government combining Regulation 9(/)(i) and (iii) by resorting to clause
(iv)-Held: When there are more than one University in a State, their standard
and assessment method may differ-Thus, in Stale of MP there being more
than one University comparative merit of individual performance cannot be
797
H
798
SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A assessed by reference to Reg11lation 9(2J(iii) either singly or in combination
with cla11se (i)-Medica/ Co11ncil of India Regulations-Reg11lation 9(/){i),
(iii) and (iv).
Weightage for rural areas service to in-service doctors-Permissibility
of-Held: Reasonable weightage can be assigned to in-service doctors for
B having rendered specified number of years of service in rural areas for
purpose of determining inter se merit within class of in-service candidates
having qualified pre-PG lest-It also satisfies lest of Article 14-Madhya
Pradesh Medical and Dental Post Graduate Admission (In-service) Rules,
2002-Ru/es I and 2-Constitution of India, 1950-Article 14.
c
Weightage for rural service to in-service doctors, jive years for male
doctors and three years for female doctors-Valid1ty of-Held: Women
candidates having rendered three years consecutive service in rural areas
constitute a class based on intelligible differentia and are well-deflnedRelaxation in eligibility c!'iteria for female doctors for specified disciplineD Obstetrics, Gynaecology and Anaesthesia is reasonable and has nexus with
the object of serving women folk in villages, thus satisfies test of Article 14Madhya Pradesh Medical and Dental Post Graduate Admission (ln-servic~)
Rules, 2002-Rules I and 2-Constitution of India, 1950-Article 14.
The State Government of Madhya Pradesh promulgated Madhya Pradesh
E Medical and Dental Post Graduation Entrance Examination Rules, 2002. It
provided for allocation of 20% seats in post graduate courses for in-service
candidates-doctors in the employment of State Government and a!so exempted
them from taking PG Entrance examination. Thereafter, Madhya Pradesh
Medical and Dental Post Graduate Admission (In-Service) Rules, 2002 came
F to be promulgated, providing selection criteria for in-service candidates in
post graduate courses.
Separate pre-P.G. Entrance Examin11tion for year 2002-2003 was to be
held for open category candidates-doctors not in the employment of the State
Government and in-service candidates-Assistant Surgeons (doctors) in the
G employment of the State Government However, before holding orthe tests writ
petitions were filed challenging the constitutional validity of PG Entrance
Examination Rules, 2002 and PG Admission (In-Service) Rules, 2002. High
Court passed an interim order and permitted holding of the entrance
examinations as scheduled. It, however, stayed the declaration of results.
Meanwhile during pendency of the writ petitions, the process of admission to
H post graduation courses for year 2003-2004 was initiated. State Government
STATEv. GOl'AL D. TIRTHANI
799
promulgated Madhya Pradesh Medical and Dental Post Graduation Entrance A
Examination Rules, 2003. Thereafter, common entrance test for both
categories of candidates was held and results were declared'. 36 in-service
candidates cleared the pre-PG Test 2003 and were allotted seats in post
graduation in the counselling. Two rounds of counselling were held. Third
and last round of counselling was postponed by the State Government.
Thereafter, the High Court disposed of the writ petitions holding that
the reservation of 20% seats for in-service candidates is valid; that there
has to be common entrance test for determining the comparative merit for
entrance into the post-graduate medical courses; and that the weightage given
B
to in-service candidates, male or female, in lieu of rendering services in rural C
areas is violative of Article 14 of the Constitution. The examination of the inservice candidates came to be nullified and no in-service candidate was allowed
admission in post graduation courses for year 2002-2003. Thereafter, some
of the in-service candidates filed writ petitions challenging the weightage given
to the period of service spent in rural/tribal areas by the candidates, relaxed
eligibility test for women candidates serving in rural areas; and the State D
Government taking recourse to Regulation 9(2)(iv) and combining Regulation
9(2)(i) and 9(2)(iii) determined the academic merit of in-service. Division
Bench of High Court disposed of writ petitions holding that in the State of
Madhya Pradesh there being five Universities, Regulation 9(2)(iii) is not
applicable; that there has to be a common entrance examination for judging E
the merits of the candidates; that the in-service candidates too must obtain
the qualifying marks in the common entrance examination; and that a
comparative merit list shall be drawn of the successful in-service candidates
inter se to fill up the quota, which is 20%. Hence the present appeals.
