JUDGMENT IN REVIEW :
Dealing with a challenge1 to the constitutionality of Section 5(4) of the Kerala Medical Officers’ Admission to Postgraduate Courses under Service Quota Act, 2008 which provides for a select list of in-service medical officers for postgraduate medical education to be based strictly on the basis of seniority, the Supreme Court has held that "a meritorious in-service candidate cannot be denied admission only because he has an eligible senior above him though lower in merit. It is now fairly well settled that merit and merit alone can be the basis of admission among candidates belonging to any given category. In service candidates belong to one category. Their inter-se merit cannot be overlooked only to promote seniority which has no place in the scheme of MCI Regulations."
The
Bench comprising of Justice T S Thakur and Justice R. Banumathi was considering
batch of appeals arising out of a
judgment and order dated 30th March 2011 passed by the High Court of Kerala
at Ernakulam in Writ Petitions No.1014 of 2009 and 2610 of 2010 filed by the
respondents which had been allowed by the High Court with the direction
that selection of
in-service medical officers for post-graduate medical education under Section 5(4) of the Kerala Medical Officers’ Admission to Postgraduate
Courses under Service Quota Act, 2008 (Kerala Act 29 of 2008) shall be made
strictly on the basis of inter se seniority of the candidates who have
taken the common entrance test for post-graduate medical education and have
obtained the minimum eligibility bench mark in that test in terms of the
Regulations framed by the Medical Council of India.
The Background facts:
Forty percent of the seats available in
the State of Kerala for post-graduate medical admission are reserved for
in-service doctors serving in the Health Service Department, Medical College
lecturers and doctors serving in theEmployees State Insurance Department of the
State. As per the practice prevalent before the enactment of the impugned
legislation admissions against such reserved seats were made on the basis of
seniority of in-service candidates in each category. Post Graduate Medical
Education Regulations of Medical Council of India, 2000, however, made it
mandatory for all candidates seeking admission to post-graduate medical courses
to appear for a common entrance examination. The Regulations, inter-alia,
provide that candidates who appears in the common entrance examination and
secure 50% in the case of general category candidates and 40% in the case of
SC/ST candidates alone shall be qualified for such admission. Consequently,
even in-service candidates had to appear and qualify in the common entrance
examination.
Considering
the hardships faced by in-service candidates who were working around the clock
for the benefit of the public even in remote rural areas and were consequently
finding it difficult to regualrly update their knowledge and compete with the
general merit candidates so as to score the required 50% marks in the common
entrance examination and to qualify for admission to any postgraduate course, the
Government decided to enact the Kerala
Medical Officers’ Admission to Postgraduate Courses under Service Quota Act,
2008 (Kerala Act 29 of 2008) to overcome the difficulties faced by
in-service candidates in the matter of getting admission to post-graduate
courses.
Section
3 of the said Act2 (Act No.29 of 2008) provided that selection of
medical officers to the postgraduate courses under the service quota was to be
made by a Selection Committee called the Post Graduate Course Medical Selection
Committee constituted under Section 4 of the said Act. Section 5 of the Act
empowered the Government to set apart seats not exceeding 40% of the total
seats available in the State quota for any academic year for selection of
medical officers under ‘service quota’ for admission to post-graduate medical
courses in medical colleges of the State. Sub-section (2) of Section 5 provided
that the academic qualifications for admission to the postgraduate courses
shall be an MBBS degree with a minimum of 50% marks besides other
qualifications that may be prescribed. Sub-section (4) of Section 5 required
the Postgraduate Selection Committee to finalise the selection list directly
based on the seniority of the in-service medical officers and following such
other criteria as may be prescribed. Section 6 provided for grant of weightage
for ‘rural area service’ or ‘difficult rural area service’ as the case may be,
in the matter of selection of the candidates for admission. Sections 3, 4, 5
and 6 to the extent they are relevant may be re-produced at this stage:
Aggrieved by the
above legislation, Writ Petitions No.1014 of 2009 and 2610 of 2010 were filed
by the respondents challenging the constitutional validity of Section 5(4) of
the Act in so far as it provided that ‘admission
to postgraduate in-service quota shall be only on the basis of seniority’.
