TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. UNION OF INDIA & OTHERS

The Judgments of the Court were delivered by M. R. SHAH, J.

1Copy pinpoint1. Leave & permission granted in the respective special leave petitions. C

2Copy pinpoint2. After considering the judgment rendered by a three Judge Bench of this Court in the case of State of U.P. v. Dinesh Singh Chauhan 1, another three Judge Bench, pursuant to order dated 13.4.2018 in the case of T.N. Medical Officers Association v. Union of India2, has referred the present batch of cases to a larger Bench. D

2.1 In the case of Dinesh Singh Chauhan (supra), a three Judge Bench construed the provisions of Regulations 9(IV) and 9(VII) of the MCI Postgraduate Medical Education Regulations, 2000, as amended on 15.2.2012 (hereinafter referred to as the “MCI Regulations 2000”). In the case of Dinesh Singh Chauhan (supra), while considering the E aforesaid Regulations, this Court held that the aforesaid Regulations do not provide for any reservation for in-service government doctors in PG degree courses, and therefore, the State Government order providing the reservation for PG degree courses for in-service government doctors is held to be illegal. F 2.2 The present batch of cases came up for hearing before another Bench of three Judges. The Bench was of the opinion that the present batch of cases require consideration by a larger Bench and that is how the present batch of cases are referred to a larger Bench. On the basis of the submissions made, the following reasons were G mentioned: “(i) The decision in Dinesh Singh Chauhan 1 has not considered the entries in the legislative lists of the 1 (2016) 9 SCC 749 2 (2018) 17 SCC 478 H

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A Seventh Schedule, more particularly Entry 66 of the Union List and Entry 25 of the Concurrent List; (ii) The main contention of the petitioners is that while coordination and determination of standards in institutions for higher education falls within the exclusive domain B of the Union (Entry 66 List I), medical education is a subject in the Concurrent List (Entry 25 List III). Though, Entry 25 of List III is subject to Entry 66 of List I, the State is not denuded of its power to legislate on the manner and method of making admissions to postgraduate medical courses; C (iii) The contentions which have been raised in the present batch of petitions were not addressed before this Court in Dinesh Singh Chauhan1; (iv) The judgment in Dinesh Singh Chauhan1 does not D consider three decisions of the Constitution Bench in R. Chitralekha v. State of Mysore (1964) 6 SCR 368 :AIR 1964 SC 1823, Chitra Ghosh v. Union of India (1969) 2 SCC 228 and Modern Dental College & Research Centre v. State of M.P. (2016) 8 SCC 353; and

E (v) There are decisions rendered by Benches of an equal strength as in Dinesh Singh Chauhan1.” 2.3 Now so far as Civil Appeals arising out of the Special Leave Petitions(C) Nos.26448-26449 of 2019 are concerned, they arise out of the impugned judgment and order dated 01/10/2019 in MAT Nos. F 1245 and 1267 of 2019 passed by the High Court at Calcutta, by which the Division Bench of the High Court has dismissed the batch of appeals confirming the order passed by the learned Single Judge holding that the State has no authority to reserve 40% seats for the in-service doctors and 60% seats for open category doctors. 2.4 In Writ Petition (Civil) No. 196 of 2018 filed under Article G 32 of the Constitution of India, the petitioners – Tamil Nadu Medical officers’ Association and others, for and on behalf of the in-service doctors in the State of Tamil Nadu have prayed for the following reliefs: a) declare by issuance of a writ of mandamus or any other suitable writ/order/direction that Regulation 9 of the Post H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 603 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

Graduate Medical Education Regulations, 2000 (more A particularly, Regulation 9(IV) and 9(VII), does not take away the power of the States under Entry 25, List III to provide for a separate source of entry for in-service candidates seeking admission to Degree courses; b) Alternatively, if Regulation 9 of the Post Graduate B Medical Education Regulations, 2000 is understood to now allow for States to provide for a separate source of entry for in-service candidates seeking admission to Degree courses, declare, by issuance of a writ of mandamus or any other suitable writ/order/direction, Regulation 9 (more particularly, Regulation 9(IV) and C 9(VII) as being arbitrary, discriminatory and violative of Article 14 and 19(1)(g) of the Constitution and also ultra vires the provisions of the Indian Medical Council Act, 1956. Somewhat similar prayers are also sought for on behalf of the D in-service doctors in the State of Kerala (Writ Petition (Civil) No. 252/ 2018); in-service doctors working in the State of Maharashtra (Writ Petition (Civil) No. 295/2018); and for and on behalf of the in-service doctors working in the State of Haryana (Writ Petition (Civil) No. 293 of 2018). E 2.5 IA Nos.61442, 61443 and 61445 of 2020 have been preferred by the GMS Class II Medical Officers Association being aggrieved by the Public Notice dated 28.02.2019 as amended by the Corrigendum dated 10.03.2019, wherein, Medical Council of India has permitted the conversion of Diploma seats into Degree seats in the State of Gujarat. The said application is filed for and on behalf of in-service Medical F Officers working in the State of Gujarat. 2.6 IA No.24759 of 2020 in Writ Petition (Civil) No. 252 of 2018 has been preferred by Kerala Government Insurance Medical Association and others supporting the reservation for in-service Medical Officers/Candidates in the Post-graduate Degree Courses. G

3Copy pinpoint3. Learned counsel appearing on behalf of the respective petitioners/parties, more particularly, Tamil Nadu Medical Association, State of Tamil Nadu, State of West Bengal and others in support of the reservation for in-service Medical Officers/ Candidates/Doctors in Post-graduate Degree Courses have made the following submissions: H