Partly allowing the appeals, the Court
F
HELD: I.I. The rural health services need to be strengthened. In the
State of Madhya Pradesh, 229 Community Health Centers (CHCs) and 169
First Referral Units (FRUs) need to be manned by Specialists and Block
Medical Officers who must be post graduates. Therefore, there is nothing
wrong in the State Government setting apart a definite percentage of seats at G
post graduation level consisting of degree and diploma courses exclusively
for the in-service candidates. The allocation of 20% seats in post graduation
in the Universities of Madhya Pradesh for in-service candidates is not a
reservation; it is a separate and exclusive channel of entry or source of
admission, the validity whereof cannot be determined on the constitutional H
800
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A principle applicable to communal reservations. Such two channels of entry
or two sources of admission is a valid provision. j819-G-H; 827-E-FI
1.2. In-service candidates and open category candidates are two classes
based on an intelligible differentia. There is a laudable purpose sought to be
achieved that the in-service candidates, on attaining higher academic
B achievements, would be available to be posted in rural areas by the State
Government. It is not that an in-service candidate would leave the service
merely on account of having secured a post graduate degree or diploma though
by virtue of being in the service of the State Government. If there is any
misapprehension the same is allayed by the State Government obtaining a
C bond from such candidates as a condition precedent to their taking admission
that after completing PG Degree/Diploma course they would.serve the State
Government for another five years and also a bank guarantee of rupees three
lakhs is required to be submitted. Thus, there is a perceptible reasonable
nexus between the classification and the object sought to be achieved.
D
1820-A-CI
K. Duraiswamy and Anr. v. State o[Tamil Nadu and Ors., 12001 j 2 SCC
538 and Al/MS Students' Union v. A/IMS and Ors., [200211 SCC 428, referred
to.
2.1. The eligibility test, called the entrance test or the pre-PG test, is
E conducted with dual purposes. Firstly, it is held with the object of assessing
the knowledge and intelligence quotient of a candidate whether he would be
able to prosecute post-graduate studies if allowed an opportunity of doing so;
secondly, it is for the purpose of assessing the merit inter se of the candidates
which is of vital significance at the counseling when it comes to allotting the
F successful candidates to different disciplines wherein the seats are limited _
and some disciplines are considered to be more creamy and are more coveted
than the others. Therefore, the concept of a minimum qualifying percentage
cannot be given a complete go by. It cannot be lowered or relaxed contrary to
Medical Council of India Regulations framed in this behalf. If at all there can
be a departure, that has to be minimal and that too only by approval of experts
G in the field of medical education.1822-F-HI
2.2. At present, the Medical Council of India, insists, through its
Regulations, on a common entrance test being conducted whereat the minimum
qualifying marks would be 50%. State of Madhya Pradesh must comply with
the requirements of the Regulations framed by the Medical Council of India
H and hold a common entrance test even if there are two separate channels of
...
STATEv. GOPAL D. TIRTHANI
801
entry and allow clearance only to such candidates who secure the minimum A
qualifying marks as prescribed by the MCI Regulations. State of Madhya
Pradesh was not justified in holding and conducting a separate entrance test
for in-service candidates. If the State has a case for making a departure from
such rule or for carving out an exception in favour of any classification then
it is for the State to represent to the Central Government and/or Medical
Council of India and make out a case of justification. 1823-A-BI
B
State of Punjab v. Dayanand Medical College and Hospital and Ors.,
120011 8 sec 664, relied on.