Arguments advanced:
The primary ground on which the challenge to the validity of the legislation
was mounted by the writ petitioners was that the State legislature could not
enact a law that would make selection for admission to the post-graduate courses
dependent solely on the seniority of the in-service candidates without
prescribing the minimum conditions of eligibility for the candidates concerned.
Competence of the State Legislature to enact Section 5(4) of the impugned
Legislation was also called in question on the ground that the said piece of
legislation violated the regulations framed by the Medical Council of India the
authority competent to do so under the Medical Council of India Act, 1956. It
was argued that the Post-Graduate Medical Education Regulations, 2000 provided
the minimum requirements that all the candidates have to fulfil. Inasmuch as
the State enactment contrary to the said regulation and requirement postulates
that selection of candidates shall be made only on the basis of seniority it
was beyond the legislative competence of the Kerala State Legislature. The
Indian Medical Council Act and the MCI Regulations framed under the same were,
argued the writ petitioners-respondents herein, referable only to Entry 66 of
List I of Seventh Schedule. Any legislation enacted by the State Legislature in
exercise of its power under Entry 25 in List III was subject to any law to the
contrary passed by the Parliament in exercise of its power under Entry 66 of
List I. That the State Act was reserved for consideration of the President and
that it has received the assent of His Excellency in terms of Article 254(2) of
the Constitution did not save the legislation from the vice of legislative
incompetence.
The State of Kerala contested the petitions and, inter alia, argued that
the State enactment was in pith and substance different from the Indian Medical
Council Act and the MCI Regulations. The State attempted to justify the
legislation under Entry 25 of List III and argued that it does not in any
manner conflict with Entry 66 of List I. It was argued that the dominant
purpose of the legislation under challenge ought to be seen, and that purpose
did not, according to the State, in any way, impinge upon the Central
legislation so as to call for any interference by the Court.
On behalf of the in-service doctors an attempt was made to justify the
enactment on the ground that, but, for a provision permitting a quota for
service aspirants for admission to post-graduate courses it would be difficult
to compete with fresh graduates who may be academically better off than
candidates who have since long given up their studies and devoted themselves
entirely to the service of the people at large some of them inhabiting in
remote and difficult areas of the State.
The Medical Council of India which was arrayed as a respondent in the writ
petitions, however, supported the case of the writ-petitioners to point out
that the MCI Regulations categorically postulate that students for
post-graduate course can be selected only on the basis of their inter se academic
merit. Any other method of selection is, therefore, by necessary implication
forbidden. Inasmuch as the State Legislation has attempted to introduce another
method of selection which has the effect of subverting the MCI Regulations the
impugned enactment was bad.
Judgment of the High Court of Kerala:
The High Court of Kerala by the judgment and order impugned in the appeals
before the Apex Court, agreed in principle that admission to post-graduate
courses can be made only on the basis of inter se seniority provided the
candidates appear in the common entrance examination and qualify. Relying upon
the decisions of this Court in Dr. Preeti Srivastava
& anr. v. State of M.P. & ors. (1999) 7 SCC 120 and State of M.P. &
Ors. v. Gopal D. Tirthani & Ors. (2003) 7 SCC 83, the High Court held
that the prescription of an entrance examination with minimum eligibility marks
to be secured in the entrance test for post-graduate course is within the field
covered by Entry 66 of List I and that the State Legislature cannot, by
reference to Entry 25 of List III, make any law that may have the effect of
encroaching upon the field occupied by Entry 66 of List I. The High Court
observed:
“The
principles of law emanating from the above include that the prescription as to
the requirement of an entrance examination with a minimum eligibility bench
mark to be acquired in that entrance test for post graduate medical education
is within the field covered by Entry 66 in List I and the competence of the
State Legislature to make a law with reference to Entry 25 in List III would
not enable it to make any such law encroaching on the field occupied by Entry
66 in List I. The MCI Regulations framed under Section 33 of the IMC Act is
insulated from any contradiction by any State legislation. Therefore, the State
cannot make a law doing away with the requirement, for in-service candidates,
to participate in the common entrance test for admission to postgraduate
medical courses and obtaining the minimum eligibility requirement prescribed by
the MCI in the Regulations.”