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A 3.1. The moot question is whether the State Government is competent to provide for a reservation for candidates who are already serving the Government. Such reservation is made for Post-graduate seats in the different medical colleges in the State. The competence of the State Government is traceable to Article 245 r/w Entry 25 List III of the 7th schedule to the Constitution. It cannot be said that there has to be a legislature made law to provide for such reservation. The Government can in exercise of its power as an Executive under Article 154 provide for such reservation and it has been so provided as well. Once competence is found in favour of Government then only question is one of a possible conflict with a Central Law and the resolution of any question of repugnancy. It is submitted that said question really does not arise in the present case; 3.2. The competence of the State Government to bring about a law dealing with admissions of in-service candidates is upheld by the Constitutional Bench of this Court in the case of Modern Dental D College and Research Centre and Others vs. State of Madhya Pradesh and Others3. The argument raised on behalf of the Centre that Entry 25 of List III itself would be subject to Entry 66 of List I has also been considered by this Court; 3.3. There is no question of any conflict of Entry 25 of List III E and Entry 66 of List I. The subject of admission to courses is referable to Entry 25 of list III and not Entry 66 of List I. It is submitted that conflict, if any, can only be between a State Law and a Central Law both sourced to Entry 25 of List III. That no such conflict is present in the instant case; F 3.4. There is no plenary law by the Centre provided for any reservation for in-service candidates. In other words, there is no Central Law governing the said aspect, therefore, it would be competent for the State Government to provide for a reservation for in-service candidates. In the absence of a Central Law, it is obviously open to G the State Government to provide for a legal instrument, whether by way of a statute or by an executing order providing a reservation for in- service candidates; 3.5. The MCI Regulations, 2000, which are made under the Medical Council Act provide for a reservation in Post-graduate Diploma H 3 (2016) 7 SCC 353

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 605 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

Courses for in-service candidates serving with the respective State A Governments. There is no bar to such reservation in Post-graduate Degree Courses. The bar, if any, has to be express and cannot be implied. Clause 9(IV) of the MCI Regulations, 2000 can be construed as provided for community reservations and also a reservation for in- service candidates. Even otherwise, it does not enable explicitly the State B Government to provide for a weightage in marks, amongst in-service candidates. Thus, the legislative instrument which could be sourced to the MCI, which in turn is a body established by the Central Government under the Medical Council Act itself recognizes an empowerment of the State Government, inter alia, to lay down the modalities to regulate or provide for a reservation for in-service candidates in Post-graduate C seats. If that be so, then the actual prescription of a reservation for in- service candidates, in relation to Post-graduate Degree seats obviously has not come into conflict with the MCI Regulations, 2000 so as to attract Article 254 of the Constitution; 3.6. The MCI Regulations, 2000, not expressly providing for a D reservation in Post-graduate Degree seats, specifically empowering the State Government to do so, but only touches upon the reservation in Diploma seats, it does not follow that the State Government is incompetent to provide for reservation for in-service candidates in Degree seats as well. The competence of the State Government to provide for reservation for in-service candidates is not sourced to the E MCI Regulations, 2000, but it is sourced to Entry 25 of List III. Thus, the absence of any mention of reservation for candidates in Post- graduate Degree seats in the Regulations, 2000 cannot support a submission by the MCI that consequently the State Government would be incompetent to provide for any reservation for in-service candidates F in Degree seats; 3.7. The MCI Regulations, 2000 would become relevant only when it provides for reservation in Post-graduate Degree seats and the State Government brings about a policy of reservation in Post-graduate Decree seats at variance from the protocol laid down in the MCI G Regulations. The MCI Regulations, 2000 are silent in regard to the reservation in Post-graduate Degree seats and therefore, possible repugnancy under Article 254 of the Constitution of India really cannot arise between an instrument by the State Government and an instrument by the Central Government which does not cover the subject or touch upon the subject provided for by the State Government; H

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A 3.8. Assuming without admitting that though MCI Regulations do provide for a conversion of Diploma seats into Degree seats, by the State Government with the approval of the MCI, the MCI Regulations, 2000 do not specifically mention the consequences of such conversion. When law provides for a particular event to take place then all reasonable consequences that emanates therefrom should also be inferred, should be applied to the present situation as well; 3.9. Even MCI Regulations, 2000 themselves provide for reservation for in-service candidates in Diploma and also provides for service condition to be fulfilled thereunder. The conversion of Diploma seats into Degree seats (now after 2018) would obviously result in the same permissible reservation for in-service candidates to be provided for Degree seats as well. All that would be required is the imposition of the same conditions as are provided in the Diploma seats; 3.10. The decision of this Court in the case of Dinesh Singh Chauhan (Supra) also requires re-look in view of the subsequent development viz. Notification dated 12.07.2018 by which, MCI has permitted the Medical College/Medical Institution to “seek equal number of Post-graduate Degree seats by surrendering recognized diploma seats in corresponding course”. It is submitted that pursuant to the said Notification the medical colleges/institutions are/were given the option of converting the available post graduate diploma seats into Post- graduate Degree seats in a 1:1 ratio. It is submitted that pursuant to the said notification most of the medical colleges/medical institutions in the respective States have surrendered the Post-graduate Diploma seats and have converted the same to Post-graduate Degree seats. It is submitted that resultant effect is that now there shall not be any Post- F graduate Diploma seats available and therefore, in-service candidates are left in a situation where even the limited benefit conferred on them in form of 50% reservations in Post-graduate Diploma Course can no longer be availed. As a result, in-service candidates have been left in a complete lurch since they would neither be able to qualify for Post- G graduate Degree course in adequate numbers nor be in a position to avail the Post-graduate Diploma seats previously available in the Government Colleges. In view of the above development, the reasoning in the case of Dinesh Singh Chauhan (supra) as to the difference in the Regulations between Post-graduate Diploma and Degree courses no longer survives; H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 607 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

3.11. Right of the State Government to set apart a definite percentage of educational seats at Post-graduate level consisting of Degree and Diploma courses exclusively for a class of persons as a separate source of entry has been repeatedly upheld by this Court with the condition that source is properly classified –whether on territorial, geographical or other reasonable basis and has a rational nexus with the object of imparting a particular education and effective selection for the purpose. Reliance is placed upon the decision of this Court in the cases of (1) Kumari Chitra Ghosh and Anr. vs. Union of India & Ors.4; (2) D.N. Chanchala vs. The State of Mysore and Ors.5; (3) K Duraisamy & Anr vs. State of Tamil Nadu and Ors 6; (4) AIIMS Students Union vs. AIIMS7; and (5) State of Madhya Pradesh & Ors C vs. Gopal D Tirthani and Ors8; 3.12. It has been consistently held by this Court that there is a legitimate and rational basis in providing a separate channel/source of entry for in-service candidates in order to encourage them to offer their services and expertise to the State. It is submitted that this Court has D acknowledged that this has a sufficient nexus with the larger goal of equalization of educational opportunities and to sufficiently prefer the doctors serving in the various hospitals run and maintained out of public funds, in the absence of which there would be serious dearth of qualified Post-graduate doctors to meet the requirements of the common public; E 3.13. Unlike reservation envisaged for Scheduled Caste/ Schedule Tribes, this is a distinct and vitally important public purpose in itself absolutely necessitated in the best of public interest. In the case of Dinesh Singh Chauhan (supra) this Court has held that no fault can be found with the method of providing a separate channel of entry for in-service candidates for the reason that the facilities for keeping up F with the latest medical literature might not be available to such in-service candidates and the nature of the work makes it difficult for them to acquire knowledge about very recent medical research, which the candidates who has come after freshly passing their graduation examination might have; G