2.3. The in-service candidates may have been away from academics and
theories because of being inservice. Still they need to be assessed as eligible C
for entrance in PG. For taking up such examination, they must either keep
updating themselves regularly or concentrate on studies preparatory to
entrance examinations but without sacrificing or compromising with their
obligations to the people whom they are meant to serve on account of beini in
State services. 1823-C-DI
D
Dr. Preeti Srivasatva and Anr. v. State of M.P. and Ors., 119991 7 SCC
120; Ajay Kumar Singh and Ors. v. State of Bihar and Ors., 119941 4 SCC
401; Nivedita Jain, 119811 4 SCC 296; Post Graduate Institute of Medical
Education and Research, Chandigarh and Ors. v. KL. Narasimhan, (199716
SCC 283; Dr. Sadhna Devi and Ors. v. State of U.P. and Ors., 1199713 SCC E
90; Pre-PG Medical Sangharsh Committee and Anr. v. Dr. Bajrang Soni and
Ors, 120011 8 SCC 694 and State of Punjab v. Dayanand Medical College
and Hospital and Ors., 120011 8 SCC 664, referred to.
3. State of Madhya Pradesh could not have devised a formula by
combining clause (i) of Regulation 9(1) providing selection of students to F
postgraduate medical courses on the basis of merit as determined by a
competitive test conducted by the State Government and clause (iii) providing
selection on the basis of the individual cumulative performance at the first,
second and third MBBS examinations, if such examinations have been passed
from the same University by resorting to clause (iv). When there is only one G
University in one State, the standard of assessment can reasonably be assumed
to have been the same for assessing the academic merit of the students passing
from that University. When there are more Universities than one in a State,
the standards of different Universities and their assessment methods cannot
obviously be uniform and may differ. Then it would be futile to assess the
comparative merit of individual performance by reference to clause (iii). H
802
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A Recourse can be had to clause (iii) when there is only one University. The
High Court rightly held that in the State of Madhya Pradesh, where five
Universities exist, the method of evaluation contemplated by clause (iii) is not
available either in substitution of or in addition to clause (i). The candidates
qualified at the Pre-PG or entrance test held in common for in-service and
open category candidates, would then be divided into two separate merit lists
B to be prepared and merit inter se of the successful candidates shall be
available to be assessed separately in the two respective categories.
[823-E-H[
4. Assistant Surgeons-Medical Graduates entering the State services
C are not temperamentally inclined to go to and live in villages so as to make
available their services to the rural population; they have a temptation for
staying in cities on account of better conditions, better facilities and better
quality of life available not only to them but also to their family members so
also better educational facilities in elite schools which are to be found only in
cities. In-service doctors being told in advance and knowing that by rendering
D service in rural/tribal areas they can capture better prospects of earning
higher professional qualifications, and consequently eligibility for promotion,
acts as motivating factor and provides incentive to young in-service doctors
to opt for service in rural/tribal areas. In the set up of health services in the
State of Madhya Pradesh and the geographical distribution of population it is
E permissible to assign a reasenable weightage for service rendered in rural/
tribal areas by in-service candidates for the purpose of determining inter se
merit within the class of in-service candidates who have qualified in the prePG test by securing the minimum qualifying marks as prescribed by the
Medical Council oflndia. The weightage would have the effect of altering the
order of merit only as amongst the candidates entering through the exclusive
F channel of admissions meant for in-service candidates. Had it been a
reservation, considerations would have differed. It also ~atisfies the twin tests
of Article 14 of the Constitution. Further, there is no specific challenge to
the quantum ofweightage and in the absence of any material being available
on record the rule of weightage as framed cannot be faulted with. While
recasting and reframing the rules, the State Government shall take cai;e to
G see that the weightage assigned is reasonable and is worked out on a rational
basis. (826-C-F[
Dr. Dinesh Kumar and Ors. (II) v. Motilal Nehru Medical College,
Allahabad and Ors., [1986) 3 SCC 727; Dr. Snehelata Pattnaik and Ors. v.
H State of Orissa and Ors., [1992) 2 SCC 26 and Dr. Narayan Sharma and Anr.
STATEv. GOPAL D. TIRTHANI
803
v. Dr. Pankaj Kr. lehkar and Ors., 120001 t SCC 44, referred to.
State of Uttar Pradesh and Ors. v. Pradip Tandon and Ors., 119751 t
sec 267, distinguished.