The
High Court then held that inasmuch as Section 5(4) of the impugned enactment
provides for the preparation of a select list of in-service medical officers
based on seniority, such selection shall be made from among in-service medical officers
only who have appeared in the common entrance test of post-graduate medical
education and obtained the minimum eligibility bench mark in that test in terms
of the MCI Regulations. The High Court held:
“The
conclusion is that the provision in Section 5(4) of the State Act that the
select list of in-service medical officers for postgraduate medical education
shall be strictly on the basis of seniority is subject to the requirement that
such selection can be made only from among those in-service medical officers
who have undergone the common entrance test for postgraduate medical education
and have obtained the minimum eligibility bench mark in that test in terms of
the MCI Regulations. It is so declared. These writ petitions are allowed to
that extent.”
The
appeals before the Apex Court assailed the correctness of the above order and
judgment of the Kerala High Court.
Judgment of the Supreme Court:
Referring to Regulation 9 of the Regulations framed under the MCI Act, the Apex
Court said that admissions to post-graduate medical courses have to be made
only on the basis of academic merit of the candidates. The Court said that
Regulation 9 is a complete code by itself inasmuch as it prescribes the basis
for determining the eligibility of the candidates including the method to be
adopted for determining the inter se merit which remains the only basis
for such admissions. To the performance in the entrance test can be added
weightage on account of rural service rendered by the candidates in the manner
and to the extent indicated in the third proviso to Regulation 9.
The
Apex Court said that the impugned legislation when it provides that in-service
candidates seeking admission in the quota reserved for in-service doctors shall
be granted such admission is not on the basis of one of the methodologies
sanctioned by Rule 9(2) of the Rules framed by the Medical Council of India but
on the basis of inter se seniority of such candidates and that the State
was not competent to enact such a law.
Relying
on the dictum laid down in Dr. Preeti Srivastava (supra), the Bench comprising
of Justice T S Thakur and Justice R. Banumathi said that the Apex Court had held that
MCI had framed regulations in exercise of the power conferred under Section 20
read with Section 33 of the Medical Council of India Act which covered
post-graduate medical education. “These regulations are binding and the States
cannot, in exercise of their power under Entry 25 of List III, make any rule
which are in conflict with or adversely impinge upon the regulations made by
the MCI. Since the standards laid down are in exercise of power conferred under
Entry 66 of List I, the exercise of that power is exclusively within the domain
of the union government. The State’s power to frame rules pertaining to
education was in any case subject to any provision made in that connection by
the union government.”
Referring
to the decision of the Apex Court in Gopal D. Tirthani case
(supra), the Bench said there can be no relaxation for in-service candidates in
so far as the common entrance test is concerned and MCI regulation could not be
relaxed for that purpose. The argument that in-service candidates are detached
from theoretical study and cannot, therefore, compete with other candidates was
rejected by this Court.
The Apex Court said
that in the light of the above pronouncements it would be futile to argue that
the impugned legislation can hold the field even when it is in clear breach of
the Medical Council of India’s Regulations. The Court thus held that the High
Court was right in holding that inasmuch as the provisions of Section 5(4) of
the impugned enactment provides a basis for selection of candidates different
from the one stipulated by the MCI Regulations it was beyond the legislative
competence of the State Legislature.
