Holding

Article 15(4) constitutionally empowers the State to reserve seats in post‑graduate medical courses, and such reservation is not barred by the Indian Medical Council Act or by the nature of the admission process.

Summary

The State of Bihar issued a prospectus for the 1992 Post‑Graduate Medical Admission Test reserving 50% of seats for socially and educationally backward classes, Scheduled Castes, Scheduled Tribes and women. The appellants challenged this reservation before the Patna High Court, which dismissed their writ petitions, leading them to appeal to the Supreme Court. The Court examined whether Article 15(4) of the Constitution permits reservations in educational institutions, particularly in post‑graduate medical courses, and whether such reservations are anti‑meritarian or detrimental to society. It also considered whether admission to these courses constitutes an appointment subject to the Indra Sabhney ruling and whether the Indian Medical Council Act, 1956 and its regulations can override the State's constitutional power. The Court held that Article 15(4) does authorize reservations in educational institutions, that admission to post‑graduate courses is not an appointment, that reservations are not inherently anti‑meritarian, and that the Indian Medical Council Act does not regulate admission, leaving the power with the State. Consequently, the appeals were dismissed.

Issues considered

Whether Article 15(4) of the Constitution permits reservation of seats in post‑graduate medical courses.
Whether reservation in such courses is anti‑meritarian or detrimental to the interests of society.
Whether admission to post‑graduate medical courses is equivalent to an appointment or promotion, thereby falling within the scope of Indra Sabhney.
Whether the Indian Medical Council Act, 1956 and its regulations can pre‑empt the State's power to provide reservation.
Whether the State has legislative competence under Entry 25 List III versus Entry 66 List I to regulate admission to medical courses.
Whether a student can avail reservation benefits at more than one stage of his educational career.

Legislation cited

Constitution of Indias. Article 14, s. Article 15(4), s. Article 16(4), s. Article 29(2), s. Article 335
Indian Medical Council Act, 1956s. Section 10-A, s. Section 10-B, s. Section 10-C, s. Section 16, s. Section 17, s. Section 18, s. Section 19, s. Section 19-A, s. Section 20, s. Section 20-A, s. Section 25, s. Section 26, s. Section 33

Subjects

reservationArticle 15(4)post‑graduate medical admissionIndian Medical Council Actconstitutional laweducationmeritstate legislative competenceEntry 25 List IIIEntry 66 List Idelegated legislation

Judgment

A.IA Y KUMAR SINGH AND ORS. A
v.
STATE OF BIHAR AND ORS.

MARCH l 7, 1994

[S.C. AGRAWAL, B.P. JEEVAN REDDY AND B
M.K. MUKHERJEE, J.1.J

·Co11stitutio11 of I11dia-A11ic/e 15( 4)-Admission to post-graduate medi-
cal courses--Rese1vatio11--Co11stitutio11ality of-State of Bihar rese1vi11g 50%
seats for socially aiid educationally backward classes-Held, words "any spe- C
cial provisio" i11 A1ticle 15(4) of wide amplinide and pennits rese1vatio11 of
scats in educational institutions-Reservations not anti-nieritarian-No rule
under A1ticle 15(4) that a saident ca1111ot be given the benefit of reseivatio11
niore than once in an educational career-Adn1ission to post-graduate n1edi-
cal course! held, cannot be equated with appoi11tn1ent to post.
D
Co11stitutio11 of 111dia-Seve11th Schedul~E11t1y 66 List I and Ent1y 25
List III--Doct1i11e of Pith and Substanc~Regulation of admission to medi-
cal courses, held, integral to power in Ent1y 25 List II and incidental to the
power in Entry 66 List I.
E
Indian Medical Council Act, 1956--Admission to graduate or post-
graduate niedical courses-Held, Act does not e1npower Council to presc1ibe
qualifications or conditions for adniission to such courses-Regulation niade
by Medical Council in 1971 on selection of students, held, is in the nanire of
advice and not binding direction-In any case, Act does not purpo!t to
regulate ad111issions to these courses-Field for the State to regulate. F

Administrative Law : Delegated Legislation-Regulations-Held, can-
not travel beyond the Act-ReRlllations nu1sf be read consistent with the
constitutional poiver 101dt:r Article 15(.J.)--Constinllion of India, A11icle
15(4)-lndian Medical Council Act, 1956, S.33
G
The State of Bihar issued a prospectu; relating to Post-Graduate
Medical Admission Test 1992. It provided, inter alia, reservation for socialM
ly and educationally back-ward classes, scheduled castes, scheduled tribes
and women to an extent of 50%. The appellant's challenge to the resena~
tion in two m-it petitions before the High Court was negatived. H
57
58 SUPREME COURT REPORTS [1994] 3 S.C.R.

A In the appeal before this Court, it was contended that Article 15(4)
does not permit reservation in educational institutions; that reservation is
detrimental to the interests of society; that admission to the course is akin
to appointment to a post, with a stipend, and that it is a promotional post
for doctors who have completed MBBS; and that after Indra Sawhney v.
Union of India, (1992) 6 JT 273 there can be no reservations in the matter
B of promotion, that the Regulations made by the Indian Medical Council
prohibit reservation in post-graduate medical courses.