4 (1969) 2 SCC 228 5 (1971) 2 SCC 293 6 (2001) 2 SCC 538 7 (2002) 1 SCC 428 8 (2003) 7 SCC 83 H

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A 3.14. In the case of Modern Dental College and Research Centre (supra), the Constitution Bench of this Court has affirmed that even though Entry 25 List III is subject to Entry 66 List I, the power of States to enact laws concerning admissions would not stand extinguished so long as such laws did not have the effect of wiping out the law enacted by the Union under Entry 66 List I; B 3.15. When the States create a separate source of entry for in-service candidates, the standards of medical education are not impinged inasmuch as; (a) only eligible in-service candidates can qualify i.e. those have obtained minimum eligibility marks; C (b). amongst eligible in-service candidates admission is made based on inter-se-merit; (c). The preferential weightage would merely alter the order in which in–service candidates would rant in the merit list prepared for in-service candidates. Thus, it would not be a case of ‘double reservation’; 3.16. As held by this Court in the case of Yatinkumar Jasubhai Patel & Ors vs. State of Gujarat and Ors9, which was in the context of “institutional preference” for Post-graduate Medical Admission, only obligation by virtue of introduction of NEET is that the State cannot hold any separate test for admissions to Post-graduate courses. As observed, even while giving the admission in the State quota/institutional reservation quota, the merit determined on the basis of NEET will still have to be considered. It is submitted that therefore, provision of a separate source of entry for in-service candidates shall not dilute the standards of higher education in any manner since the candidates in question would still have to obtain the minimum merit prescribed under NEET; 3.17. The reservation referred in the opening part of Regulation 9(IV) is only with respect to reservation as per the constitutional scheme i.e. SC, ST and OBCs and not for in-service candidates or Medical G Officers in–service. This is also acknowledged by this Court in the case of Dinesh Singh Chauhan (supra) in para 25.4. It is submitted that therefore, there is no merit in the statement of defence by the respondent that in-service candidates for Post-graduate Degree Course are already governed by the reservation provided for in Regulation 9(IV); H 9 (2019) 10 SCC 1

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 609 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

3.18. It is submitted that so far as State of Tamil Nadu is concerned, the Hon’ble Chief Minister of Tamil Nadu in his letter dated 25.4.2017 to the Hon’ble Prime Minister, has highlighted that providing only 30% weightage to in-service candidates seeking admission to Post- graduate Degree Course is not enough since if this procedure is followed, out of the 557 Post-graduate government seats available under the State quota in Tamil Nadu, only 20 seats would go to in-service quota candidates. It is submitted that vide letter dated 6.2.2019, the State of Tamil Nadu wrote to the Ministry of Health and Family Welfare and highlighted the contribution of the policy to provide 50% reservation for in-service candidates in Post-graduate degree courses in attracting meritorious Doctors to Government service and also enabling the State C Government to provide uninterrupted health care in rural, difficult and remote areas of the State. It is submitted that it was further highlighted that this reservation was critical for the maintenance of quality health care in the government medical facilities; 3.19. Learned counsel appearing on behalf of the State of Tamil D Nadu has highlighted the benefits to be achieved by providing 50% reservation for in-service candidates in Post-graduate Degree/ Diploma Courses. It is submitted that continuance of given incentive marks and reserving 50% seats for in-service candidates who performed duty in remote, rural area, hilly terrain etc. in Post-graduate courses will sustain the achievement made by the State Government in the health sector and provide valuable medical care to the poor and vulnerable society. It is submitted that therefore, it is in the larger public interest of the State that there is a provision for 50% reservation in Post-graduate Degree/Diploma Courses/seats for in-service candidates; 3.20. So far as the State of West Bengal is concerned, learned counsel appearing on behalf of the State of West Bengal as well as Government Doctors serving in the Government Hospitals in the State of West Bengal in support of the reservation of 40% of the state quota Post-graduate Medical seats for in-service Doctors have made in addition to the following submissions: G 3.20.1. That the State of West Bengal has enacted the West Bengal Health Services Act, 1990 for controlling the services of the in-service doctors. Under Section 21 of the said Act, the State has the Rule making power and in exercise of that power the State has enacted the West Bengal Health Service and the West Bengal Medical Education H

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A Service and the West Bengal Health and Public Administrative Service (Placement on Trainee Reserve) Rules, 2015. As per the note of Rule 3 of the said Rules, the State is empowered to make reservation in the seats of the Medical Courses of the State Universities for its officers under West Bengal Health Service and the West Bengal Medical Education Service and the West Bengal Health and Public B Administrative Service. It is submitted that such note was also there in the Rules of 2008, which came to be repealed in view of enactment of Rules 2015. That the Government vide order dated 18.4.2013 provides for the reservation of 40% of the State quota Post-graduate Medical seats for the in-service doctors in exercise of such power; C 3.20.2. That the action of the State to provide in-service quota is in the discharge of its positive constitutional obligations to promote and provide better health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialized health care facility. Such action is in discharge of its constitutional obligations as provided in Article 47 of the Constitution of India which is the corresponding fundamental right of the citizens protected under Article 21 of the Constitution of India; 3.20.3. The State can fix a separate source of admission as the in-service doctors are distinct class. The classification has sufficient nexus with the laudable object of meeting the requirement of qualified Post-graduate doctors for the public health service. Reliance is placed upon decision of this Court in the case of Sudhir N vs. State of Kerala and Ors. 10; 3.20.4. By way of providing separate source of entry to the in-service doctors, the State has not impinged upon the minimum standards prescribed by the Medical Council of India as in-service candidates are selected on the basis of their merit assessed on the basis of their marks obtained in the NEET examination; 3.20.5. The action of providing separate quota for the in-service doctors is not violative of the Regulation 9(IV) of the MCI Regulations, 2000 as the same categorically states in an unambiguous manner, inter alia, that the reservation of seats shall be as per applicable laws prevailing in the State. By giving restrictive meaning to the term ‘reservation’ as only constitutional reservation, it would be putting words 10 H (2015) 6 SCC 685 (paras 22 to 24)

