TaxTMI 
TaxTMI 
1981 (9) TMI 294
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....College in the State of Madhya Pradesh. In the State of Madhya Pradesh there are six Medical Colleges affiliated to different Universities in the State. The total number of seats in all these Colleges is 720. By an order dated 2nd April, 1980 the State Government made rules for admission to Medical Colleges, the College of Dentistry Indore and Government Ayurvedic Colleges of the State and the said Rules are called "Rules for Admission into the Medical, Dentistry and Ayurvedic Colleges in Madhya Pradesh" (hereinafter referred to as the Rules). These Rules were made in exercise of the executive power of the State and these Rules are not statutory. By and under Rule 7 of the Rules, the State Government has reserved 15% seats for each of the categories of the Scheduled Castes and Scheduled Tribes candidates. That means, out of 720 seats, 108 seats are reserved for the Scheduled Castes candidates; and the same number, that is, 108 seats are also reserved for the candidates belonging to the category of Scheduled Tribes. By and under the same Rules, 15% seats are reserved for women candidates and seats not exceeding 3% are reserved for the children of military personnel. Under Rule 8, so....
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....t of the examination, the Board in exercise of the power under Note (i) to Rule 20 made a relaxation of 5% in terms thereof and thereafter 7 more candidates in the category gory of Scheduled Castes and one more in the category of Scheduled Tribes got admitted. Thus oat of 108 seats reserved for each category of the Scheduled Castes and Scheduled Tribes, only 25 seats could be filled in the category of Scheduled Castes and three in the category of Scheduled Tribes. As only a very few candidates of these two categories could get admitted into Medical Colleges and a large number of seats reserved for them could not be filled up by the candidates of these two categories on the basis of the result of the examination even after relaxation had been made in terms of the provisions contained in Note (i) to Rule 20, the State Government passed an order on the 9th September, 1980 completely relaxing the conditions relating to the minimum qualifying marks for these two categories. the order dated 9th September, 1980, the validity of which has been questioned in the Writ Petitions filed by Nivedita Jain in the High Court, is to the following effect:- "The Government has taken a decision that....
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....al Council Act, 1956, exposing the medical colleges to the risk of being derecognised; and (2) that the order of the Government will have the effect of allowing less qualified and less deserving candidates to fill up the seats and would, therefore, destroy equality and violate Arts. 14 and 15 of the Constitution. It appears from the judgment of the High Court that another ground, namely, that the order dated 9th September, 1980 was violative of ordinance 94 of the University of Jabalpur, was also urged before the High Court, though this ground does not appear to have been taken in the petition. The High Court accepted the contention of the writ petitioner that the order in question violated Regulations of the Council holding that "the executive power of the State under Art. 162 cannot be so exercised as to over-ride the statutory provisions, more so when the said provision is in a field occupied by the Union List. The executive power can be used to supplement a law but not to supplant it" The High Court further held that "the total relaxation of minimum marks for the candidates belonging to these categories cannot be supported under Art. ] S(4) being violative of the Regulati....
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.... it must be open to the State to lay down such conditions as will make such reservations effective and will enable the candidates belonging to the categories of Scheduled Castes and Scheduled Tribes to get the benefits of such reservations, in discharge of the duties and obligation of the State, to the members of those communities and other backward communities. It is his submission that in the instant case when the State found that the qualifying conditions laid down for the admission of the candidates belonging to those communities had in reality resulted in denial of the opportunities sought to be given to them, the Government considered it expedient to relax the conditions to enable the candidates of those communities to get the admission to medical colleges for prosecuting their studies to become qualified medical practitioners. Mr. Phadke has contended that the provisions contained in Regulation II for violation of which the order in question has been struck down, are directory in nature and they are not mandatory in character, and, as such, they do not have any binding effect; and it is open to the State to make Rules which may not be in accord with the provisions contained ....