For the Indian Medical Council, it was argued that the Council, born
of an Act of Parliament referrable to Entry 25 List III and Entry 66 of List
C I, in discharge of its duty had decided that there should be no reservation
of any kind. By virtue of Entry 66, List I, it was contended, the States are
denuded of.all and every power to determine and coordinate the standards
of higher education. Even if Parliament does not regulate the admission
to these courses, the States have no power, it was urged, to provide
therefor.
D
Dismissing the appeals, this Court

HELD : 1. It is true that clasue (4) of Article 15 does not expressly
authorise providing of reservations in educational institutions but it is too
E late in the day to question this power. The words "any special provision"
are of wide amplitude and do certainly take in a provision reserving certain
number of seats in educational institutions. (63-B-C]

M.R. Balaji & Ors. v. State of Mysore, [1963) Suppl. SCR 439, referred
to.
F
Indra Sawhney v. Union of India, (1992) 6 JT 273, applied.

2. The assumption that reservations are anti-meritarian is without
any basis. Reservation is provided only at the stage of entry and not at the
G stage of exit. In the matter of passing of the examination, no concession is
shown to members of reserved classes. A student admitted in a reserved
category has to acquire the same proficiency as any other candidate while
passing the examination. This circumstance is a complete answer to the
argument of'less merit'. [63-G-H; 64E-F)

H Indra Sawhney v. Union of India, (1992) 6 JT 273, followed.
ATAY KUMAR v. STATEOFBIHAR 59

Chitralekha & Ors. v.State of Mysore, (1964] 6 SCR 368; Janaki Prasad A
Pmimoo v. Staie of Jammu & Kashmir, (1973] 3 SCR 236 and M.R. Balaji
& 01>. v. State. of Mysore, (1963] Suppl. SCR 439, referred to.

3.1. The assumption that a student seeking benefit of reservation at
the stage of admission to post-graduate medical course has already en-
joyed the benefit of reservation once previously is not necessarily true. B
Moreover there is no rule under Article 15(4) that a student cannot be
given the benefit of reservation at more than one stage during the course
of his educational career. Where to draw the line is not a matter of law but
a matter of policy for the State to be evolved keeping in view the larger
interests of the society and various other relevant factors. Unless the line C
drawn by the State is found to be unsustainable under the relevant Article,
the Court cannot interfere. (65-C-E]

3.2. In Indra Sawhney, the Court, concerned with Article 16(4), was
speaking of posts in research and development organisations, in
specialities and super specialities in medicine, engineering and such other D
courses, and not admission to specialities and super specialities. Morever,
MS or MD are not super specialities. In any event, this Court did not say
that they were not permissible; the government was asked to consider the
advisability of providing for reservations in those posts having regard to
the nature and level of those posts. [66-F-H] E
Indra Sawhney v. Union of India, (1992) 6 JT 273, distinguished and
explained.

4. The argument of deteriment to the interests of society is unaccep-
table. For one, no one will be passed unless he acquires the requisite level
F
of proficiency. Secondly, academic performance is no guarantee of efficien-
cy in practice as has been seen both in law and. medicine. (67-A-B]

Dr. fagdish Saran v. Union of India, (1980] 2 SCC 768 and Pradcep
Ja1i1 v. Union of India, [1984] 3 SCC 654, distinguished. On the question
of reservation and admission on merit. G
5. Admission to post-graduate medical course cannot be equated to
appointment to a post and certainly not to an appointment by promotion. It
is immaterial whether a stipend is paid to post- graduate students. [70-B]

6.1. The Indian Medical Council Act, 1956 does not purport to deal H
60 SUPREME COURT REPORTS [1994J3S.C.R.

A with, regulate or provide, for adntission to graduate or post-graduate
medical courses. Indeed insofar as post-graduate courses are concerned,
the po~'er of the Indian Medical Council to "prescribe the n1inimum
standards of medical education" is only advisory in nature and not of a
binding character. [p. 74-D-E]

B 6.2. The Regulations made under the Act cannot also provide for or
regulate admission to post-graduate courses in any event. [74-F]

7. The power conferred on the State under Article 15(4) is a
constitutional power. It cannot be over-ridden or superseded by a Regula-
c tion made by the Indian Medical Council under the Act. The Regulation
which provides that post-graduate students shall be selected strictly on
merit must be read consistent with Article 15(4) and if so read, it means
that the students shall be admitted to post-graduate training strictly on
the basis of merit in each of the relevant classes or categories.
[pp. 74-G-H; 75-A]
D
8.1. The power to regulate admission to the courses of study in
medicine is traceable to Entry 25 in List III. The States, which establish
and maintain these institutions have the power to regulate all aspects and
affairs of the institutions except to the extent provided for by Entries 63
to 66 of List I. While regulation of admission to these medical courses
E may be incidental to the power contained under Entry 66 List I, it is integral
to the power contained in Entry 25 List III. The State which has estab-
lished and is maintaining these institutions out of public funds must be
held to possess the power to regulate the admission policy consistent with
Article 14. Such power is an integral component of the power to maintain
and administer these institutions. [76-A-E]
F
State of Madhya Pradesh v. Nivediya Jain, [1982] 1 SCR 759, followed.

8.2. Entry 66 List I ought not to be construed in isolation. It must
be read along with Entry 25 in List III. The subject matter of education
G including medical education is thus in the concurrent list. Only a portion
of it insofar as it falls under Entry 63 to 66 of List I has been scooped
out of it and placed in List I. This only means that the field occupied by
Entries 63 to 66 of List I should be properiy delineated to find out how
much is taken away out of Entry 25. Whenever a question arises whether
a particular legislation made by the State with reference to Entry 25
H impinges upon the aforesaid Entries in List I, one has to apply the
AJAY KUMAR v. STATEOFB!HAR [JEEVAN REDDY.I.] 61

doctrine of pith and substance to determine whether the Act impinges A
upon the field reserved to the Parliament. [77-C-E]

lshwmi Khaitan Sugar Mills Pvt. Ltd. v. State of U.P., (1980] 3 SCR
331 followed.