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 611 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

to the legislation which is otherwise unambiguous and includes all kinds of reservation including that of in-service; 3.20.6. In-service Doctors come with vast practical experience of serving several years in the Government Health Services and treating countless patients. Whereas the fresh MBBS graduates, even though may score higher because of their recent connection with the textbooks, do not have any such experience. Their marks are only reflective of their theoretical knowledge and ability to memorize and answer examination questions. It is submitted that thus, in-service Doctors having vast experience and fresh graduates having no such experience, form two different classes and cannot be equated. It is submitted that forcing in-service Doctors to compete with the fresh graduates in their theoretical knowledge will be extremely, unfair, illogical and irrational; 3.21. In addition, learned counsel appearing on behalf of the private appellants in the Civil Appeals arising out of impugned judgment and order passed by the High Court of Calcutta and in-service candidates have further submitted that the reservation notification was issued on 18.4.2013 and the writ petition has been filed after first counselling was over for 2019 admission. All admissions were completed in May 2019 and 285 doctors out of the State quota of 699 have almost completed the first semester. It is submitted that therefore, alternatively it is prayed to observe that the impugned judgment and order passed by the High Court may not affect the admission already granted and may not affect those in-service candidates who are already admitted prior to filing of the petition / impugned judgment and order passed by the High Court;

4Copy pinpoint4. The applicant of IA No.61442 of 2020 – GMS Class II F Medical Officer’s Association and Association of in-service Government Medical Officers in the State of Gujarat are as such aggrieved by the Public Notice dated 28.02.2019, as amended by a Corrigendum dated 10.03.2019, wherein Medical Council of India has permitted the conversion of Diploma seats into Degree seats on the ground of doctrine of Legitimate Expectation and on the ground that the same is in teeth G of and to bypass the order passed by this Court dated 19.5.2017 in the matter of Special Leave Petition (Civil) No.31395 of 2017. It is submitted that in the aforesaid case this Court directed the State of Gujarat to conduct the counselling keeping in view the regulation which provides for 50% of seats to be reserved in the Post-graduate Diploma H

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A Courses for Medical Officers in the government service who have served for at least three years in remote and/or difficult areas. It is the case on behalf of those in-service Medical Officers working in the Government Colleges in the State of Gujarat that by the aforesaid vested rights in favour of those in-service candidates and to avail 50% reservation in Post-graduate Diploma Courses have been taken away. B It is their case that what cannot be done directly, shall not be permitted to be done obliquely. It is also their case that so far as the State of Gujarat is concerned, there is no provision for giving 30% incentive for Post-graduate Degree Courses displaced in Clause 9(IV) of the MCI Regulations, 2000. It is submitted that therefore, on one hand Diploma C seats are being decreased and on the other hand there is no provision for providing incentive marks in the Degree Courses to the in-service Medical Officers, who have worked in rural areas. It is submitted that the applicant has already filed writ petition before the Gujarat High Court being Special Civil Application No.5773 of 2019 challenging the vires of Rule 6 of the Gujarat Professional Post-graduate Medical D Educational Courses (Regulation of Admission) Rules, 2018 as well as conversion of Diploma seats into Degree seats and the same is pending; 4.1. Learned counsel appearing on behalf of the respective writ petitioners – in-service doctors have made the following submissions in respect of their alternative prayer/prayers to declare Regulation 9, E more particularly, Regulation 9(IV) and 9(VII) of the MCI Regulations, 2000, as arbitrary, discriminatory and violative of Article 14 and 19(1)(g) of the Constitution of India and also ultra vires the provisions of the Indian Medical Council Act, 1956; 4.2 That so far as the State of Tamil Nadu is concerned, it is submitted that since the year 1989, the State of Tamil Nadu has had a policy of providing a separate source of entry to in-service candidates to the extent of 50% of the State seats in degree courses. Further, since the year 2007, by way of a Government Order, the State of Tamil Nadu has also provided for preferential weightage to those in-service candidates who have served in rural, hilly and difficult areas. Therefore, the policy of the State Government has been adopted with a view to ensure adequate healthcare in the public sector and to further ensure filling of vacancies in government hospitals, particularly in rural, hilly and difficult areas. That the aforesaid policy following by the State of Tamil Nadu has resulted in drastic improvement in the overall public H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 613 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

healthcare with adequate staffing across the State and improvement in health indicators, particularly when compared to other States in the country; 4.3 Learned counsel appearing on behalf of the in-service candidates working with the State of Kerala has submitted that the State of Kerala had a policy of reserving 40% of the seats available in postgraduate medical admission for in-service candidates serving in the Health Service Department, Medical College Lecturers and doctors serving in the ESI Department of the State. That MCI Regulations, 2000, however, made it mandatory for all candidates seeking admission to postgraduate medical courses to appear for a common entrance examination. The MCI Regulations, 2000, inter alia, provide that candidates who appear 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 hardship faced by the in-service candidates who were working round the clock for the benefit of the public could hardly find time to update their knowledge and compete with the general merit candidates, the Government of Kerala brought the Kerala Medical officers Admission to Post Graduate Courses under Service Quota Act, 2008 to overcome the difficulties faced by in-service candidates in the matter of getting admission to postgraduate courses; 4.4 Learned counsel appearing on behalf of the in-service candidates working with the State of Maharashtra has submitted that so far as the State of Maharashtra is concerned, the State of Maharashtra by a resolution dated 06.01.1990, decided to reserve 15% F of postgraduate seats in Government Medical Colleges for the in-service candidates to meet the acute shortage of doctors in rural areas. The said resolution was issued to serve as an incentive for graduate doctors to take up government service at primary health centres which were suffering due to the acute shortage of doctors in rural areas. However, G since the requirement of doctors was not met with, the State of Maharashtra by another Government Resolution dated 22.02.1996 increased the reservation of seats for in-service candidates from 15% to 25%. However, in view of the Regulations framed by the Medical Council of India, the in-service candidates are suffering and ultimately H