A
5. Women candidates constitute a class by themselves and those women
who have rendered service in rural areas for a period of three consecutive B
years also constitute a class based on intelligible differentia and are welldefined. The provision of relaxed or reduced eligibility criteria by reference
to continuous service rendered in rural areas for the purpose of sponsorship
by the State Government in specified disciplines-Obstetrics and Gynaecology
and Anaesthesia which have utility for serving women folk in village does not C
suffer from the vice of invidious discrimination. It is not unreasonable and
has nexus with the object sought to be achieved, thus, satisfying the twin tests
of Article 14 of the Constitution. 1827-A-B; 828-B-Cj
6. The in-service candidates who were eligible to take PG entrance test
for the year 2002 and actually took the same as also the in-service candidates D
who are eligible to take PG entrance test for the year 2003, should both be
allowed an opportunity of participating in the PG entrance examination which
may now be arranged subject to their satisfying the sponsorship criteria. A
consolidated merit iist of successful in-service candidates shall be prepared.
Thereafter, counselling for in-service candidates shall be held as per the
consolidated merit list of successful in-service candidates. In the absence of E
requisite number of in-service doctors qualifying at the Pre-PG test, the seats
to the extent to which they remain vacant because of the requisite number of
in-service candidates not qualifying, should be diverted to open category
candidates so that the seats are not wasted. 1829-B-DI
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5223 of2003.
From the Judgment and Order dated 15.5.2003 of the Madhya Pradesh
High Court in W.P. No. 1933 of2003.
WITH
C.A. Nos. 5224-5226 of2003.
F
G
A.K. Chitale, Vivek Tankha, Advocate General for State, W.A. Nomani,
Salish K. Agnihotri, P.N. Puri, Atul Nanda, Ms. Veena Nanda, Maninder
Singh, Mrs. Pratibha M. Singh, Ankur Talwar, Kirti Mann Singh, Sanjeev
Sachdeva, B.S. Banthia, Naveen Shanna, Niraj Sharma, M. Mannan, Sakesh H
804
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A Kumar, Ashok Kumar Singh, Dr. K.S. Chauhan, Chand Kiran, A.P. Natarajan
and Javed A. Warsi for appearing parties.
The Judgment of the Court was delivered by
R.C. LAHOTI, J. Leave granted in all the Special Leave Petitions.
B
Imparting instruction and giving education was philanthropy -a pious
duty - in the past, and later a service. In recent times if has developed into
a business and now it stands recognized as an industry. A sizeable amount
of litigation centres around medical education. The national wealth of available
seats is scarce while the aspirants, desirous of sharing such wealth, are
C numerous. Every attempt at laying down criteria for choosing the more
deserving out of the several aspirants is subjected to challenge before the
Constitutional Courts of the country. This time it is the State of Madhya
Pradesh which is at the receiving end and the issue is quota of seats for inservice candidates. Carving out a quota for in-service candidates by the State
D Government, assigning weightage for rural service, sub-classification within
classification for women candidates who have rendered rural service, and
holding of a separate eligibility test for determining the merit of in-service
candidates as distinguished from open category candidates, are the issues
canvassed before the High Court and reiterated before this Court by the
parties especially the State of Madhya Pradesh. For the purpose of this
E judgment it is not necessary for us to enumerate the facts of each individual
petition as there were many before the High Court. It would suffice to note
the bones of contention in the backdrop of a few bare essential events in their
chronological order.
F
In the State of Madhya Pradesh, as it exists today, subsequent to the
reorganization effected on November I, 2000, leading to carving out of the
State of Chhattisgarh, there are five Universities imparting medical education
at under-graduate and post-graduate levels of studies. There are 620 undergraduate seats while the seats at post-graduate level of studies are 537,
consisting of degree and diploma courses both. A quota of 89 seats is
G earmarked for in-service candidates, i.e., the doctors in the employment of the
State Government.
Madhya Pradesh, a State with a large land spread, still lives in villages.
The number of inhabited villages is 51,806 divided into 313 Blocks for the
H purpose of health services administration. There are 8835 sub-health centers
which are the smallest rural units of public health service covering a population
STATE v. GOPAL D. T!RTHANI(R.C. LAHOTI, .I.]