Calcutta Gas Co. v. State of West Bengal, AIR (1962) SC 1044, applied. B
8.3. The submission that ir the principle of Nivedita Jain be applied
uniformly, it would affect the power of the Parliament under Entry 66 List
I, rriust be seen in context. The exceptional step of removing the minimum
required marks ·.which was considered in Nivedita Jain - was an exercise
of the government's power of relaxation in a peculiar situation and was C
not done on a permanent basis. [pp. 76-G-H; 77-A-C]

State of M.P. v. Nivedita Jain, [1982] 1 SCR 759 and Gujarat Univer-
sity, Ahmedabad v. Kdshna Ranganath Mudholkar, [1963] Supp. 1SCR112,
explained.
D
9. The Indian Medical Council Act, 1956 does not purport to regulate
the admissions or admission policy to post-graduate medical courses. The
field is thus left free to be regulated by the State. The State can make a
law or an executive rule; in this case it has chosen to make an executive
rule. [p. 79-F-GJ E
10. The uniform eligibility criteria was reduced from 50% and 40%
for general candidates and candidates of 'other backward classes' to 40%
and 30% respectively. This small distinction in the eligibility criteria can,
by no stretch of imagination, be said to impinge upon the determination
or coordination of standards in institutions of higher learning. F
[pp. 79-G-H; 80-A]
CIVIL APPELLATE JURISDICTION : Civil Appal Nos. 141 and
142 of 1994.
•
From the Judgment and Order dated 12.2.93 & 23.2.93 of the Patna G
High Court in C.W.J.C. Nowa. 5641/92 & 1499 of 1993.

Vikas Singh, Yunus Halik, L.R. Singh and Gopal Singh for the
Appellants.

R.K. Garg, V.A. Bobde. Kumar Rajesh Singh and B.B. Singh for the H
62 SUPREME COURT REPORTS [1994] 3 S.C.R.

A Respondents.
H.N. Salve, Navin Prakash and Ms. Meenakshi for the M.C.I.

The .T udgment of the Court was delivered by

B B.P. JEEVAN REDDY, J. Permissibility of providing reservations
under clause (4) of Article 15 of the Constitution of India in post-graduate
medical courses is the issue raised in these appeals. The State of Bihar
issued a prospectus relating to Post-Graduate Medical. Admission Test,
1992 providing inter a/ia reservation in favour of socially and educationally
backward classes, Scheduled Castes, Scheduled Tribes and women. The
C percentages reserved are Scheduled Casted-14%, Scheduled Tribes- 10%,
extremely backward classes-14%, backward classes-9% and ladies-3%. The
appellants questioned the aforesaid provision for reservation by way of two
writ petitions in the Patna High Court. The writ petitions were dismissed
whereupon they have approached this court by way of these appeals. The
D Indian Medical Council has filed an affidavit in these proceedings putting
forward its point of view in the matter. It has supported the appellants'
stand.

Sri Vikas Singh, learned counsel for the appellants urged the follow-
ing contentions :
E
(1) Article 15(4) does not speak of nor does it permit reservation of
seats in educational institutions. While certain preferences and concessions
can be given, reservation of seats is outside the purview of Article 15(4).

(2) Even if Article 15(4) permits reservation of seats, such reserva-
F tion must contribute to the advancement of the society and should not be
detrimental to the interests of society. Reserving as much as 50% seats in
post-graduate medical courses is certainly detrimental to the interests of
the society. The society would be saddled with less competent and less
effecient doctors to the extent of half the number available.
G (3) Inasmuch as substantial amount is paid by way of stipend to
post-graduate students, admission to such course is in effect an appoint-
ment to a post. The post-graduate course in medicine is thus a promotional
post for doctors who have completed M.B.B.S. course. It has been held by
this Court in Indra Sawhney v. Union of India, (1992) 6 JT 273, that no
H reservations are permissible in the matter of promotion.
AfAYKUMAR t'.STATEOFBIHAR[JEEVANREDDyJ.] 63

(4) The Regulations made by the Indian Medical Council prohibit A
reservation of seats in post-graduate medical courses on any ground \Vhat-
soever. The Regulations being statutory prevail over the executive orders
made by the Governemnt of Bihar in exercise of its executive po\ver.

We shall proceed to deal with the contentions in the order they are
urged.
B

It is true that clause (4) of Article 15 does not expressly authorise
providing of reservations in educational institution but it is too late in the
day to question this power. Article 15(4) says that nothing in Article 15 or
in clause (2) of Article 29 shall prevent the State from making "any special c
provision" for the advancement of classes mentioned therein. The words
"any special provision" are of wide amplitude and do certainly take in a
provision reserving certain :number of seats in educational institutions.
Indeed, the first major case arising under Article 15 before this court [MR.
Balaji & Ors. v. State of Mysore, [1963] Suppl. S.C.R. 439] was one relating D
to reservation of seats in educational institutions. At no time was it ques-
tioned that such a course was not permissible, evidently in view of the width
of the words "any special provision" occurring in Article 15(4). In this
connections, we may refer to the holding in Indra Sawhney v. Union of India
with respect to a similar argument vis-a-vis Article 16(1). It was argued for
the petitioners that Article 16(1) - which guarantees equality of opportunity E
to all citizens in matters relating to employment - docs not warrant provid-
ing of reservations. The contention was rejected. It was held that just as
Article 14 permits classification so does Article 16(1), which is but a facet
of rule of equality in Article 14. For bringing about and ensuring equality,
it was held, appropriate measures including reservations can be adopted. F
what kind of special provision should be made in favour of a particular
class, it was observed, is a matter for the State to decide having tegard to
the facts and circumstances of a given situation. For the above reasons, the
first contention of Sri Singh is rejected.