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A the public health in the rural, hilly and remote areas is being suffered and ultimate sufferer is the public at large in those areas; 4.5 So far as the State of Haryana is concerned, it is the case on behalf of the in-service candidates working with the State of Haryana that the State of Haryana had the policy of reserving 27% of B the seats in the postgraduate medical courses in the Government Colleges for in-service candidates. However, the percentage of seats reserved for the in-service candidates was increased in 2001 from 27% to 40% until 2016 for admission to postgraduate medical courses for in-service doctors in Haryana out of the 50% State quota; C 4.6 In respect of their alternative prayers referred to hereinabove, learned counsel appearing on behalf of the respective petitioners – in- service doctors have made the following further submissions: i) In catena of judgments starting from Kumari Chitra Ghosh (supra); K. Duraisamy (supra); AIIMS Students’ Union (supra); and D Gopal D. Tirthani (supra), this Court has repeatedly upheld the right of the State Governments to set apart a definite percentage of educational seats at postgraduate level consisting of degree and diploma courses exclusively for a class of persons as a separate source of entry, with the condition that the source is properly classified whether on territorial, geographical or other reasonable basis and has a rational E nexus with the object of imparting a particular education and effective selection for the purpose; It is submitted that in the aforesaid decisions, this Court has upheld providing in-service candidates a separate source of entry by accepting that the classification of candidates between in-service doctors and non- F service doctors has a reasonable nexus with the objective sought to be achieved, i.e., of providing adequate and affordable healthcare in the public sector; ii) The power of the State to provide for a separate source of entry in matters of admission in medical education flows from Entry G 25, List III of the Constitution, whereas the power of the Union in matters of “coordination and determination of standards” in matters of admission in medical education is derived from Entry 66 of List I and Entry 25 of List III; iii) This Court in the case of Modern Dental College (supra) H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 615 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

has specifically held after considering the earlier decisions that Entry A 66 of List I was a specific entry having a very specific and limited scope, i.e., dealing with “coordination and determination of standards” in institutions of higher education or research as well as scientific and technical institutions. It has been further held that the words “coordination and determination of standards” would mean laying down the said standard and thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. Insofar as medical education is concerned, the same is achieved by parliamentary legislation in the form of Medical Council of India Act, 1956 and by creating a statutory body like Medical Council of India, the functions of which take, within its sweep, determination and coordination of standards in a medical institution and that of educational institutions. It is further observed that when it comes to regulating education as such which includes medical education as well as universities (imparting higher education), that is prescribed in Entry 25 of List III, thereby giving concurrent powers to both Union as well as D States. It is further held that the power of the States to enact laws under Entry 25, List III would not stand extinguished so long as such laws did not have the effect of wiping out the law enacted by the Union under Entry 66 of List I; 4.7 It is further submitted that the observations of this Court in the case of Dinesh Singh Chauhan (supra) as regards Regulation 9 E prohibiting the States to provide a separate source of entry for in-service candidates require re-consideration inasmuch as: a) there is no express or implied bar contained in Regulation 9 which prohibits the States from exercising their power under Entry 25, List III and providing a F separate channel of entry to in-service candidates. On the contrary, the fact that preference is given to in- service candidates is perceived to be a laudable objective by the Union also, is evident from the proviso to Regulation 9(IV) and Regulation 9(VII). However, G Regulation 9 has not (rightly so) prescribed a uniform policy for a separate source of entry since only the State, which is fully aware of the unique and peculiar facts of that State, can, if necessary, provide for a separate source of entry for that State; H

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A b) that this Court relied upon the findings in Sudhir N (supra), to the effect that Regulation 9 is a complete code in itself, to arrive at the conclusion that the State Governments could not provide a separate channel of entry to in-service candidates. However, this Court failed to consider that even in Sudhir N (supra), the case of B Gopal D. Tirthani (supra) had been approved and the impugned law framed by the State of Kerala had been struck down on account of the State of Kerala giving the inter se merits of in-service candidates a go-bye by fixing the criteria for admission as inter se seniority. C Thus, even in Sudhir N (supra), the power of the State Governments to provide a separate channel of entry to in-service candidates was affirmed; c) that this Court did not take into account the fact that by providing a separate source of entry for in-service D candidates, there would be no lowering of standards prescribed by the Medical Council of India since eligible candidates would have met the minimum qualification marks set out in NEET and moreover the admission would take place based on the inter se merits of the in-service candidates; E d) that this Court did not take into account the relevant findings in the case of Modern Dental College (supra), more particularly, paragraphs 29 and 30; e) that this Court also did not consider that its interpretation of Regulation 9 in such a manner as to render the States powerless in the matter of creating a separate source of entry would be contrary to various decisions of this Court which have affirmed the right of the State Government to determine the admission process keeping in view their peculiar conditions with the caveat that there is no laying down of uniform standard prescribed by the Union; f) that mere incentives as mentioned in Clauses (IV) and (VII) of Regulation 9 of the Regulations, 2000 with respect to in-service government doctors will result in less number of people opting Government services thus

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 617 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

affecting the under-privileged and under-served population across the State. That there is an absolute dearth of doctors entering Government services since very few MBBS doctors join government service after their graduation. This situation affects the under- privileged, under-served and poorest of poor people across the country who prefer public sector/government run hospitals or primary health centres for their treatment as they are not in a financial position to afford the private hospitals. Hence, in order to retain the doctors in government services and continue with them for a longer duration, it is vitally important and absolutely necessitated in the best of public interest for the States to carve out a separate channel of entry for the in- service candidates in admission to postgraduate medical courses. Heavy reliance is placed upon the decision of this Court in the case of Pre-PG Medical Sangharsh D Committee v. Dr. Bajrang Soni11; g) that Regulation 9 of the Post Graduate Medical Education Regulations, 2000 cannot expressly or impliedly take away the power of the State Government under Entry 25, List III to provide either reservation or weightage in marks for all the in-service candidates and in no way providing such reservation for all in-service candidates, would be lowering the standard prescribed by MCI since eligible candidates would have met the minimum qualification marks set out in the NEET entrance test and moreover the admission would take place based on inter se merits of the in-service candidates; h) that the power of the State Government to provide for reservation or separate channel of entry for in-service candidates at the postgraduate level so long as the minimum standards of qualification is maintained has been held to be constitutionally valid by this Court in catena of decisions;