805
of 3000 in tribal areas and 5000 in general or non-tribal areas. At each sub- A
health centre, an ANM (auxiliary nurse midwife) and a multi purpose male
health worker is posted. There are 1194 primary health centres which are rural
health units providing curative medical care and preventive health care covering
a population of around 50,000 of which 20,000 is tribal. One MBBS medical
officer with para-medicos is posted at PHCs. There are 229 community health B
centers situated at Block/Tehsil Headquarters. Ideally, post graduate medical
officers in Surgery, Obstetrics & Gynaecology, Anaesthesia, Medicine and
specialized in Paediatrics under overall supervision of a Block Medical Officer
need to be posted at each such Community Health Centre (CHC). Then there
are 169 First Referral Units (FRU) which are community health centers equipped
with new-born care equipment, surgical equipment for emergency obstetric C
care and care of high risk neonates. Post-graduate medical officers specially
having qualified in Obstetrics & Gynaecology, Anaesthesia and Paediatrics
are required to be posted at such first referral units so as to prevent mother
and infant casualties. The total sanctioned posts in the cadre of medical
officers called Assistant Surgeons, which includes Physicians as well, is 4670 D
against which only 3865 posts are presently occupied. The occupants include
those medical officers who are recruited as a temporary measure on contract
basis for a short term. 805 posts are lying vacant. As to the posts which
require PG Degree/Diploma, the position is as under:-
Cadre
Strength
Posted
Vacant
Class-I Specialists
739
530
209
Class-I Specialists in CHCs
258
82
176
Medical Officers Class-II with 1606
134
1472
PG Degree
+302
+45
+257
To be promoted as 'Specialist/District Health Officer, the candidate must
have rendered a particular length of service in the cadre of' Assistant Surgeon'
E
F
and should also have secured a post-graduate degree in medical science. So G
much is to picturise the need of doctors in civil services of the State of
Madhya Pradesh. The services are starving for qualified personnel. This
much is apparent.
Regulation No.9 of the Regulations framed by the Medical Council of
India reads as follows:
H
806
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A
"9. Selection of Postgraduate students
(I) Students for postgraduate medical courses shall be selected strictly
on the basis of their academic merit.
For determining the academic merit, the University/Institution may
B
adopt any one of the following procedures both for degree and
diploma course:
(i)
On the basis of merit as determined by a competitive test
conducted by the State Government or by the competitive
authority appointed by the State Government or by the University/
C
group of Universities in the same state;
D
(ii)
On the basis of merit as determined by centralized test held at the
National level; or
(iii) On the basis of the individual cumulative performance at the first
second and third MBBS examinations, If such examinations have
been passed from the same University or
(iv) Combination of (i) and (iii)
Provided that whatever entrance test for postgraduate/admissions
is held by a State Government or a university or any other authorized
E
examining body, the minimum percentage of marks for eligibility for
admission to postgraduate medical course shall be fifty per cent for
all the candidates:
Provided further that in non-Governmental institutions fifty percent
of the total seats shall be filled by the competent authority and the
F
remaining fifty-percent by the management of the institution on the
basis of merit."
(emphasis supplied)
It is not disputed that the Regulations are binding and have the force
of law. No educational institution can award a degree in medical sciences
G unless it satisfies the requirement of the Regulations.
On 14th Janua1y, 2002, the Department of Medical Education, Government
of Madhya Pradesh promulgated the Madhya Pradesh Medical and Dental
Post Graduation Entrance Examination Rules 2002 (hereinafter referred to as
H 'P.G. Entrance Examination Rules 2002', for brief) published in Madhya Pradesh
Government Gazette Extraordinary dated 14.1.2002. The relevant part of the
STATEv. GOP AL D TIRTHANI [R.C. LAHOTI, J.]
rules is extracted and reproduced hereunder:-
"MADHY A PRADESH MEDICAL AND DENTAL POST
GRADUATION
ENTl;lANCE EXAMJNA TION RULES, 2002
Bhopal, the 14th January 2002
807
A
B
No. F-5-7-2002-LV-M.E.-1-Department of Medical Education,
Government of Madhya Pradesh, Mantralaya Bhopal vide their
endrosement No.F-5-7-2002-LV-M.E.-1, dated the 14th January 2002
make and issue the following Rules for entrance allotment and admission
to post graduate Degree/Diploma Course in Medical and Dental College
in the State of Madhya Pradesh:-
C
RULFS
1.0 Title-These rules will be known as "Madhya Pradesh Medical
and Dental P.G. Entrance Examination Rules, 2002" these rules
will be effective from their publication in "Gazette of Madhya D
Pradesh".
xxx
xxx
JOO(
8.0 Reservatio.n-21 % seats are reserved for candidates belonging
to scheduled tribe, 15% seats are reserved for candidates
belonging to scheduled caste and 14% seats are reserved for E
candidates belonging to other backward classes.