The second submission of Sri Singh is premised on the assumption G
that reservati6ns are basically anti-rneritarian. We are afraid, this assump-
tion is without any basis. It is true that in Chitralekaha & Ors. v. State of
Mysore, [1964] 6 S.C.R. 368 and Janki Prasad Parimoo v. State of Jammu
& Kashmir, [1973] 3 S.C.R. 236, as also in Balaji it seems to have been
assumed that reservation necessarily implies selection of a less meritorious H
I
).

64 SUPREME COURT REPORTS [1994] 3 S.C.R.
~
A persons but this aspect was explained in the majority judgment in Indra
Sawhney in the following words :

".......... the relevance and significance of merit at the stage of initial
recruitment cannot be ignored. It cannot also be ignored that the
very idea of reservation implies selection of a less meritorious
B person. At the same time, we recognise that this much cost has to
be paid, if the constitutional promise of social justice ;s to be
redeemed. We also firmly believe that given an opportunity, firmly
believe that given an opportunity, members of these classes are
bound to overcome their initial disadvantages and would compete
c with - and may, in some cases, excel - members of open competition
candidates. It is undeniable that nature has endowed merit upon
members of backward classes as much as it has endowed merit
upon members of other classes and that what is required is an
opportunity to prove it. It may not, therefore, be said that reser-
vations are anti-meritarian. Merit there is even among the reserved
D candidates and the small difference, that may be allowed at the
stage of initial recruitment is bound to disappear in course of time.
These members too will compete with and improve their efficiency
alongwith others."

E The said observations apply equally under Article 15(4)-only read •
'admission' for 'recruitment'. It is necessary to reiterate that reservation is
provided only at the stage of entry and not at the stage of exit. In the matter
of passing of the examination, no concession is shown to members of
reserved classes. The pass marks are uniform for all. This means that even
F if a less meritorious student is admitted under a reserved category, he has
to improve his standard and has to acquire the same proficiency as any
other candidate (including the general candidates) while passing the ex-
amination. -This circumstance is a comptete answer to the argument of 'less
merit'. No empirical study has been brought to our notice to establish that
candidates admitted under reserved quotas generally lag behind in the
G matter of marks or proficiency in the final examinations. They may enter
· under different categories but they come out as one single class.

It is submitted by Sri Singh that candidates seeking admission to
post-graduate medical courses have already enjoyed the benefit of reser- "
H vation at the time of their adinission to M.B.B.S. which course is spread
AJAY KUMAR v. STATE OF BIHAR [JEEV AN REDDY J.] 65

over for five years or more. During this period, they are supposed to A
i1nprove their efficiency and merit and compete with other candidates at
the time of admission to post- graduate medical courses. The provision for
reservation at the stage of admission to post ~graduate course again, says
the counsel, is uncalled for and contrary to publie interest. Firstly, the
assumption on the basis of which this argument is addressed is itself B
untenable. A candidate who is seeking reservation at the stage of admission
tu post-graduate course may not have availed of the benefit of reservation
at the stage of admission to M.B.B.S.; he could as well have been admitted
on his own merit in the general quota (open competition quota}; but
because the competition at the level of post-graduate medical courses is
extermely acute, he may have to seek the benefit of reservation. Therefore,
c
the assumption that a student seeking benefit of reservation at the stage of
admission to post-graduate medical course has already enjoyed the benefit
of reservation once previously is not necessarily true. Secondly, there is no
rule under Article 15(4} that a student cannot be given the benefit of
reservation at more than one stage during the course of his educational D
career. Where to draw the line is not a matter of law but a matter of policy

- for the State to be evolved keeping in view the larger interests of the society
and various other relevant factors. LTnless the line drawn by the State is
found to be unsustainable under the- relevant Article, the court cannot
interfere. Sri Singh then brought to our notice certain observations in the E
majority judgment in Indra Saivhney to say that reservations in the matter
of post graduate and research courses is impermissible. The observations
relied upon are in paragraphs 860 and 861. They read thus :

11
Whilc on Article 335, we are of the opinion that there arc certain F
services and positions where either on account of the nature of
duties attached to them or the level (in the hierarchy} at which
they obtain, merit as explained hcrcinabove, alone counts. In such
situations, it may not be advisable to provide for reservations. For
example, technical posts in research and development organisa-
tions/departments/institutions in specialities and super-specialities G
in medicine, engineering and other such courses in physical science
and mathematics, in defence services and in the establishments
connected there\vith. Sirnilarly, in the case of posts at the higher
echelons, e.g., Professors (in Education), Pilots in Indian Airlines
and Air India, Scientists and Technicians in nuclear and space H
I
;

66 SUPREME COURT REPORTS [1994] 3 S.C.R.

A application, provision for reservation would not be advisable.