11 (2001) 8 SCC 694 H

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A i) that even otherwise providing reservation for in-service candidates in postgraduate diploma courses (as per Regulation 9(VII)) only and not providing any specific provision for reservation for in-service candidates in postgraduate degree courses is absolutely arbitrary and colourable exercise of power. It is submitted that there B is no logic and reason to provide for reservation only in postgraduate diploma courses and not in postgraduate degree courses. It is submitted that not providing for any reservation for in-service candidates in postgraduate degree courses is discriminatory and violative of Article C 14 of the Constitution of India; j) that any interpretation of Regulation 9, which allows for reservation for in-service candidates in diploma courses but prohibits a separate source of entry for in-service candidates in degree courses therefore is wholly arbitrary D and without any application of mind inasmuch as it completely fails to consider that the need to adequately staff rural healthcare is not only at a basic level but more so at a specialised level since the shortage of staff in specialised healthcare is even more acute and serious; E k) that in case Regulation 9 is understood to not provide a separate channel of entry for in-service candidates seeking admission to degree courses, then the same would be ultra vires Section 20 of the Indian Medical Council Act, 956 inasmuch as Section 20 only mandates that MCI prescribes the standards of postgraduate F medical education, i.e., prescribes the minimum qualification marks but does not in any way empower MCI to impede the well-recognised right of the States to create a separate channel for persons it may deem fit; G 4.8 If it is understood that MCI Regulations, 2000 provide for any reservation for in-service candidates in postgraduate degree courses and do not provide a separate channel of entry for in-service candidates, then the same would be ultra vires to Section 33 of the Indian Medical Council Act, 1956 inasmuch as it would be beyond the scope and ambit of the MCI to make any provision for separate channel of entry for in-service candidates;

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 619 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

4.9 The MCI Regulations, 2000 do not and cannot take away the powers of the respective States to make special provision for in-service candidates, looking to the need and requirement of the particular State in exercise of the power under Entry 25 of List III of the Constitution. It is submitted that “institutional preference” for postgraduate medical admissions is held to be permissible by this Court B in catena of decisions. It is submitted that therefore once the “institutional preference” for postgraduate medical admissions within the State quota is held to be permissible, similarly providing a separate channel for in-service candidates in the form of certain percentage by way of reservation, looking to the specific need and requirement of the State and that too within the State quota is certainly permissible and C the MCI Regulations, 2000 cannot take away the powers/authority of the concerned States to make special provision for in-service candidates for postgraduate medical admissions within the State quota and without compromising the merits, namely, following the minimum eligibility criteria framed by the MCI; D 4.10 Learned counsel appearing on behalf of some of the in- service candidates working with the State of West Bengal, in addition, has made the following submissions: a) that the Indian Medical Council Act, 1956 has been enacted for the sole purpose of coordination and E determination of standards in exercise of the power of the Union Legislature under Entry 66 of List I of Schedule VII. The power of regulating “Education” as such is prescribed in Entry 25 of List III giving concurrent power to both States and the Union. The entire gamut of admission is not covered under Entry F 66 of List I of Schedule VII excluding Entry 25 of List III, though Entry 25 of List III is subjected to Entry 66 of List I; b) that there is no conflict between the power of the Union and the States. The occupied field of Union Legislation G is only related to minimum standards of medical education and the State has provided for in-service quota without impinging the prescribed minimum standards; c) that the power of the State in providing reservation has to be tested within the Constitutional framework and the H

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A State has not travelled beyond its powers in providing quota for the in-service doctors in postgraduate medical admission and the same has been provided within the framework of the Constitution of India; d) that the power of the State under Entry 6 of List II of B Schedule VII to legislate in the subject matter of public health and hospital is exclusive. The State of West Bengal has enacted the West Bengal Health Services Act, 1990 under such exclusive legislative power. Under Section 21 of the said Act, the State has the Rule making power and in exercise of that power the State C has enacted the West Bengal Health Service and the West Bengal Medical Education Service and the West Bengal Health and Public Administrative Service Rules,

2015. That as per Note of the Rule 3 of the said Rules, the State is empowered to make reservation in the seats D of the medical courses of the State Universities for its officers under West Bengal Health Service. The Government Order dated 18.04.2013 provides reservation of 40% of the State quota in the postgraduate medical seats for the in-service doctors. Such Note is a part of the Statute; E e) that the action of the State to provide for the in-service quota is in the discharge of its positive constitutional obligations to promote and provide better health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may F get more specialized health care facility. Such action of the State is indeed in discharge of its constitutional obligations as provided in Article 47 of the Constitution of India which is the corresponding fundamental right of the citizens protected under Article 21 of the G Constitution of India; f) that the power of the State under Entry 6 of List II of Schedule VII is exclusive and the same is not subject to any other entry of the List I. The Court cannot give an interpretation which may make such independent entry subject to any entry of List I which was not the intention of the framers of the Constitution of India;

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 621 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

g) that the State can fix a separate source of admission as the in-service doctors are distinct class. The classification has sufficient nexus with the laudable object of meeting the requirement of qualified postgraduate doctors for the public health service; h) that the observations made by this Court in the case of B Sudhir N (supra) that Regulation 9 is a complete code by itself is required to be considered with reference to the context and the controversy in the said case. It is submitted that the observations in the case of Sudhir N (supra) that Regulation 9 is a complete code in itself may not be construed with respect to providing C reservation and/or making special provision like providing separate source of entry for in-service candidates within the State quota and subject to fulfilling all other eligibility criteria fixed and provided by the MCI. It is submitted that in that sense the observations made by this Court D in Dinesh Singh Chauhan (supra) that as held by this Court in Sudhir N (supra) that Regulation 9 is a complete code in itself including the reservation may not be accepted and is not a good law; i) it is further submitted that even as provided under E Regulation 9(IV) of the MCI Regulations, 2000, the reservation of seats shall be fixed as per the prevailing laws in the State. Therefore, by giving restrictive meaning to the term “reservation” as only constitutional reservation, it would be putting words to the legislation which is otherwise unambiguous and includes all kinds F of reservation including that of in-service; 4.11 It is submitted by the learned counsel appearing on behalf of the State of West Bengal that if Regulation 9(IV) is considered to be limited only to reservations in favour of SC/ST/OBC, then the proviso is not in the form of an exception as it is independently dealing with in- G service doctors. The proviso then becomes substantive provision and is more concerned with the marks to be allocated which is the concern of Regulation 9(III). This proviso confers a discretion on the State to provide for weightage in marks for services rendered in remote or difficult areas. The proviso was required because Regulation 9(III) H

