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81 paragraphs · 6,347 wordsR.M. Borde, J.—Heard.
Rule. Rule made returnable forthwith. With the consent of the parties, petition is taken up for final disposal at admission stage.
Petitioner is praying for issuance of writ of mandamus or any other writ, direction or order in the nature of writ of mandamus directing respondents to permit the petitioner to appear for interview/counselling scheduled on 6-6-2013 and issue further direction to admit petitioner in accordance with the merit list of NEET-PG-2013 examination, in accordance with law. By virtue of amendment to the petition, petitioner is praying for declaration that clause 1.5 of Government Resolution dated 3rd May, 2011 is discriminating and contrary to the Postgraduate Medical Education Regulation, 2000, framed by Medical Council of India and is violative of Article 14 of the Constitution of India and therefore, shall be struck down. Petitioner is also seeking declaration that he is eligible to claim admission to Postgraduate course as an in-service candidate.
Petitioner is serving as Medical Officer with the State of Maharashtra and is holding M.B.B.S. degree. Petitioner tendered application seeking permission to appear for Postgraduate Entrance Examination conducted by National Board of Examination and he is accorded permission to appear for examination by the State. NEETPG is the eligibility cum ranking examination prescribed as the single entrance examination to various MD/MS and PG Diploma courses under the ambit of Post Graduate Medical Regulations notified by Medical Council of India with approval of the Ministry of Health and Family Welfare. A candidate desirous of securing admission to Post Graduate degree/diploma course shall have to qualify in NEET-PG examination. Information bulletin for National Eligibility Cum Entrance Test (PG) for admission to MD/MS PG Diploma Course 2013 is placed on record. In the chapter titled ''Introduction'', Post Graduate Medical Education Regulations (PGMER) issued by Medical Council of India with prior approval of Government of India has been quoted which prescribes thus :
I. There shall be a single eligibility cum entrance examination namely ''National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses'' in each academic year.
II. 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%.
Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seats for General Category candidates.
Provided further that this entire exercise shall be completed by each medical college/institution as per the statutory time schedule for admissions.
III. In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in ''National Eligibility-cum-Entrance Test for Postgraduate courses'' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates as provided in clause 9(II) with locomotory disability of lower limbs, the minimum k arks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list in ''National Eligibility-cum-Entrance Test'' for Postgraduate courses:
Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.
IV. The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of marks obtained in National Eligibility-Cum-Entrance Test and candidates shall be admitted to Post Graduate courses from the said merit lists only. Provided 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 upto the maximum of 30% of the marks obtained in National Eligibility-Cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent authority from time to time.
V. No candidate who has failed to obtain the minimum eligibility marks as prescribed in regulations, shall be admitted to any Postgraduate courses in he said academic year.
VI. In non-Governmental medical colleges/institutions, 50% (Fifty Percent) of the total seats shall be filed by State Government or the Authority appointed by them, and the remaining 50% (Fifty Percent) of the seats shall be filled by the concerned medical colleges/ institutions on the basis of the merit list prepared as per the marks obtained in National Eligibility-Cum-Entrance Test. VII. 50% of seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government / Competent authority from time to time.
VIII. The Universities and other authorities concerned shall organize admission process in such a way that teaching in postgraduate courses starts by 2nd May and by 1st August for super speciality courses each year.
IX. There shall be no admission of students in respect of any academic sessions beyond 31st May for postgraduate courses and 30th September for super speciality courses under any circumstances. The Universities shall not register any student admitted beyond the said date.
X. The Medical Council of India may direct, that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study, or any medical qualification granted to such a student shall not be a recognised qualification for the purpose of the Indian Medical Council At, 1956. The institution which grants admission to any student after the last date specified for the same shall also be liable to face such action as may be prescribed by MCI including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year.