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....standards in institutions for higher education or research and scientific and technical institutions", is not intended to deal with the question of selection of candidates and item 25 in List III which provides for "education including technical education, medical education in universities subject to provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour", is broad enough to include all matters relating to education subject to the provisions of entries 63, 64, 65 and 66 of List I and empowers the State to frame rules relating to selection of candidates for admission. Mr. Phadke has submitted that the Council must have been aware of the limitations of its power in the matter of selection of candidates for admission; and, the Council has, therefore, made only a recommendation in this regard and has not made any mandatory provision about it. In this connection Mr. Phadke has referred to the language used in Regulation II and has contrasted the same with the language used in Regulation I of the Regulations. Mr. Phadke submits that as Regulation II is only in the nature of a recommendation and directory, any rules framed by the State Government re....
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....on of the Council. Mr. Kacker has placed us various sections of the Act in support of his submission that regulating selection of students for admission to medical colleges justly comes within the jurisdiction and function of the Council. In this connection, Mr. Kacker has also referred to the decision of this Court in the case of State of Kerala v. Kumari T.P. Roshana and Anr. (1) and he has relied on the following observations at p. 984:- "The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses". Mr. Kacker submits that in the instant case there is no dispute that the order of the Government dated 9th September 1980 in question clearly contravenes Regulation II of the Council. Mr. Kacker has also d....
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.... contained in Regulation II of the Council. The main question that falls for determination is whether the order in question which contravenes Regulation II is liable to be struck down on the ground that the State Government by an executive order is purporting to override Regulation II of the Council. For a proper determination of the question it is necessary to understand the true nature of the said Regulation II and to consider whether the said Regulation is of mandatory character with statutory force. The contention of the appellants, as we have earlier noticed, is that Regulation II is only in the nature of a recommendation and is directory and has no statutory force; and the contention of the Respondent Nivedita Jain, on the other hand, has been that the said Regulation is mandatory in character with statutory force. For a proper appreciation of these rival contentions, it becomes necessary to analyze and understand the scheme of the Act and the Regulations framed thereunder. The Act was enacted "to provide for reconstitution of the Medical Council of India and the maintenance of Medical Register for India and for matters connected therewith". S. 2 deals with definitions and de....
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.... the Council. The said Section 19 further provides that in the event of any representation being made to the Central Government by the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated and the State Government shall forward it along with such remarks as it may make to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government; and on receipt of the explanation, if any within the stipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government and the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manner laid down in sub-sec. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows : "(1) The Council may prescribe the minimum standards A of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in....
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.... ... ... ... ... ... ... ... ... ... ... (j) the courses and period of study and of practical training to....
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....Government may take action in terms of the provisions contained in S. 19 of the Act. The Act also empowers the Council to take various measures to enable the Council to judge whether proper medical standard is being maintained in any particular institution or not. Now coming to the consideration of the question involved in this appeal, it appears from the provisions of the Act that the . authority of the Council extends to the sphere of maintaining proper medical standards in medical colleges or institutions necessary for obtaining recognised medical qualifications. By virtue of this authority it may be open to the Council to lay down the minimum educational qualifications required of a student who may seek admission into a medical college. In other words, the eligibility of a candidate who may seek to get admitted into a medical college for obtaining recognised medical qualifications may be prescribed by the Council. All the candidates who are eligible for admission into Medical Colleges or Institution for getting themselves qualified as medical practitioners are entitled to seek admission into a Medical College or Institution. As to how the selection has to be made out of the ....
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....dmission into the medical course. Sub-s. (j ), (k), and (I) relate to post admission stages and the period of study after admission in medical colleges. Sub-s(m) of S. 33 relates to a post-degree stage Sub-s. (n) of S. 33 which has also been quoted earlier is also of no assistance as the Act is not concerned with the question of selection of students out of the eligible candidates for admission into medical colleges. It appears to us that the observations of this Court in the case of Arti Sapru v. State of Jammu and Kashmir and Ors. (supra) which we have earlier quoted and which were relied on by Mr. Phadke, were made on such consideration, though the question was not very properly finally decided in the absence of the Council. We shall now consider the two relevant Regulations of the A Council and they are Regulations I and II. The said Regulations read:- I. Admission to the Medical Course No candidate shall be allowed to be admitted to the Medical Curriculum proper until: (i) he has completed the age of 17 years at the time of admission or will complete the age on or before 31st December of the year of his admission to the Ist M.B.B.S. Courses. Provided that the candidat....