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A prescribes for the obtaining of minimum marks in the NEET exam. The States could not have relaxed or tinkered with the marking system. Therefore, proviso enables the State by conferring a discretion to provide for weightage. The proviso has nothing to do with the reservation in the postgraduate degree courses and it will not negate the States power to make reservation; B 4.11.1 Regulation 9(VII) provides that 50% of the seats in postgraduate diploma courses shall be reserved for medical officers in the government service. Firstly, this Regulation merely deals with diploma courses and has no relevance to postgraduate degree courses. Secondly, this provision makes it an obligation on the part of the State C to reserve 50% seats for in-service doctors. The State, is therefore, left with no discretion and is bound to make such reservations in diploma courses. This provision would not negate the discretionary power of the State Government to make reservation for in-service doctors. 4.11.2 Regulation 9 contains no specific clause or expression which would indicate that the field of making reservations for in-service doctors in the postgraduate degree courses has been covered. Hence, Regulation 9 is not a complete and exhaustive code; 4.11.3 That by making Regulation 9(IV) and 9(VII), the intention is not to exclude reservation for in-service candidates in postgraduate degree courses. If the language in the provision was instead of ‘may be given’, ‘shall be given’, the proviso could have become mandatory. Consciously such mandatory language is not used in the proviso. However, if the mandatory language in the nature of ‘shall be given’ was used, then the only way the States could have recognised the in- F service candidates entitlement to postgraduate courses would have been by way of granting incentive as provided therein. Since the language does not indicate that such course is mandatory and is only an enabling provision, the State Rules/Act or directions issued by the respective State Governments providing for reservation for in-service candidates in postgraduate degree courses is not incompatible with the proviso to G clause IV of Regulation 9. It is submitted that unless there is express or implied prohibition of reservation of seats, contained in the MCI Regulations, for in-service candidates in admission to postgraduate degree courses, no incompatibility between the two arises.

5Copy pinpoint5. Learned counsel appearing on behalf of the Medical Council H of India has made the following submissions against the power of the

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 623 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

States to make reservation of seats for in-service candidates in Post- A graduate Degree Courses and also in favour of validity of the Regulation 9 of the MCI Regulations, 2000: 5.1. MCI has framed a comprehensive scheme for admission to Post-graduate Medicine (Degree and Diploma) Courses in the form of Regulation 9 of the MCI Regulations, 2000. The scheme envisaged under Regulation 9 for admission to Post-graduate Medicine (Degree and Diploma) is to be read as a whole. The Regulation 9 when read as a whole show that it is in-service doctors, i.e. doctors who have served in remote and difficult or rural areas notified by the State Government, are given the maximum benefit under the said scheme as compared to other candidates. The benefit given to the in-service doctors is in the form of; (1) reservation in Post-graduate diploma courses; and (2) grant of incentive marks in terms of Regulation 9(IV) of MCI Regulations, 2000. The option of availing incentive marks for Post-graduate degree courses or seeking reservation in post-graduate degree courses is only available to in-service candidates and the said option is not available to a non-service candidate; 5.2. Indian Medical Council Act, 1956 and the Regulation framed thereunder are traceable to Entry 66 of List I of Schedule VII of the Constitution of India and Entry 66 of List 1 provides for “Co-ordination and Determination of Standards” in the field of higher and technical education or research. The standard, criteria, manner and basis of granting admission in medicine courses fall within the exclusive domain of the Medical Council of India. Regulation 9(IV) prescribes the criteria for determination of merit on the basis of which admissions to be granted to students in post-graduate degree courses; F 5.3. The power of the State under Entry 25 of List III to make laws is subject to Entry 66 of List I of Schedule VII of the Constitution. The primacy will have to be given to Legislation framed by the Parliament or delegated legislation made in exercise of powers conferred under such Legislation on matters under Entry 25 of List III, over the Legislation/delegated legislation framed by the State Legislature or G authority designated by the State Legislature; 5.4. As held by this Court in the case of Preeti Srivastava v. State of M.P.12 under the Indian Medical Council Act, 1956, the Medical 12 (1999) 7 SCC 120 H

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A Council of India is empowered to prescribe, inter alia, standards of post- graduate medication education. It is further observed that in exercise of its powers under Section 20 r/w Section 33 of the Indian Medical Council Act, the MCI has framed the Regulations which govern post- graduate medical education. These Regulations therefore, are binding and the States cannot in the exercise of power under Entry 25 of the B List III, make rules and regulations which are in conflict with or adversely impinge upon the Regulations framed by the Medical Council of India for post-graduate medical education. Heavy reliance is placed upon para 52 and 53 of the said decision; 5.5. That in the case of Modern Dental College and Research C Centre (Supra) this Court has also further observed that exercise of powers by the State Legislature on any matter under Entry 25 of List III is circumscribed by the power under Entry 66 of List I and the latter shall have primacy over the former. Reliance is placed upon paras 102 and 104 of the said decision. D 6.0. Now, so far as submission on behalf of the respective petitioners on conversion of seats of Post-graduate Diploma Course into seats of Post-graduate Degree pursuant to the Notification dated 12.07.2018, it is vehemently submitted that as such when the reference was made to a Larger Bench and even in the original writ petition conversion of seats was not the issue much less any basis for the said reference. It is submitted that therefore, the issue of conversion of seats is a separate and distinct issue and a separate cause of action, which is sought to be clubbed with the present petition. It is submitted that however as submissions have been made on this aspect, it is submitted as under: A. Conversion of seats from post-graduate diploma to degree is optional and not mandatory. No College/ Institution was compelled or forced to opt for such conversion; G B. The provisions for conversion was introduced as over the past years the students, medical colleges, State Government and other stake holders have complained about the scarcity of seats in the post-graduate degree courses which is the most preferred choice of students; H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 625 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