8.1. Women's reservation shall be 30% horizontal and floating
according to merit cum choice.
82. The minimum percentage of marks for eligibility for admission to F
post graduate medical courses shall be 40% for SC/ST/OBC
candidates and 50% for Unreserved category candidates.
xxx
JOO(
8.6. I For employees of Government of Madhya Pradesh (In-service)
20% seats in PG Degree/Diploma course have been reserved. G
8.6.2 They are exempted from Pre-PG entrance examination and shall
be nominated for doing post graduation in various Degree/
Diploma Courses as per selection criteria, terms and condition
of employer department.
H
808
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A
8.6.3 Selection will be done on the basis of the individual cumulative
B
c
performance at the first, second and third MBBS examination if
such examination have been passed from the same university.
8.6.4 Further the service period, length of rural service etc. will also
be taken into co~sideration by employer department for
nomination.
8.6.5 The In-service candidate will not be entitled for admission for
three years (excluding 2002) if nominated and did not join or join
but left the seats in mid term due to any reason.
xxx
xx)('
The Public Health and Family Welfare Department of Government of
Madhya Pradesh promulgated the Madhya Pradesh Medical and Dental Post
Graduation Admission (In-service) Rules, 2002 (hereinafter referred to as 'PG
Admission (in-service) Rules 2002', for briet) published in the Madhya Pradesh
Government Gazette Extraordinary dated 28th March, 2002. Relevant part of
D these rules is extracted and reproduced hereunder:-
"MADHYA PRADESH MEDICAL AND DENTAL POST GRADUATE
ADMISSION (IN-SERVICE) RULES, 2002.
No. F-5-7-2002-XVIl-M.E.-l-Vide endorsement No. F-5-7-2002E
LV-M.E.-1, dated 14th January 2002, Department of Medical Education,
Government of Madhya Pradesh, have issued "Madhya Pradesh
Medical and Dental Post Graduate Entrance Examination Rules, 2002",
for entrance allotment and admission to Post Graduate Degree/Diploma
Course in Medical and Dental College in the State of Madhya Pradesh.
F
G
H
These rules provide for reservation of 20% seats in Post Graduate
Degree/Diploma Courses for in-service employees of Government of
Madhya Pradesh. It is further provided in the rules that the nomination
of candidates for doing Post Graduation in various Degree/Diploma
Courses will be as per selection criteria, terms and conditions of
employer department.
Therefore, it has become necessary to formulate rules providing
for selection criteria, terms and conditions for nominations of
candidates serving under the State Governments, for Degree/Diploma
Courses in various Medical & Dental College in the State of Madhya
Pradesh.
STATE v. GOPAL D. TIRTHANI [R.C. LAHOTI, J.]
809
Accordingly, the State Government, vide endorsement No. F.2-1- A
2002-XVII-M-1, dated 28-03-2002, of the Department of Public Health
and Family Welfare, Government of Madhya Pradesh Mantralaya,
Bhopal, make and issue the following rules for admission to Post
Graduate Degree/Diploma course in Medical & Dental Colleges in the
State of Madhya Pradesh.
Title.- These rules will be known as "Madhya Pradesh Medical
and Dental Post Graduate (In-service) Admission Rules, 2002." These
rules will come into force from the date of their notification in the
Gazette of Madhya Pradesh and will apply to doct;irs serving under
various department of the State Government.
xxx
xxx
B
c
Selection Criteria.-1. Only those candidates who have completed
5 years of service under the Government of Madhya Pradesh and who
are not serving on contractual basis will be eligible for selection as
candidates who are in-service.
D
Women candidates, who have served for three consecutive years
in rural areas, will also be eligible even if they have not completed
a total of five years of service.
Relaxation for such women candidates with less than five years E
of service will, however, be subject to the conditions that they will be
entitled to selection for post-graduate courses in Obstetrics &
Gynaecology and Anasesthesia only.
