A.M.

SHAFFIQUE,
J
{<****rf**rkrk***
W.P.C.Nos.5B1B
of Z0I4,5B5B
of 2014,
5928 of 20L4,0409
of 20L4,6146
of 20L4,
7300 of 2014,1G15
of 2014 &7735 of 20l4
Dated this the 6th day of
Ju
ne 20L4
IUDGMENT
All the:se writ petitions
are filed by Doctors who are in
the service of Government
in various departments.
They
clralllenge
the prospectus
for admission to Medical
post
GrarJuate Degree/Diploma
course, 2or4 issued
by the
Director
of Medical
Education to the extent it makes
pror,rision
for reducing
the quarifying
criteria for service
quolla
candidates in the All India
post
Graduate
Medical
Entrance Examinati
on 2014
(for
slrort
'AIPGMEE
z0L4'). The
impr"rgned
clause, which is under challenge, reads as under:
"4-4.7
ln order to have the optimum
utilization of service
euota
seafs and to tide over
the detarth of specialists in Heatth services
Departtnent,
the qualifying
criteria for service
Quota candidates in A\7GM,EE 20J4 is fixed as
follows:
W,P.Cl.Nos.5858/:]0
1 4 & conn.cases
Sl.No.
7 G;eneral
caiigoii
Passing criteria
45 Percentage
2
isc/sr/sEBC
3
,PD
35 Percentage
t40 percentage
2. Tl^re facts involved in the writ petition
would
disclose that pursuant
to the directions issued
by the
supreme court in christian Medical college, velloor v.
Union of India and Others
t2014(2) SCC 3051 by which
notil=ication
described as
postgraduate
Medical Education
(Amendment)
Regulations,2010 (hereinafter
referred as
'2010
Regulations')
to effect amendment to
postgraduate
Medical Edur:ation Regulations, 2000
(hereinafter
referred as
'2000
Regulations'),
by the Medicat Council of India (for
short
'MCl')
directing National Eligibility common Entrance Test
(for
short'NEET') to be conducterc on an all India basis for
Postrgraduate (PG)
admissions, ialong with certain other
notifications relating to MBBS, BDS and MDS courses were
declared to lbe ultra vires the Constitution.
paragraphs
177
and 178 of C.M.C Velloor (supra)
reads as under:
W.P.Cl.Nos.5
85 8/:20 1 4 & conn.cases
"l-77.
l, the right
of our aforesaid
discussions
and
the vier4/s
expressed
in the various
decisions
cited,
we have
no hesitation
in hording
that
the
Regulations
on
Graduate
Medicar
Education
(Amendment),
2010 (part
tt) and the
postgraduate
Medical
Education (Amendment)
Regulation,
2010
(Part
ll), whereby
the Medicar
councir
of India
introduced
the
singte
Nationat
Etigibirity-cum-
Entrance
rest
and the corresponding
amendments
'in
the Dentists
Act, Jg4B,
are urtra vires
the
provisions
of Articles
Jg(J)(g),
25, 26(a),
2g(J)
and
-30(1) of the constitution,
since they have the effect
of denuding
the stafes,
state-run
universities
and
itll medi<:al
colleges
and institutions,
inctuding
those
enjoying
the protection
of the above provisions,
l'=rom
admitting
students
to their MBBS,
BDS
and
gtostgrad'uate
courses,
according
to their
own
procedures,
beriefs
and dispensations,
which
has
tteen
fou,nd
by this court in T.M.A.
pai
Foundation
c'ase, to be an integrat
facet
of the right
to
administer.
ln our view, the role attributed
to and
the powers
conferred
on MCt and DCt under the
provisions
of the tndian
Medical
council Act, 1g56,
and the Dentists
Act, Jg4g, do not contemptate
'MP.
Cl.Nos. 5 8 58 f.7,0 1 4 & conn. cases
anything
different
and are restricted
to taying
down
standards
which
are uniformly
appticable
to alt
medical'
colleges
and institutions
in India to ensure
the excellence
of medicat
education in tndia.
The
role ass:igned to MCt under sections l0-A and rg-A
(7)
of the Jg56 Act vindicates
such a conclusion.
778. As an offshoot
of the above, we also have no
hesitati<tn
in holding that the Medical
councit of
lndia is not empowered
under the Jg56 Act to
actual ly cond uct N EET.,,
3. In the light
of the above scenario,
central
Government
entrusted
National Board of Examinations (for
short
'NBE')
to conduct the test for admission
to
post
ciraduate
Medical
courses for the year
2014
and the
instructions
issued is in terms of a bulletin, The state
ciovernment
also adopted the said examination
by
cioverrnment
order dated 01/1rl2or3 declaring
that
admissions to Medical Post Graduate Courses in the State for
2014 will be on the basis of the examination conducted by
NBE. lt was also indicated that
pG
Medical/Dental
aspirant
candidates from the state sha ll pa rticipate in the
'W.P.Cl.Nos.5 85 8/:20 1 4 & conn.cases
examinationr
and obtain minimum
eligibility
marks as
prescribed
for getting
admission to
pG
Medical/Dental
courses. Thre commissioner
of Entrance Examinations
also
issur:d notification
on 05/1L120r3 in that regard, wherein
canclidates
,il/ere
called upon to obtain minimum
eligibility
rnarl{<s as
"prescribed".