Chapter 2 is titled as ''General Instructions, Terms and Conditions''. Clause 2.2 reads thus :
2.2 Applicant may kindly note that appearance in NEET-PG does not confer any automatic rights to score a Post graduate MD/MS/Post Diploma seat. The selection and admission to Postgraduate seats in any medical courses as per Indian Medical Council Act, 1956 is subject to fulfilling the admission criteria, eligibility, medical fitness and such criteria as may be prescribed by the respective universities, medical institutions, Medical Council of India, State/Central Government.
Clause 2.10 records that Candidates'' eligibility is purely provisional and is subject to full-fillment of eligibility criteria as prescribed by the NBE/MCI/University/Medical College or Institute.
Chapter 3 of the brochure is titled as ''Eligibility Criteria For NEET-PG-2013''. Clause 3.4 and 3.5 read thus :
3.4 Registration and/or appearance in NEET-PG does not confer any automatic rights upon the candidate for admission at medical institute / college or MD/MS or PG Diploma porgramme.
3.5 Eligibility for pursuing MD/MS/PG Diploma shall be as per the rules, regulations and guidelines of respective universities/medical institutions.
Annexure A-1 of the brochure is notification issued by Medical Council of India on 21st December, 2010. The Central Government has directed amendment to the Postgraduate Medical Education Regulations, 2000. Clause 9 under the heading ''Selection of Postgraduate Students'' shall be substituted as under :-
"9. Procedure for selection of candidate for Postgraduate courses shall be as follows :
7 There shall be a single eligibility cum entrance examination namely ''National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses in each academic year.
8 3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability of lower limbs between 50% to 70%.
Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled set in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seats for General Category candidates. Provided further that this entire exercise shall be completed by each medical college / institution as per the statutory time schedule for admissions.
9 In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of 50% (Fifty Percent) marks in ''National Eligibility-cum-Entrance Test for Postgraduate courses'' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum percentage marks shall be 40% (Forty Percent) and in respect of candidates as provided in clause 9(II) above with locomotory disability of lower limbs, the minimum percentage marks shall be 45% (Forty Five Percent) in the National Eligibility-cum-Entrance Test: Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.
10 The reservation of seats in medical colleges / institutions for respective categories shall be as per applicable laws prevailing in States / Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Post Graduate courses from the said merit lists only.
11 No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub Clause (II) above shall be admitted to any Postgraduate courses in the said academic year.
12 In non-Governmental medical colleges/ institutions, 50% (Fifty Percent) of the total seats shall be filled by State Government or the Authority appointed by them, and the remaining 50% (Fifty Percent) of the seats shall be filed by the concerned medical colleges / institutions on the basis of the merit list prepared as per the marks obtained in National Eligibility-cum-Entrance Test.
Central Government has further directed amendment to the Postgraduate Medical Education Regulations, 2000 and, notification in that regard has been issued on 15th February, 2012. By virtue of amendment Clause 9 sub-clause III under the heading ''Selection of Postgraduate Students'' as amended vide notification dated 21st December, 2010, is substituted as under :
"In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in ''National Eligibility-cum-Entrance Test for Postgraduate courses'' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates as provided in clause 9(II) above with locomotory disability of lower limbs, the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All India common merit list in ''National Eligibility-Cum-Entrance Test'' for Postgraduate courses:
Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only."
Clause 9 under the heading "Selection of Postgraduate Students'' as amended vide notification No. MCI.18(1)/2010-Med/49070 dated 21st December 2010, following shall be added after sub-clause IV which is as under :
"Provided that in determining the merit of candidates who are in service of Government / Public authority, weight age 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 remove and / or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-Cum-Entrance Test, the remote and difficult areas shall be as defined by State Government / Competent authority from time to time."
Clause 9 under the heading "Selection of Postgraduate Students'' as amended vide notification No. MCI 18(1)/2010-Med/49070 dated 21st December 2010, following shall be added after sub-clause VI which is as under :
"VII 50% of seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government / Competent authority from time to time.