2. For the purpose of selection of candidates who are in-service,
following weightage in marks will be assigned:
F
(a)
30% marks on the basis of individual integrated performance at
the first, second and third MBBS examination.
(b) 30% marks will be given on the basis of length of service in the
rural/tribal areas.
2 marks will be awarded for every 6 months of service in a rural
area.
I additional mark will be given if this area falls under the tribal
sub-plan.
G
*Thus any candidate, who has served for five years in a rural H
A
B
c
D
E
810
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
area under a tribal sub-plan area, can earn a maximum of 30 marks
under this criterion, similarly for serving five years in a rural area
other than tribal sub-plan area, the candidate will get a maximum
of20 marks.
c. 40% marks will be awarded on the basis of a written examination
conducted by Madhya Pradesh Professional Examination Board.
*This will be a separate and limited examination confined who are
in-service, for selection from amongst themselves.
3.
The maximum age limit for selection as candidates who are inservice shall be 45 years.
xxx
)0()(
Terms and Conditions. I. Every candidate who is in-service will
have to deposit an examination fee as stipulated by the Madhya
Pradesh Professional Examination Board.
2. Such candidates will have to furnish a bond of serving the
State Government for another 5 years after completing P.G. Degree/
Diploma Course.
*They will also submit a bank guarantee of Rs. 3.00 lakhs along ·
with the bond."
(emphasis supplied)
It is not disputed that the abovesaid two rules, though called 'rules' are
not statutory; they have the effect of instructions or guidelines issuc.d in
exercise of executive power of the State Government. In the P.G. Entrance
F Examination Rules, 2002 which make provisions for the entrance test being
conducted by the State Government, 20% seats are allocated for in-service
candidates i.e. for medical graduates who are in the employment of the State
Government. They are exempted from taking PG Entrance or Pre-PG
examination. Such candidates are obviously governed by the service rules of
G the State. Being subject to such Conduct Rules they cannot sit in any
examination or divert themselves to educational studies except by the leave
of the department which they are serving and in accordance with the relevant
Service Rules. The Department has laid down its own criteria for selecting
such in-service Assistant Surgeons as would be allowed to prosecute PG
studies against the seats available in that quota. The P.G. Admission (inH service) Rules 2002 lay down and declare the policy of the State Government
STATEv.GOPALD.TlRTHANI[R.C. LAHOTI.J.]
811
in the matter of permitting in-service candidates for acquiring post-graduate A
qualifications and the eligibility criteria subject to satisfaction whereof the
candidates will be selected and permitted to take up the entrance examination
and prosecute post-graduate course of studies. The provisions contained in
the two sets of rules are overlapping and are also inconsistent to some extent.
The rules framed by Department of Medical Education called P.G. Entrance
Rules, 2002, vide Rule 8.6.2 exempt the in-service candidates from Pre-PG B
entrance examination and allow their entry in post-graduate classes within the
allocated quota only upon nomination being made by the State Government,
subject to their fulfilling selection criteria and the terms and conditions of
their employer department. The PG Admission (Jn-service) Rules framed by
the Public Health and Family Welfare Department, vide Rule 2 under Selection C
Criteria, provide for a different mechanism including 40% marks to be awarded
on the basis of a written examination conducted by Madhya Pradesh
Professional Examination Board which is to be held separately for in-service
candidates. This overlapping and inconsistency (though we have pointe<;I it
out) need not detain us as it is immaterial in so far as the controversy arising
for decision in the present case is concerned and in view of the law as is D
being stated hereinafter.