However
the Bench did not agree with the reconciliatory approach adopted by the High
Court when it directed that seniority of the in-service candidates will
continue to play a role provided the candidates concerned have appeared in the
common entrance test and secured the minimum percentage of marks stipulated by
the Regulations. The High Court was, according to the Apex Court, not correct
in making that declaration, because, even when in Gopal D. Tirthani’s case
(supra) the Apex Court had allowed in-service candidates to be treated as a
separate channel for admission to post-graduate course, within that category
also, admission can be granted only on the basis of merit.
The
Supreme Court finally held “A meritorious in-service candidate cannot be denied
admission only because he has an eligible senior above him though lower in
merit. It is now fairly well settled that merit and merit alone can be the
basis of admission among candidates belonging to any given category. In service
candidates belong to one category. Their inter-se merit cannot be
overlooked only to promote seniority which has no place in the scheme of MCI
Regulations. That does not mean that merit based admissions to in-service
candidates cannot take into account the service rendered by such candidates in
rural areas. Weightage for such service is permissible while determining the
merit of the candidates in terms of the third proviso to Regulation 9 (supra). Suffice
it to say that Regulation 9 remains as the only effective and permissible basis
for granting admission to in-service candidates provisions of Section 5(4) of
the impugned enactment notwithstanding. That being so, admissions can and ought
to be made only on the basis of inter se merit of the candidates
determined in terms of the said principle which gives no weightage to seniority
simplicitor.”
Accordingly the Apex
Court, having found the appeals bereft of merit, dismissed the same without any
order as to costs.
___________
1. Civil Appeals No. 297-298 of
2015 (Arising out of S.L.P. (C) Nos.13121-13122 of 2011) Sudhir N.
& Ors. V. State of Kerala & Ors.-decided on 12.01.2015
2. Sections 3 to 6 of the Kerala Medical Officers’
Admission to Postgraduate Courses under Service
Quota Act, 2008 :
“3.
Selection of Medical Officers for admission to Postgraduate Course Under the
Service. Quota.-
Notwithstanding
anything contained in the Indian Medical Council Act, 1956 (Central Act 102 of
1956) or any rule or regulation issued thereunder or in any judgment, decree or
order of any court or authority, the selection of Medical Officers for
admission to Postgraduate Course of study in the State under the service quota
shall be made only under the provisions of this Act.
(1)
The Government may constitute a Postgraduate Course Selection Committee for the
purpose of selection of Medical Officers under the service quota with the
following ex-officio members, namely:-
(a)
The Secretary to Government, Health and Family Welfare Department, Government
of Kerala;
(b)
The Director of Medical Education;
(c)
The Director Health Services;
(d)
The Director of Insurance Medical Services;
(e)
The Joint Director of Medical Education (M);
(f)
The Joint Director of Medical Education (G).
(2)
The Secretary to Government, Health and Family Welfare Department shall be the
Chairman and the Director of Medical Education shall be the Convenor of the
Committee.
(3)
The Committee shall discharge its functions in such manner as may be
prescribed.
(1)
The Government may set apart seats not exceeding forty percent of the total
seats available to state quota in an academic year, for selection of Medical
Officers under service quota considering their service under the Government for
admission to Post Graduate Medical Courses in the Medical Colleges of the State
in such manner as may be prescribed.
(2)
The academic qualification for admission to the Post Graduate Course shall be
M.B.B.S. degree with minimum fifty percent marks and the other qualifications
shall be such as may be prescribed.
(3)
The details of eligibility for admission, the duration of courses, allotment,
fee to be paid, reservations of seats and such other details shall be published
every year in the prospectus before the commencement of admission.
(4)
The Postgraduate Course Selection Committee shall finalise the selection list
strictly based on the seniority in service of the Medical Officers and
following such other criteria as may be prescribed.
(5)
The selection list finalised under subsection (4) shall be published by the
Post Graduate Selection Committee for the information of the applicants.
Every
Medical Officer who has ‘rural area service’ or ‘difficult rural area service’
as the case may be, in the State shall be given weightage in selection in such
manner as may be prescribed.”