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....al college (f) any other examination which, in scope and standard is found to be equivalent to the intermediate science examination of an Indian University-Board, taking physics, chemistry and biology, including a practical test in each - of these subjects and English. Note: (a) The pre-medical course may be conducted either at Medical College or a Science College. (b) After the 10+2 course is introduced, the integrated course should be abolished. II. Selection of Students. The selection of students to a medical college should be based solely on merit of the candidate and for determination of merit, the following criteria be adopted uniformly throughout the country:- (a) In States, having only one Medical College and one University/Board/Examining body conducting the qualifying examination, the marks obtained at such qualifying examination be taken into consideration. (b) In States having more than one University/Board/ Examining Body conducting the qualifying examination (or where there are more than one medical college under the administrative control of one authority), a competitive entrance examination should be held so as to achieve a uniform evaluation due t....
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....l courses. For maintaining proper standards in medical colleges and institutions it comes within the competence of the Council to prescribe the necessary qualification of the candidates who make seek admission into the Medical Colleges. As this Regulation is within the competence of the Council, the Council has framed this Regulation in a manner which leaves no doubt that this Regulation is mandatory. The language of this Regulation, which starts with the words "no candidate shall be allowed to be admitted to the medical curriculum until.. ", makes this position absolutely clear. On the other hand the language in Regulation II which relates to selection of candidates clearly goes to indicate that the Council itself appears to have been aware of the limitation on its powers to frame any such regulation regarding the procedure or process of selection of candidates for admission to the Medical Course out of the candidates qualified or eligible to seek such admission. As, however, the question of selection of candidates for admission into medical colleges out of the eligible candidates is a h problem more or less common to all the States, the Council might have considered it desirable ....
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.... also goes to suggest that Regulation II is merely directory and does not have any mandatory force. Apart from reservations of seats for Scheduled Castes Scheduled Tribes categories and other reservations, reservation of seats is commonly made for being filled up by nomination. In the instant case before us, it appears that the seats not exceeding three per cent are reserved for the nominees of the Government of India apart from the other reservations. These nominees of the Central Government do not have to sit for any pre-medical examination to qualify themselves for selection to the medical colleges. They must of course be eligible for admission in the sense that h ey must have the necessary qualification for admission in accordance with Regulation I. The candidates eligible under Regulation I are selected by virtue of nomination and there is no question of any pre- medical test for such candidates nominated by the Central Government. If Regulation II could be considered to be mandatory, there could be no such nomination of candidates by the Central Government. Entry 66 in List I (Union List) of the 7th Schedule to the Constitution relates to "co-ordination and determination o....
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.... of the Scheduled Castes and Scheduled Tribes and other backward communities and the State is entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empower the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary. In the State of Kerala and Anr. v.N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules which required a lower division clerk....
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.... The view expressed by the Patna High Court in the case of Amalendu Kumar v. State of Bihar (supra) that Art. 15 (l) of the Constitution cannot be meaningful and will become illusory until minimum standards of proficiency are laid down and followed in the matter of admission to Medical Colleges and if undeserving candidates are admitted into medical colleges, the standard of medical education will go down, undeserving candidates admitted to medical colleges would not be able to pass out and qualify as doctors and there may be many drop-outs and doctors not properly qualified will prove a danger to society, appears to be untenable. It fails to notice that there is no relaxation in the standard of medical education or curriculum of studies in medical colleges for those candidates after their admission to the college and the standard of examination and the curriculum remains the same for all. There may be drop- outs and many of these candidates may not qualify. There may also be such failures and drop-outs in the case of other candidates than those belonging to these categories. It is eminently desirable that some kind of minimum standard for selection for admission to medical college....