After conducting the requisite test,
NBE published
results on 0rl02l2or4. The prospectus
for the
y/ear
20T4 vvas approved
as per
Government
order dated
L8102120l-4.
4. clause 4-4 of the prospectus
refers to qualifying
criteria which indicates that alr candidates have to qualify
the AIPMGEE 2014 for admission. To be eligible for
admission in any PG course in 2014, it shall be necessary for
the candidal[e to obtain 50o/o and above. Therefore, the
F,assing
criteria for general
category was prescribed
as 50o/o,
frrr sc/ST/sElBC as 40% and
physicaily
Disabred (poy
at 45%.
The contention of the petitioners
is that when 50% is the
eligibility marks prescribed
for passing
examination for
'W.P.Cl.Nos.
5 85 8/:20 I 4 & conn.cases
gflreral
category,
a reduction in the qualifying
criteria is
macle with reference
to in service candidates in terms
clause 4-4.r. Their passing
criteria for general
category
tr\o/c,,
for sc/sr/sEBC it is 35% and for
pD
it is 40%.
5. Ac,cord ing to the petitioners,
red ucing the
qualifying
crriteria from s0% to 45% in respect
of service
ctruota candidates have affected their avenues for admission
of
is
in s() far as the admissions
are based on seniority of the
canclidates
depending
upon
senior to them will enter the
crbtained 50% marks will
admission.
their service,
field and those
not get
an opportunity for
6. Petitioners
have raised the following contentions in
order to challenge the aforesaid clause in the prospectus.
i) Th,e Bulletin published
by NBE clearly prescribes
ttre eligibility marks in the qualifying
examination
as 50%,
c,entral Government has approved the same and therefore
State Government has no power
to issue prospectus
diluting
as more persons
persons
who had
'W.P.Cl.No:;. 5 85 8/:10 I 4 & conn.cases
the eligibility
criteria and reducing the qualifying
marks in
the entrance examination.
ii) When
2010 Regulations
is
uncclnstitutional
by the supreme court, the earlier
revives, which inter alia prescribes
50% marks
entrance examination.
declared
position
for the
iii) state Government
has no power
to legislate
on the
subj{ect having effect of lowering any standards prescribed
by MCI ernd the said clause in the prospectus
is unreasonable.
iv) Though the state Government has enacted the
Kerala Medical officers' Admission to
post
Graduate courses
undelr service
Quota
Act, 2008
(hereinafter
referred to as the
'Serrrice
Quota
Act') in so far as no rules have been framed in
terms with the procedure prescribed
under sub sections
(1)
and
(2)
of section 5 of the Act, it is not open for the
ciovelrnrnent to incorporate
an eligibility criteria less than
what is prescribed
for members of general
category.
W.P.C.Nos.5858/20
I 4 & conn.cases
v) ln the
absence
of any such rures governing
the fierd,
the
state
l^ras no
executive power
to incorporate
such
a
proltision
in the prospectus
as such
a power
is not available
t.o the
state
Government
under
Articre
L6z
of the
conr;titution
of India
especiaily
in the right of the
statutory
plrovision
under
Section
25(vi)
of the Kerala
University
of
Health
sciences
Act, 2010 (hereinafter
referred
as
,the
KUHS
Act') .
7.
Counter
affidavit
is
supporting
the stand
taken
contended
that Section
5(3)
filed by the State
Government
by them.
lt is inter
alia
of the Act clearly permits
the
Governrnent
to provide
details for eligibility
to admission,
duration
of course,
altotment,
fee to be paid,
reservation
of
seats;
etc. in the prospectus
before
commencement
of
admission.
In the absence
of a central legislation
coming
under Entry i6 of List lof the 7'h Schedule to the Constitution
of India,
the state
Government
has the legislative
competernce
to enact the service
euota
Act and when the
'W.P.C.Nor;.5 85 8/:10 1 4 & conn.cases
stat,ute clearly
prescribes
the authority of the Government to
pres;cribe
an eligibility criteria for candidates in Government
serv'ice, the prospectus
has been issued well within the
powers
of the Government.