As a matter of fact, the impugned Memorandum dated 13tli
August, 1990 applies the rule of reservation to "civil posts and
services under !he Government of India" only, which means that
B defence forces are excluded from the operation of the rule of
reservation though it may yet apply to civil posts in defence
services. Be that as it may, we are of he opinion that in certain
services and in respect of certain posts, application of the rule of
reservation may not be advisable for the reason indicated herein-
before. Some of them are: (1) Defence Services including all
c technical posts therein but excluding civil posts. (2) All technical
posts in establishments engaged in production of defence equip-
ment; (3) Teaching posts of Professors - and above, if any; (4)
Posts in super-specialities in Medicine, engineering and other
scientific and technical subjects; (5) Posts of pilots (and co-pilots)
D in Indian Airline3 and Air India. The list given above is merely
illustrative and not exhaustive. It is for the Government of India
to consider and specify the service and posts to which the Rule of
reservation shall not apply but on that account the implementation
of the impugned Office Memorandum dated 13th August, 1990
cannot be stayed or withheld."
E

It may be noticed that the observations were made with respect to
Article 16(4) which provision was held qualified by Article 335 which
requires that while taking into consideration the claims of the Scheduled
F Castes and Scheduled Tribes the State shall keep in mind the requirement
of maintenance of efficiency of administration. The said consideration was
held relevant even while providing for reservation in favour of other
backward classes. While making the above observations, the court, con-
cerned with Art. 16(4), was speaking of posts in research and development
organisations, in specialities and super-specialities in medicines, engineer-
G ing and such other courses. The court was not speaking of adn1ission to
specialities and super-specialities. Moreover, M.S. or M.D. are not super-
specialities. In any event, this court did not say that they were not permis-
sible; the government was asked to consider the advisability of providing
fur reservations in those posts having regard to the nature and level of
H those posts.
1.

AJAY KUMAR v. STATEOFBIHAR[JEEVANREDDY,J.] 67

We. are unable to appreciate the argument of detriment to the A
interests of society. As we have said hereinbefore, there is no distinction
in the matter of passing the examination. No one will be passed unless he
acquires the requisite level of proficiency. Secondly, the academic perfor-
mance is no guarantee of efficiency in practice. We have seen both in law
and medicine that persons with brilliant academic record do not succeed
in practice while _students who were supposed to be less intelligent come
B
out successful in profession/practice. It is, therefore, wrong to presume that
a doctor with good academic record is bound to prove a better doctor in
practice. It may happen or may not.

Sri Vikas Singh brought to our notice the decisions of this Court in C
Dr. Jagdish Saran & Ors. v. Union of India, [1980] 2 S.C.C. 768 and Pradeep
Jain v. Union of India, [1984] 3 S.C.C. 654, in support of his submission.
Jagdish Saran was not a case arising under Article 15(4). It was a case
where 70% of the seats in the post-graduate medical course in the Delhi
University were reserved in favour of Delhi University graduates keeping D
the remaining 30% open to all including the graduates of Delhi University.
The validity of the said provision was questioned and in that connection
certain observations \Vere made by this court which read :

But it must b~ remembered that exceptions cannot overrule the
11

rule itself by running riot or by making reservations as a matter of E
course, in every university and every course .. For instance, you
cannot wholly exclude meritorious candidates as that will promote
sub-srnndard candidates and bring about a fall in medical com-
petence, injurious, in the long run, to the very region. It is no
blessing lo inflict quacks and medical medgets on people by F
wholesale sacrifice of talent at the threshold. Nor can the very best
be rejected from admission because that will be a national loss and
the interests of no region can be higher than those of the nation.
So, \vithin these limil<llion:-;, \.Vilhout going into excesses, there is
room for play of the State's policy choices.
G
Fh)\ving fro1n the same stream of equalism is another limitation.
The basic medical needs of a region or the preferential push
justified for a handicapped group cannot prevail in the same
measure at the highest scales of speciality where the best skill or
talent, must be handpicked by selecting according to capability. At H
)

68 SUPREME COURT REPORTS [1994] 3 S.C.R.

A the level of Ph.cl., M.D., or levels of higher proficiency, where
international measure of talent is made, where losing one great
scientist or technologist in-the-making is a national loss, the con-
siderations we have expanded upon as important lose their poten-
cy. Here equality, measured by watching excellence, has more
meaning and cannot be diluted much without grave risk. The
B Indian Medical Council has rightly emphasised that playing with
merit for pampering local feeling will boomerang. Midgetry, where
su1nmitry is the desideratum, is a dangerous art. "\'/v1e may here
extract the Indian ~1edical Ci)uncil's reco111n1en<lation, \vhich rnay
not be the last word in social wisdom but is worthy of considera-
c tion:

Students for post-graduate training should be selected strictly
on merit judged on the basis of academic record in the under-
graduate course. All selection for post-graduates studies should be
conducted by the unvcrsities. 11
D
Having so stated, the court hastened to add the following clarification
in paragraph 25 :

"We hasten to keep aloof from reservations for backward classes
and Scheduled Castes and Tribes because the Constitution has
E
assigned a special place for that factor and they mirror problems
of inherited injustices demanding social surgery which if applied
thoughtlessly in other situations may be a remedy which accen-
luati::s the n1ali.1dy. 11

F Indeed, this aspccl has also been advericd in the first half of para-
graph 2ll Sri Singh also rcJied. upon certain similar observations in para-
graphs 36, 39, 40 and 42, which we <lo not think necessary to re-produce
for the reason that they \Vere all made in a different context.