Petitioner as an in-service candidate has appeared for NEETPG-2013 examination. Petitioner has secured total 791.0456 marks and, according to him, he is qualified to secure admission to medical course. Petitioner by virtue of interim order passed by this Court has been provisionally admitted to Postgraduate Degree Course in MD Gynecology as against NT ''C'' category. Petitioner has been held disqualified for admission to Postgraduate Diploma Course of 2013 since departmental enquiry is pending against him. The State of Maharashtra has framed regulations in respect of selection of in-service Medical Officer for pursuing Postgraduate studies. Regulations have been published in Government Gazette dated 3rd May, 2011. Clause 1.5 of the regulations framed by the State Government prohibits Medical Officer from securing admission to Postgraduate course against whom enquiry is in progress or who is involved in a criminal offence. Thus, candidate against whom departmental enquiry is in progress is disqualified to appear for Common Entrance Examination. Petitioner contends that since he has been permitted to appear for examination and that he has secured qualifying marks, regulation 1.5 does not come in way of petitioner for securing admission to Postgraduate course. Petitioner contends that the regulations framed by Medical Council of India shall have primacy and once the field of admission to Postgraduate medical course is occupied by the regulations framed by Medical Council of India i.e. regulations framed by the Central Government, restriction imposed by the regulations issued by the State Government shall not apply. In nutshell, it is the contention of petitioner that if the field is occupied by regulations framed by the Central Government, those will have primacy and any restriction in the regulations framed by the State Government would not be applicable. Petitioner contends that regulations framed by the Central Government i.e. Postgraduate Medical Education Regulations, 2000, amended from time to time, do not lay down any prohibition to secure admission to Postgraduate degree or diploma course in case of a in-service candidate against whom departmental enquiry is in progress and as such, regulations framed by the State Government should not be construed as an impediment.
Learned counsel for petitioner, placing reliance on judgment in the matter of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others reported in 2006 AIR SCW 2048 contends that so far as co-ordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Sch. VII to the Constitution and State has no power to encroach upon the legislative power of Parliament. It is only when the list is covered by Entry 25 of List III of Sch. VII to the Constitution that there is a concurrent power of Parliament as well as State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution. It is thus contended that subject higher education is enlisted in Entry 66 of List-I which deals with laying down standard in institutions for higher education or research and scientific and technical institutions as also co-ordination of such standards. It is thus contended that after inclusion of subject in concurrent list the Union can legislate on admission criteria also and if it does so, the State will not be able to legislate in the field except as provided under Article 254. It is the contention of petitioner that rules framed by the State Government prescribing criteria including eligibility conditions for admission of in-service candidate to Postgraduate course shall not be operative since the field is covered by Central Legislation i.e. Rules of 2000.
Reliance is also placed on judgment in the matter of State of Madhya Pradesh v. Gopal D. Tirthani reported in 2003(5) Supreme Court 473. In the State of Madhya Pradesh there were two separate sets of rules for admission to Postgraduate medical and dental course. Madhya Pradesh Medical and Dental Postgraduate Entrance Examination Rules prescribe procedure for admission to Postgraduate degree/diploma course in Medical and Dental Colleges in the State of Madhya Pradesh whereas another set of rules namely Madhya Pradesh Medical and Dental Postgraduate Admission (in service) Rules, 2002, provide for admission to in-service candidates. There occurred some disparity between the two sets of rules. In-service rules do not provide for common entrance examination whereas such entrance examination was provided in respect of students desirous of securing admission to degree/diploma courses. The points framed for consideration are to be found in paragraph no. 18 of the judgment which read thus :
It would be useful to crystallise as issues the questions of law which arise for decision in these appeals an around which the learned counsel for the parties have made their submissions. They are :-
1) Whether it is permissible to hold and conduct separate entrance examination for in service and open category candidates, or should there be only one common entrance test ?
2) Whether it is permissible to compartmentalise the evaluation of performance of in-service candidates by assigning 40 marks for entrance test, 30 marks for integrated performance at the first, second and third MBBS examination and 30 marks based on length of service in the rural / tribal areas ?