B, lt is further contended that the 2000 Regulations
was arnended by virtue of 2010 Regulations and the MCI
intr<lduced NEET wherein eligibility criteria was fixed for
diffelrent categories of candidates, The amendment was
effected by substituting Clause 9. lt again underwent
amendment by introduction of 2012 Regulations, The
Supreme Court formed an opinion that the power
conferred
on lvlcl under the provisions
of the Indian Medical Council
Act, 1956 clo not contemplate anything different and are
restricted trl laying down standards which are uniformly
appllicable trc all Medical Colleges and institutions in lndia to
ensure the excellence of medical education in India. lt was
therefore held that MCI cannot conduct NEET. lt is
contended that the notification making certain relaxation in
'il/.P.Cl.No:r.5
858/t10 14 & conn.cases l0
the eligibility criteria of the service candidates were issued
taking into account the acute dearth of qualified
service
quota
candidates for admission to Post Graduate Medical
Senricer. Therefore a policy decision had to be taken to
incorrpofate Clause 4-4.1 in the prospectus for service quota
canrjidiates illone.
9. Learned senior counsel Sri. Kurian George
Kannanthanam appearing for the petitioners, first contended
that the State Government has no authority to issue the
Impugned clause in the prospectus as the power
to frame
law with rel=erence to admission to
post graduate
course in
medical education is with the Central Government in terms
of Eintry 66 of List l. In so far as already regulations have
been framed by MCI and though the amended regulations
have been declared to be unconstitutional by the Supreme
Court, Union of India, having insisted for 50% marks in the
qualifying
examination to be the minimum requirement for
eligibility,
'when
the field is occupied by the Central
W.P. C.Nors.5 85 8/,20 1 4 & conn.cases
ll
Legislation,
it is not open for the state Government
to have
issued
a prospectus.
Reference
is arso made to a Division
lJench
of this court in Mohammed
Riaz v. state
of Kerala
[2011
(2)
KL.T 294] in which ir is herd that having regard ro
Entry 25 of L-ist lll and Entry
66 of List t, state has the right to
control education,
including
medical
education
so long as the
field is not occupied
by any Union legislation
and 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 under Entry 66 of List l. lt is further held that though
state can rnake rules for admission, they have to be
consisternt with a nd without adversely affecting the
standards of' education,
as are prescribed
by the Union in
exerr:ise of powers
under Entry 66 of List l. lt is also held that
thourgh there could be a separate and exclusive channel of
fltryt or source of admission for in-service candidates, there
has
1Lo
be only one common entrance test for determining
\M.P.C.Nos;.5
85 8/rl0 1 4 & conn.cases
t2
the eligibility for post graduation
for in-service
candidates
and those not in service. The prescription
as to the
requirement
of an entrance
examination
with a minimum
eligibility
bench mark to be acquired in that entrance test for
6lostgraduate
medical
education is within the field covered
by Entry 66 in List I and the competence
of the state
Legi:'lature
to make a law with reference to Entry 25 in List
lll would not enable it to make any such law encroaching
on
the fielcl occupied by Entry 66 in List l.
10. lt is further
argued that the state Government,
having itccepted the examination conducted by NBE in terms
of Ext.l']1 which prescribes
50% qualification
for general
cater;ory, there was no reason to make any amendments to
the s;arne in the form of a prospectus.
lt is contended that
tlre prospectus
has been issued after the marks were
publisherd
by NBE and therefore it is only for helping certain
persons
in service that such a relaxation is made. The
prospectus
was issued only on 1810212014 when the marks
W.P.C.Nos.
5g5g l20l 4 & conn.cases
la
IJ
were published
on 0LlO2l20I4.
11. with reference
to the
service
euota Act, it is
contended
that
Section
5(3) only gives
power
to the
Government
to issue
the
detairs
of erigibirity
in the
prospectus
and does
not enable
the
Government
to
prescribe
the
eligibility
criteria
as no rules have
been framed
in terms
of Section
5(1) and 5(2) of the Act.
12. lt is further
argued
that in the absence
of any
statuto'y provision,
Government
cannot invoke
Articre L6z of
the Constitution
of India, The argument
is that the KUHS Act
has been enacted
by the Government
which gives power
to
the University
under
Section 25(vi) of the Act to prescribe
minimum
eligibility
criteria for all admissions.
when the
statute gives power
to an authority for prescribing
the
eligibility
for admissions
to various courses which includes
PG medical
courses, it was not open for the Government
to
invoke
Article L62 of the constitution
of India, Learned
senior counsel relied
upon the
judgment
of the supreme
W.P.C.Nos.5858/20
I 4 & conn.cases
Court in P.H.
5 SCC 2I4].
Paul Manoj Pandian v.
p.
Veldurai,
t(2011)
Reference
is made to paragraphs
46 and 47
IA
TT
which reads as under:
"46.