So for as Pnuieep Jain is con('~rned, the observations relied upon are
·G in paragraph 22, which read thus:

"So nn1ch for adn1ission to the IvlBBS course, but different con-
siderations must prevail ¥.'hen \Ve come to consider the question
of reservation based an residence requirement within the State or
H on institutional preference for admission to the post-graduate
AJAY KUMAR v. STATEOFBIHAR [JEEVAN REDDY,J.] 69

courses, such as, MD, MS and the like. There we cannot allow A
excellence to be compromised by any other consideralions because
that would be detrimental to the interest of the nation. It was rightly
pointed out by Krishna Iyer, J. in!agdish Saran case, and we wholly
endorse what he has said:"

After quoting the observations in Jagdish Saran, the learned Judges B
referred to the recommendation of the Indian Medical Council that in the
matter of admission to post-graduate courses merit alone should be the
basis. The other observations relied upon are in the very same paragraph
at pages 692-693. They read :

11
We are therefore of the view that so for as admissions to post-
c
graduate courses, such as MS, MD and the like are concerned, it
would be eminently desirable not to provide for any reservation
based on residence requirement within the State or on institutional
preference. But, having regard to broaden considerations of
equality of opportunity and institutional continuity in education D
which has its own importance and value, we would direct that
though rc.>idence requirement within the State shall not be a
ground for rL~crvalion in admissions to post-graduate courses, a
certain percentage of seats may in the present circumstances, be
reserved on the ba.sis of institutional preference ........... 11 E

It is again necessary to nolice the context in which the said observaw
tions \\'ere 1nade. ln Pradl!c'p Jain, the court \Vas concerned with wholesale
reservation mad\.'. hy :..ome of the St 3! L: gnvern111ents on the basis of domicile
or residence requirernent \Vithin the State and admitting only those stuw
dents to their 1nedical colleges \vhn satisfied the said requirement. With a F
view to extend the rule of equali1y, the courl directed that certain percentw
age of seats both in M.B.B.S. an<l post-graduate medical courses should be
filled on th.: basis of All-India rntrcnce test and that students to this
res<.:rved quota should not b<.: called upon to satisfy the rule of residence
or domicile, as the case may be. 1'hi.i- \\'as again not a case arising under G
Article 15(4). The observations made cannot be torn from their context
and rea<l as applicable to the situation obtaining under Article 15(4). For
the above reasons, the second contention of Sri Vikas Singh as also
rejected.

We sec absolutely no substance in the third submission of Sri Singh. H
70 SUPRH!E COURT REPORTS fl994j 3 S.C.R.

A The argument taxes one's credulity. We are totally unable lo appreciate
how can it ·be said that admission to post-graduate medical course is a
pron1otional po.st just because such candidate 1nust nec~ssarily pass
M.B.B.S. examination before becoming eligible for admission to post-
graduate medical course or for .the reason that son1e stipend - it is in1-
material whether Rs. 1,000 or Rs. 3,000 p.m. - is paid to post-graduate
B students, Admission to such coursl'. cannot be equated to appointn1ent to
a post and certainly not to an appointment by promotion. The argument is
accordingly rejected.

Now, \VC come to the more important submission which was sup-
c ported and elaborated by Sri Harish Salve, learned counsel appearing for
the Indian Medical Council. The argument runs thus: tho Indian Medical
Council Act, 1956 is an Act made by the Parliament with reference to Entry
26 of List-IJI (Legal, Medical and other profession) as well as Entry 66 of
List-I which empowers the Parlian1ent to make laws with respect to 11 coor-
D <lination and determination of standardS in institutions for higher education
or research and scientific and technical institutions 11 • It is the function of
the Indian Medical Council to determine the standards of higher education
in various institutions in the country and to coordinate the same. In
discharge of the duty cast upon it to determine and coordinate the stand-
E ards of education, the council has decided that there should be no reser-
vation of any kind in the matter of admission to post-graduate medical
courses and that admissions should be made solely and exclusively on the
basis of merit and merit alone. The Regulations made by the Indian
I\1edical Council with the previous sanction of the Central Government say
.;u. The Regulations being a species of delegated legislation bind all the
F in~t1tutions i1nparting 1ncdical education. ln the face of these Regulation,
it is nut open to the State of Bihar to provide for such reservation undt.:r
an executive order. Sri Salve hrought to our notice the Regulations made
by the Indian Medical Council under Section 33 nf the Act \Vhich arc found
printed in the publication of the Medical Council of India under the titlt:
G "Reco1nn1cndations on post-graduate medical education (adopted by the
Medical Council of India in February, 1971-rcvised upto January, 1988)".
The publication is of the year 1989. Under the heading "criteria for the
selection of candidates", clause (a) states thus: "(a) students for p1st-
gr"duate training should be selected strictly on merit judged on the basis
H of academic record in the under-graduate course. All selection for post-
AJAY KUMAR v. STATEOFBIHAR[JEEVAN REDDY,J.] 71

graduate studies should be conducted by the Universities." Under the A
heading "evaluation of merit'\ it is stated :

"The Post-graduate Committee was of the opinion that in order to
determine the merit of a candidate for admission to post-graduate
medical courses, (i) his performance at the M.B.B.S. examinations,
(ii) his performance during the course of internship and houseman-
B
ship for which a daily assessment chart be maintained and (iii) the
report of the teachers which is to be submitted periodically may
be considered.

Alternatively the authorities concerned may conduct competitive c
entrance examination to determine the merit of a candidate for
11
admission to post.graduate medical courses.