For the sake of convenience, we would refer in this judgment to the
Assistant Surgeons in the employment of the State Government as 'in-service
candidates' and to the doctors taking up the P.G. Entrance Examination who E
are not in the employment of the State Government, as 'open category
candidates.' The qualifying examination for entrance to post-graduate is called
Pre-P.G. Entrance Examination and is conducted by M.P. Professional Entrance
Test Board ('PET Board', for short), an autonomous body. On 24.3.2002,
examination for the year 2002-03 (hereinafter referred to as '2002 Entrance
Test', for short) was held for open category candidates. The entrance test for F
in-service candidates was held on 16.6.2002, Thus, two separate entrance
tests were held: one for open category candidates, and the other for in-service
candidates. However, much before the holding of the tests, writ petitions were
filed in the High Court of Madhya Pradesh laying challenge to the constitutional
validity of P.G. Entrance Examination Rules, 2002 and P.G. Admission (in- G
service) Rules, 2002. The High Court, by interim orders passed in the writ
petitions, permitted the entrance examinations being held as scheduled but
directed the declaration of results to remain stayed. On 20th February, 2003,
the High Court pronounced its decision disposing of a batch of writ petitions.
The High Court struck down as ultra vires the P.G. Admission (in-service)
Rules, 2002 based on the following findings arrived at by it:-
H
812
SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A
"(a) There can be reservation for in-service employees for post
B
c
D
graduate medical courses and reservation made for the said
employees in 2002 Rules does not suffer from any constitutional
invalidity.
(b) There has to be common entrance examination for admission in
post graduate medical course so as to test the comparative merit.
(c)
The "In-Services Rules" which provide for separate and limited
examination for in-services candidates contravenes the basic tenet
and principle enunciated in the Regulations framed by the Medical
Council of India and, therefore, the same is ultravires.
(d) Conferral of benefit by grant of weightage to some in-service
candidates/employees on the basis of their rendering services in
rural areas is hit by Article 14 of the Constitution as well as
stands in oppugnation to the Regulation framed by the Medical
Council of India and hence, is invalid and is liable to be struck
down.
(e)
The distinction made between the in-service women employees/
women candidates who have served in rural areas for three years
and other women candidates who have rendered service in other
areas is discriminatory.
E
(f)
The stance put forth by some of the petitioners that there has
to be some reservation for the category of employee who are the
Assistant Surgeons from amongst the quota meant of in-service
candidates is devoid of any substance and hence, deserves
rejection.
F
(g) The limited and separate examination which has already been
held can not be given the stamp of approval because we have
already held that in-service candidates Rules 2002 are
unconstitutional."
In substance, the High Court upheld the validity of reservation of 20%
G seats out of the total in favour of in-service candidates. It held that the inservice candidates and open category candidates had to be subjected to one
common entrance test for determining the comparative merit for entrance into
the post-graduate courses of study, and that the holding of two separate
tests-one for in-service candidates and one for open category candidatesH was unsustainable, being in contravention of the Regulations, framed by the
STATEv. GOPAL D. TIRTHANI [R.C. LAHOTI,.J.]
813
Medical Council of India and the pronouncement of this Court in Dr. Priti A
Srivastava 's case (infra). The weightage given to in-service candidates, male
or female, in lieu of rendering services in rural areas was violative of Article
14 of the Constitution. The claim of the writ petitioners who were Assistant
Surgeons, as distinguished from Physicians and discharging duties in various
disciplines of medical and health services other than surgery, for carving out
a quota meant exclusively for them was declined. This aspect of the B
controversy has not been pursued further and stands buried with the judgment
of the High Court.
While the abovesaid writ petitions were pending in the High Court and
the fate thereof was awaited, the time became ripe for commencing the process C
of admission to post-graduation seats of 2003-2004. On 18th February, 2003,
the State Government promulgated the Madhya Pradesh Medical and Dental
Post Graduation Entrance Examination Rules, 2003 (hereinafter referred to as
'PG Entrance Examination Rules 2003', for short) published in the Madhya
Pradesh Government Gazette Extraordinary dated 18.2.2003. The rules are
stated to have been framed in exercise of powers conferred by Section I 0 of D
Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973 (M.P.
Act No. 19 of 1973). However, it was stated at the Bar that it is doubtful
whether Section I 0 of Act No. 19 of 1973 confers powers on the State
Government to frame such rules as that Act provides for proper regulation
of institutions of medical education in the State and does not deal with E
admissions to the institutions of medical education. However, that is not the
ground of challenge and we need not dwell any further on that issue; for, the
rules, if not statutory, would yet have the effect of executive instructions or
guidelines issued in exercise of the executive power of the State. The fact
remains that these rules, once they came into effect, repealed and superseded
the preceding rules, i.e. P.G.