Under Article 162 of the Constitution,
the
executive power
of fhe sta te extends to matters
with respect to which the stafe Legislature
has
power
to make laws.
yet
the limitations
on the
exercise of such executive power
by the
Government
are twofold; first, if any Act or law
ha.s been made by the state Legistature
conferring
anv function on any other authority, in that case
the: Governor is not empowered to make any order
in regard to that matter in exercise of his
ext"cutive power
nor can the Governor exercise
su<-h power
in regard to that matter through
officers subordinate
to him, secondly, the vesting
in the Governor with the executive power
of the
State Government
does not create any embargo
for the legislature of the state from making and/or
enitcting any law conferring functions on any
authority subordinate to the Governor.
47. Once a law occupies the field, it will not
open to the Stafe Government in exercise of
be
its
W.P.C.Nos .5858 120 | 4 & conn.cases
l5
executive power
under Article
J62 of the
constitution
to prescribe
in the same fietd
by an
executive
order. However, it is well recognised
that
in matters relating to a particular
subject in
absence of any parliamentary
tegistation
on the
said subject, the stafe Government
has the
jurisdiction
to act and to make executive
orders.
The executive power
of the sfate would, in the
absence
of legislation,
extend to making rules
or
orders regulating
the action of the executive.
But,
such orders cannot offend the provisions
of the
constitution
and should not be repugnant
to any
enactment of the appropriate legistature.
subject to
fhese limitations,
such rures or orders may relate to
matters of policy,
may make classification
and may
determine
the conditions of eligibitity for receiving
any advantage, privilege
or aid from the State,,,
13, Learned
senior counsel sri.Ranjith
Thampan
specifically relied on the
judgment
in Harish verma v. Ajay
Srivastava
t(2003) B scc 691 wherein it is held that though
in-service
candidates formurate
a class by themselves
for
whom a separate channel of entry has been carved out and
'W.P.C.No:;.5
85 8/;20 1 4 & conn.cases
16
within the group
there may be scope for assigning weightage
for the rural service rendered,
for the purpose
of determining
the order of merit inter se, the condition as to minimum
qualifying
marks as prescribed
by the Medical council of
lndia cannot be relaxed. lt is further argued that clause 4-4.r
of the prospectus
is totally unreasonable
as there is no
dea rth of ca nd idates who become q ua lified
in the
examination.
lt is pointed
out that out of the 5l seats in
Post Graduation and 40 seats in Diploma course, there are
more than 200 service quota
candidates who were qualified
and having more than 50%,
14. The learned counsel sri.p.K.Vijayamohanan
and
sri,sialim P.A, reiterated the arguments of the senior
counsels.
15. The learned senior Government
pleader,
sri.Roshen D.Alexander
argued that the state has the
legislative competence to enact a special Statute for the service
candidates under Entry 25 of List 3. The validity of the Act
WP.C.Nos.
5859 /201 4 & conn.cases
I7
has not been challenged
in any manner
and by virtue
of
sectiorr
5(3) of the Act, the state Government
is entifled
to
publish
prospectus
showing
the eligibility
criteria
of
candidates
in service quota.
40% seats
of
pG
Medicar
courses is reserved
for candidates
from state Government
service
and among
which it is possible
for the Government
to
pre:;cribe
an eligibility
criteria. The guidelines
issued
by NBE
for the 2014
examination
is not a legislation
in terms
of
Entry 66 of List l and in that event, since the field is not
occupied
by any statute
of the central Government,
it is
open for the State Government
to prescribe
eligibility
criteria
for the service candidates.
Reference is also made to the
orderr issued by the Government proposing
to treat the
exarnination
conducted
by NBE as a qualification
exarnination for Degree
as well as post graduate
medical
admission, But it is made crear that the said examination
will be subject to the state's power
to fix admission
as well
as eligibility criteria. Reference is made to the constitution
W.P.C.Nos
.5858 1 201 4 & conn.cases
18
Bench judgment
in Dr.p.G,sreevastava
v. union
of India
t1999(7) SCC 1201 in which a portion
of paragraph
35 reads
as under:
"Both
the union as well as the stafes have the
power
to legislate
on education inctuding
medicat
education,
subject, inter alia, to Entry 66 of List t
which
deals with taying down standards
in
institutions
for higher
education or research
and
scientific
and technicat
institutions
as also
coordination
of such standards.
A stafe has,
therefore,
the right to control education inctuding
medical education
so tong as the fietd is not
occupied
by any lJnion tegistation.
Secondly,
the
sfate cannot, while controlling education in the
state, impinge
on standards in institutions
for
higher education.
Because this is exclusively within
the purview
of the tJnion
Government. Therefore,
while prescribing
the criteria for admission to the
institutions for higher education incruding higher
medical education, the state cannot adversely
affect the standards laid down by the Union of
lndia under Entry O6 of List t, Secondly, while
considering the cases on the subject it is also