Sri Salve also brought to our notice Recommendations made by the
Medical Council of India to the Central Government for according its D
approval to enable the Medical Council of India to publish them as
Regulations under Section 33 of the Act. These recommendations are
contained in another publication of the Medical Council of India under the
heading "recommendations of post-graduate medical education (adopted
by the Medical Council of India in January, 1992 - revised upto April,
1993)." Under the heading "(iv) selection of students and period of training" E
clause (A) relates to "selection of post-graduate students". Under Clause
(A), it is stated: "students for post-graduate training shall be selected
strictly on the basis of their academic merit. For determining the academic
merit, the universit;•/institution may adopt any one of the following proce-
dures both for degree and diploma courses ......... ". A note is appended to F
1
the said clause \vhich says inter alia, ' there shall be no reservation for
admission to post-graduate medical degree/diploma course under any
category". The said publication also contains a reference to the letter dated

-
20/24th August, 1987 from the Central Gm·ernment, Ministry of Health and
F.W. forwarding therewith a copy of the extract of the minutes of the
1neeting of the cum1nittcc of Vice~chancellors of the central universities G
held on January 19, 1.985 received from the Ministry of Human Resources
Development (Department of Education) regarding reservation of seats for
students belonging to Scheduled Castes/Scheduled Tribes in M.D/M.S.
courses for comments of the council. It is stated that "the post-graduate
committee reiterated its earlier decision not to have reservation to students H
j
72 SUPREME COURT REPORTS [1994[ 3 S.C.R.

A belonging to Scheduled Castes/Scheduled Tribes in post-graduate medical
1 1
courscs' No such 'carlicr decision\ hcnvever, has been brought to our
•

notice. Sri Salve stated, after obtaining instructions from the Indian Medi-
cal Council, that the rccom1nendations made in January, 1992 (revised upto
April, 1993) have not yet been approved by the Central Government and
are not published as Regulations under Section 33 of the Act.
B
The Indian Medical Council Act, 1956 was enacted by Parliament to
prl)vide for the re-constitution of the Medical Council of India, n1CJin-
tenance of a medical register for India and for matters connected there-
with. Section 11(1) says that "the medical qualifications granted by any
C University or medical institution in India which are included in the First
Schedule shall be recognised medical qualifications for the purposes of this
Act." Section 12(1) says that the medical qualifications granted by medical
institutions outside India which are included in the Second Schedule shall
also be medical qualifications for the purposes of the Act. Section 13 says
D that the medical qualifications granted by certain other medical institutions
in India not included in the First Schedule but included in Third Schedule
shall as well be recognised medical qualifications for the purposes of the
Act. Section 15 provides that the medical qualifications included in the
Schedules to the Act shall be sufficient qualification for enrolment on any
State medical register. It further declares that save as provided in Section
E 25, no person other than a medical practitioner enrolled on a State medical
register shall hold office as physician or surgeon under the Government or
under any other institution maintained by a local or other authority. He
shall also not be entitled to practice medicine in any State nor shall he be
entitled to issue any certificate or give evidence in any matter relating to
F medicine. Any person acting in contravention of the said provision is made
liable for punishment of imprisonment for a term which may extend to one
year or with fine or both. Section 16 empowers the Indian Medical Council
to call upon every university and medical institution of India which grants
a recognised medical qualification to furnish such information with respect
to the 11 courses of study and examinations to be undertaken in order to
G obtain such qualification, as to the ages at which such courses of study and
examinations are required to be undergone and such qualificatiO~on
ferred and generally as to the requisites for obtaining such qualification".
-
Section 17 empowers the executive committee of the Indian Medical
Council to appoint such number of medical inspectors as it may deem
H necessary to inspect any medical institution, college, hospital or other
AJAY KUMAR v. STATEOFBIHAR [JEEVAN REDDY.I.] 73

institution \Vhere medical education is imparted and to altcnd any examina- A
tion held by it. Section 18 confers upon the council the power to appoint
visitors to inspect such institution.s. Section 19 empowers the council to
\Vrithdraw recognition in case "the courses of study and examination to be
undergone in, or the proficiency required from the candidates at any
cxa1nination held by any university or medical institution" do not conform
to the prescribed standards. Recognition can also be withdra\vn \Vhere "the
B
staff, cquip1nent, accommodation, training and other facilities or instruc-
tion and training11 prnvided in such institution do not conform to the
prescribed ~tandard:~. Section 19-A ernpowcrs the council to pn;~cribe 1'the
minimun1 standards of education required for granting recognised medical
qualifications (other than post-graduate medical qualification) by univer- c
sities or medical institutions in lndia11 • Section 20 empowers the council to
prescribe the standards of post-graduate medical education "for the
guidance of universities" and to 11 advise universities in the matter of secur-
ing uniform standards for Post-Graduate Medical Eduction throughout
India". For this purpose, the council can constitute a post-graduate medical D
education committee. Section 20-A empowers the council to prescribe the
standards of professional conduct and etiquette and code of ethics for
medical practitioners and to ensure their observance. Section 21 requires
the council to maintain the Indian medical register. Sections 22 to 28 deal
with matters relating to the said register. Section 29 obliges the council to
furnish such reports, accounts and other information as the Central E
Government. may require. Section 32 empowers the Central Government
lo make rules to carry out the purposes of the Act whereas Section 33
~n1po\vers the council to make Regulations, with the previous approval of
the Central Government, generally to carry out the purposes of the Act.
Section 33 also specifies the several matters which can be provided by F
Regulatiuns. The matters so specified include "G) the courses and period
of study and of practical training lo be undertaken, the subjects of examina-
tion and the standards of proficiency therein to be obtained, in Universities
or n1Lrlical institutions for gran1 of recognised medical qualifications. 11 By
Indian Medical Council (Amendment) Act, 1993, brought into force with
effect from August 27. 1992, Sections 10-A, 10-B and 10-C were added. G
These sections deal \Vith establish1nent of new medical colleges or opening
of new or higher courses of ~tudy or training in existing medical institutions.