3) Whether weight age can be given for the length of service in the rural/tribal areas, and if so, in what manner ? and
4) Whether women candidates who have served for three consecutive years in rural areas constitute a class by themselves so as to deserve special treatment ? Nature of 20% seats allocated for in-service candidates reservation or channel of entry ?
Directions issued by the Supreme Court in paragraph no. 41 of the judgment read thus :
The appeals are partly allowed and disposed of in terms of the following directions :-
(1) The judgment of the High Court, to the extent to which conferral of benefit by grant of weightage to in-service candidates (i.e. doctors in the employment of State Government) on the basis of their service rendered in rural/tribal areas and also to the extent to which the reduced eligibility qualification for women candidates from out of in-service candidates have been annulled, is set aside.
(2) The State Government shall frame fresh rules governing PG. entrance examination and P.G. (in-service) admissions consistent with the law laid down herein above. The rules shall as far as possible be one set of rules framed by Medical Education department and Public Health and Family Welfare department in consultation with each other. If it is not possible to frame one set of rules then the two departments may frame separate rules but care has to be taken to avoid any scope for confusion or inconsistency.
(3) The eligibility for sponsorship of the 36 successful in-service candidates in the Pre-PG Entrance Examination 2003 shall be scrutinized and decide ex post facto. A fresh entrance examination for the remaining seats meant for in-service candidates shall be held at the earliest and, in any case, within a period of one month from today. Such of the candidates who participated in the Pre-PG Entrance Examination of the year 2002 and whose results have not been declared consequent upon the judgment of the High Court, would be allowed an opportunity of taking this examination relaxing the upper age limit, if required. The candidates who are otherwise eligible for taking the PG Entrance Test, 2003, shall also be allowed to participate. Such number of candidates shall be declared passed as is equivalent to number of seats meant and available for in-service candidates adjusting the number of candidates already declared successful, i.e. 36, subject to satisfying sponsorship criteria.
(4) A consolidated merit list of successful in-service candidates shall be prepared . Such list shall include (i) the 36 candidates who have already been declared successful and have also satisfied the sponsorship criteria, and (ii) the candidates declared successful at the PG Entrance Test which will n ow be held for the remaining seats pursuant to this judgment. The consolidated list having been prepared, the order of merit shall be fixed by assigning weight age for rural service consistently with the prevalent rules and allowed participation in counselling to the extent of available seats.
(5) Counselling for in-service candidates shall be held as per the consolidated merit list of successful in-service candidates prepared in terms of the above said directions. Counselling, if any already held for 36 in-service candidates shall be ignored and not given effect to.
(6) If the required number of in-service eligible candidates do not qualify at the Pre-PG Examination now held, the seats so left vacant shall be diverted and made available for the open category candidates.
No order as to the costs.
Reliance is also placed on a judgment in the matter of Thrumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of T.N. and others reported in AIR 1996 Supreme Court 2384. The Supreme Court while interpreting provisions of section 10A of the Medical Council Act, has observed that the Parliament has made a complete and exhaustive provision covering the entire field for establishing of new medical colleges in the country and no further scope is left for the operation of the State legislation in the said field which is fully covered by the law made by Parliament. As a consequence, it must be said that the proviso to sub-section (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college are repugnant to Section 10A inserted in the Medical Council Act, the Central Act, which prescribes the conditions for establishing a new medical college in the country.
Reliance is also placed on a judgment in the matter of Preeti Srivastava v. State of Madhya Pradesh reported in 1999 AIR (SC) 2894. Relying upon the aforesaid judgment it is contended that the State is not competent to prescribe criteria which adversely affects the standard of the education. The State Government cannot make such rules and, therefore, regulations framed by Medical Council, in exercise of power under the constitutional provisions would be binding on the parties. According to petitioner, merit based criteria prescribed by Medical Council of India shall have to be adhered and any relaxation in respect of such condition will not be permissible.
Reliance is also placed on judgment in the matter of Harish Verma v. Ajay Srivastava reported in 2003 AIR SC 3371 wherein it is observed that there can be only one Common Entrance Test for determining eligibility for Post Graduation for in service candidates. Requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India regulations framed in this behalf.