C. To give an option to the States where the requirement A of doctors post-graduate degrees is more to avail the benefit of conversion; D. This provision was not meant to take away or do away with the in-service reservation in post-graduate diploma courses. If any State/Government Medical College B wants more diploma holders then it can retain those seats. 6.1. Now so far as submission on behalf of the respective petitioners and the respective States that on conversion of post-graduate diploma seats into degree seats in-service candidates are deprived of C reservation in diploma courses, it is submitted that as such Government Medical Colleges and other Medical Institutions in the State of Tamil Nadu and other States have consciously and unconditionally chosen to opt for conversion of seats. In fact, this conversion of seats helps the in-service doctors also as there are a greater number of seats in post- graduate degree courses for which they can compete; D

6.2. It is submitted that any reservation for in-service candidates in post-graduate degree course at this stage will give unfair advantage to in-service candidates over other candidates by increasing their seat share in the said degree courses; E 6.3. That the Government Medical Colleges/Private Medical Colleges/Deemed Universities are keen to secure permission from Government of India for post graduate degree courses only, since post graduate diploma courses is not the preferred choice of the students. In any case, the data in the table given below indicates that not all post graduate diploma seats across the Country have not been converted to post-graduate degree course. Many States have not opted for conversion of seats in their medical colleges; 6.4. It is important to take into consideration that if 30% reservation of seats in post-graduate degree courses is reserved for in-service candidates in State quota, then a major chunk of these seats, particularly seats in clinical subjects will be reserved for in-service candidates only; 6.5. Now so far as submission on behalf of in-service candidates that diploma seats for which reservation of in-service candidates is permitted under Regulation 9(VIII) of MCI Regulations, upon H

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A conversion into post-graduate degree seats, will continue to be reserved for in-service candidates, it is submitted that the said contention is devoid of merit and liable to be rejected since once the seats in post- graduate diploma courses are converted to post-graduate degree courses then the nature and colour of the said seat itself changes and it will be governed by Regulation 9 (IV) and not Regulation 9(VIII) of the MCI B Regulations. It is submitted that grievance of the petitioners, if any, as a result of conversion is because of the action of their State Governments in applying for conversion of seats; 6.6. There is clear cut distinction in post-graduate diploma seats and post-graduate degree courses and both serve different purposes. C The conversion of post-graduate diploma seats into post-graduate degree courses is only an enabling provision which gives discretion to the State Government/Medical Institutes to opt for such conversion. It is not in any manner intended to do away with the reservation in post-graduate diploma courses under Regulation 9(VIII) of the MCI Regulations, D 2000; 6.7. Regulation 9(IV) of the MCI Regulations, 2000 serve a large public interest and it is an objective way of determining merit. Regulation 9(IV) of the Regulations based on the objective consideration, rational, reasonableness and balances the competing interest of in-service candidates and non-service (direct) candidates as well as the interest of State to have doctors serving in remote and difficult or rural areas of the State and at the same time also ensuring that there is no compromise of merit; 6.8. It is submitted that therefore, as there is already provision for in-service candidates in Regulation 9 framed by the MCI framed in exercise of powers under Section 20 r/w 33 of the India Medical Council Act 1956 and the MCI Act has been enacted by the Central Government under Entry 66 of list I and even otherwise Entry 25 of List III empowers the Union also to enact the law and therefore, also in view of MCI Regulations, 2000 which were found place before the G Parliament and ascent of the President, State cannot have the power on the same subject under Entry 25 of List III and any law by the State shall be repugnant to Central Act. 7.0. Shri Aman Lekhi, learned ASG appearing on behalf of the Union of India has made the following submissions: H

TAMIL NADU MEDICAL OFFICERS ASSOCIATION & ORS. v. 627 UNION OF INDIA & OTHERS [M. R. SHAH, J.]

7.1. That the decision of this Court in the case of Dinesh Singh A Chauhan (supra) is a correct law. That the said decision is consistent with the Article 246 r/w Entry No. 66 of List I and Entry 25 of List III of 7th schedule of the Constitution; it would not be correct to say, as mentioned in the Referral Order, that the Legislative Entries were not considered in judgment of Dinesh Singh Chauhan (supra). As such B in para 24, this Court has specifically approved the judgment in the case of Preeti Srivastav (supra) and has specifically referred Entry 66 of List I and has clearly held that Central Legislation and Regulations must prevail; that the judgment in the case of Dinesh Singh Chauhan( supra) does not digress from the law laid down by the Constitution Benches. C Apart from the fact that the judgment in the case of R. Chitralekha vs. State of Mysore13, specifically negative the contentions raised by the petitioner, it is to be noted that the said decision was prior to deletion of entry 11 List II and insertion of Entry 25 List III in the 7th Schedule of the Constitution; D 7.2. It is submitted that at the time when the judgment in the case of R. Chitralekha (supra) was passed there was no Entry 25 in List III (which came after the 42nd Amendment) and the two Entries which were relevant for controversy in the said case were Entry 66 of List I which has not been amended till now, and Entry 11 of List II. E The State therefore, had the power under Article 246(3) read with Entry 11 to legislate in respect of ‘education’ subject to Entry 66 of List I. The expression ‘education’ was held in Gujarat University v. Krishna Ranganath Mudholkar14 (para 23) to be wide important and include all matters related to imparting and regulating education. Admittedly, there was no Central Enactment or regulation framed under Entry 66 F of List I which was to be considered by this Hon’ble Court in the case of R. Chitralekha (supra); 7.3. That prior to the deletion of entry 11 of List II and insertion of Entry 25 of List III, the Union Parliament could not deal with the issue of imparting and regulating of the education which vested G exclusively in the State Legislature. The power of State Legislature relating to ‘education’ was taken away only to the extent Entry 11 of List II was made subject to relevant entries in the List I including Entry 13

(1964) 6 SCR 368

14 AIR 1963 SC 703 = 1963 Supp (1) SCR 112 H