Learned counsel for petitioner also places reliance on a judgment in the matter of State of Tamil Nadu v. Adhiyaman Educational And Research Institute reported in 1995(4) SCC 104 wherein it has been laid down that in the case of conflict between Central Act and the University Act, the Central Act will prevail and to that extent the provisions of University Act will be deemed to have become unenforceable. It is also contended by petitioner that regulations framed by the State Government are not in exercise of powers conferred in any Statute but those are merely executive instructions and as such are unenforceable since the filed is occupied by the Central Legislation.
Learned counsel for intervener has invited our attention to a judgment in the matter of Ajay Kumar Singh and others v. State of Bihar and others reported in (1994) 4 Supreme Court Cases 401. In paragraph no. 18 of the judgment it has been observed by the Supreme Court that none of the sections of Indian Medical Council Act, empower the council to regulate or prescribe qualifications or conditions for admission to such course of study. No other provision in the Act does. It is thus clear that the Act does not purport to deal with, regulate or provide for admission to graduate or postgraduate medical courses. Indeed, insofar as postgraduate courses are concerned, the power of the Indian Medical Council to "prescribe the minimum standards of medical education" is only advisory in nature and not of a binding character. In such a situation, it would be rather curious to say that the Regulations made under the Act are binding upon them. The Regulations made under the Act cannot also provide for or regulate admission to postgraduate courses in any event. It is recorded in paragraph no. 26 of the judgment that even if one relates the Indian Medical Council Act to Entry 25 of List III in addition to Entry 66 of List I, even then the position is no different - for the Indian Medical Act does not purport to regulate the admissions or admission policy to postgraduate medical courses. The field is thus left free to be regulated by the State. The State can made a law or an executive rules, in this case it has chosen to make an executive rule. It has also been pointed out that the decision rendered in Ajay Kumar''s case cited supra has been over-ruled by the Supreme Court in Priti Srivastava''s case to certain extent. In paragraph no. 35 and 36 of the judgment it is observed thus :
The legislative competence of the Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the States an exclusive power to legislate on "Education including universities subject to the provisions of Entries 63, 64, 65 and 66 of List - I and Entry 25 of List III." Entry 11 of List - II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows :-
"Entry 25, List III : Education including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I : Vocational and technical training of labour".
Entry 25 is subject, inter alia, to Entry 66 of List - I. Entry 66 of List - I is as follows :
"Entry 66 List I : Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also co-ordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
It would be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List - I. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are :
(1) The calibre of the teaching staff;
(2) A proper syllabus designed to achieve a high level of education in the given span of time; (3) The student-teacher ratio:
(4) The ratio between the students and the hospital beds available to each student;
(5) The calibre of the students admitted to the institution;
(6) Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;
(7) Adequate accommodation for the college and the attached hospital; and
(8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.
It is thus clear on reading judgment in Preeti Srivastava''s case that both the Union as well as State have power to legislate on the subject education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also co-ordination of such standards. It would be perfectly justifiable for the State to control education including medical education so long as the field is not occupied by any Union Legislation. It would also be open for the State Government to lay down norms while controlling education in the State but those shall not be of such a nature which would lower down the criteria for admission to the institution for higher education including higher medical education. It would not be permissible for the State to adversely affect standards laid down by Union of India in Entry no. 66 of List I. The Supreme Court has also categorically laid down that there can be rules for admission which are consistent with and do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. It would be open for the State to lay down additional qualification than those prescribed in Entry 66 of List I but, those would be consistent with promoting higher standards for admission to the higher educational courses.
In view of judgment of the Supreme Court (cited supra) the preposition advanced by learned counsel for petitioner that it would not be open for the State to lay down eligibility criteria in respect of admission to Postgraduate medical education for in-service candidate since the filed is occupied by regulation framed by the Central Government, is not acceptable. Petitioner as well as similarly placed candidates desirous of securing admission to Postgraduate medical course as in-service candidates are regulated by service conditions laid down by the State. They being in employment of the State Government, get an opportunity to pursue higher studies. There are certain conditions laid down in the Government Policy in respect of medical officers who are in employment with the State Government such as : completion of three years satisfactory service, prescription of age, higher age of 45 years, which conditions are quite reasonable. The State also expects that Medical Officers desirous of securing admission to Postgraduate studies shall not be involved in any criminal offence nor departmental enquiry shall be pending against them. Rules framed by the State Government are in addition to the rules and do not lay down any criteria which is repugnant or contrary to the conditions laid down by the Central Government. In case of candidates belonging to backward community the State Government insists for production of validation certificate from the Scrutiny Committee. It is the State Government which is required to incur expenses for securing higher qualification by their employees. It would be perfectly justifiable for the State Government to lay down certain conditions which are consistent with the regulations framed by the Medical Council of India. Regulations also lay down condition that on completion of Postgraduate studies the employee shall have to continue in employment at least for a period of five years from the date of acquisition of Postgraduate qualification and, for compliance of such undertaking, the employees are required to furnish bond of Rs. 50,00,000/-.
In this view of the matter, we are of the opinion that the conditions laid down in the Government policy are consistent and not in conflict with the regulations framed by the Central Government. It would be permissible for the State Government to lay down additional conditions more so in respect of in-service candidates. Argument advanced by learned counsel for petitioner for impeaching clause 1.5 of Government Resolution dated 3rd May, 2011 is devoid of substance.
Reference would also be appropriate to the recent judgment of the Supreme Court in the matter of Christian Medical College Vellore and others v. Union of India and others reported in 2013(9) Scale 226, wherein the Supreme Court has declared that the Act of 1956 nor the MCI Regulations confirm authority in the council to conduct examination or to direct that all the admissions into different medical colleges and institutions in India would have to be on the basis of one common National Eligibility-cum-Entrance Test, thereby effectively taking away the right of the different medical colleges and institutions, including those run by religious and linguistic minorities, to make admissions on the basis of their own rules and procedure. In paragraph no. 146 of the judgment it is observed thus :
Nowhere in the 1956 Act nor in the MCI Regulations, has the Council been vested with any authority to either conduct examinations or to direct that all admissions into different medical colleges and institutions in India would have to be on the basis of one common National Eligibility-cum-Entrance Test, thereby effectively taking away the right of the different colleges and institutions, including those run by religious and linguistic minorities, to make admissions on the basis of their own rules and procedures. Although Mr. Gupta has contended that section 33(1) of the 1956 Act entitles the MCI to make regulations regarding the conduct of professional examinations, the same, in our view, does not empower the MCI to actually hold the entrance examination, as has been purported to be done by the holding of the NEET. The power to frame regulations for the conduct of professional examinations is a far cry from actually holding the examinations and the two cannot be equated, as suggested by Mr. Gupta.
For the reasons set out above, it is to be concluded that petitioner against whom departmental enquiry is pending is not eligible in view of clause 1.5 of the Government Resolution dated 3rd May, 2011, to secure admission to Postgraduate medical degree/diploma course. Regulations framed by the State Government, although in the nature of executive instructions, do not lay down any eligibility criteria contrary to the one laid down by the Indian Medical Council Act and Postgraduate Medical Education Regulations, 2000. Executive instructions are permissible and do fulfil the requirements laid down in Preeti Srivastava''s case. In this view of the matter, no interference is called for in the petition. Petition is devoid of substance hence stands rejected. Rule discharged. No costs.
Pending civil application, if any, does not survive and stands disposed of.
Learned counsel for petitioner seeks continuation of interim relief. By way of interim relief, the claim of petitioner was directed to be considered. Since the admission process to Postgraduate Degree / Diploma course is time bound, the seat occupied by the petitioner deserves to be allotted to next eligible candidate, and as such the request made by petitioner cannot be considered and stands rejected.