A review of the provisions of the Act clearly shows that among other
things, the Act is concerned with the detern1ination and coordination of H
i
)

74 SUPREME COURT REPORTS [1994] 3 S.C.R.

A standards of educati9n and training in medical institutions. Sections 16) 17,
18 and 19 all speak of "the courses of study and examinations to be
undergone" to obtain the recognised medical qualification. They do not
speak of admission to such courses. Section 19-A expressly empowers the
council to '1prescribe the minimum standards of medical education 11 re-
quired for granting under-graduate medical qualification. So does Section
B 20 empower the council to prescribe standards of post-graduate medical
education" but "for the guidance of universities" only. It further says that
the councll 11111ay also advise universities in the matter of securing uniform
standards for post-graduate medical education throughout India". (The
distinction between the language of Section 19-A and Section 20 is also a
c relevant factor, as would be explained later.) Clause (j) of Section 33
particularises the subjects with respect to which Regulations can be made
by the council. It speaks of the courses and period of study and the
practical training to be undergone by the students, the subjects of examina-
tion which they must pass and the standards of proficiency they must attain
to obtain the recognised medical qualifications but it does not speak of
D
admission to such courses of study. Indeed, none of the sections afore
mentioned empower the council to regulate or prescibe qualif.cations or
conditions for admission to such courses of study. No other provision in
the Act does. It is thus clear that the Act does not purport to deal with,
regulate or provide for admission to graduate or post- graduate medical
E courses. Indeed, in so far as post-graduate courses are concerned, the
power of the Indian Medical Council to "prescribe the minimum standards
of medical education" is only advisory in nature and not of a binding
character. In such a situation, it would be rather curious to say that the
Regulations made under the Act are binding upon them. The Regulations
made under the Act cannot also provide for or regulate admission to
F
post-graduate courses in any event.

The Regulations made by the Medical Council in 1971 (revised upto
January, 1978) speak generally of students for post-graduate training being
selected "scrictly on merit judged on the basis of academic record in the
G under-graduate course 11 • This is more in the nature of advice and not a
binding direction. The Regulation does not say that no reservations can be
provided under Article 15(4). The power conferred upon the State by
clause (4) of Article 15 is a constitutional power. The said power obviously
could not have been overridden or superseded by a regulation made by the
Indian Medical Council under the Act. The Regulation must be read
H
\,
AJAYKUMAR v.STATEOFBIHAR[JEEVANREDDY,J.J' 75

consistent with Article 15(4) and if so read, it means that the students shall A
be admitted to post-graduate training strictly on the basis of merit in each
of the relevant classes or categories, as the case may be. Any other
construction seeking to give an absolute meaning to the said Regulation
would render it invalid both on the ground of travelling beyond the Act. It
may also fall foul of Article 15(4).
B
So for as 1992 Recommenda.tions are concerned, they have not yet
been approved by the Central Government nor have they been published
as Regulations under Section 33. No more need be said with respect to
them for they cannot obviously govern the admission to medical courses.

In State of Madhya Pradesh v. Nivedita Jain, [1982] 1 S.C.R. 759, a c
Bench of this court comprising Y.V. Chandrachud, CJ., A. Vardharajan
and AN. Sen, JJ. held, dealing with a Regulation (simlar to the one
contained in the 1989 publication of the Regulation by the Indian Medical
Council) made by the Indian Medical Council that it is "merely directory
and does not have any mandatory force". A.N. sen, J. speaking for the D
Bench dealt with the scope of Entry 66 List-I in the Seventh Schedule to
the Constitution in the following words :

"Entry 66 in List I (Union List) of the 7th Schedule to the Con-
stitution relates to '1co-ordination and determination of standard
in institutions for higher education or research and scientific and E
technical institutions". This entry by itself does not have any bearing
on the question of selection of candidates lo the Medical Colleges
from amongst candidates who are eligible for such admission. On
the other hand, entry 25 in List III (Concurrent List) of the same
Schedule speaks of- 11 education, including technical education,
medical education in Universites, subject to entries 63, 64, 65 and F
66 of List 1... ..... vocational and technical training of labour". This
entry is wide enough to include within its ambit the question of
selection of candidates to medical colleges and there is nothing in
the entries 63, 64 and 65 of List I to suggest to the contrary. We
are, therefore, of the opinion that Regulation II of the Council G
which is merely directory and in the nature of a recommendation
has no such statutory force as to render the order in question which
contravenes the said regulation illegal, invalid and unconstitution-
al.11

We are inclined to agree \vith the above statement. The po\ver to H
76 SUPREME COURT REPORTS (1994] 3 S.C.R.

A regulate admission to the courses of study in medicine is traceable to Entry
25 in List !II. (Entry 11 in List-II, it may be remembered, was deleted by
the 42nd Amendment lo the Constitution and Entry 25 of List-III sub-
stituted.) The States, which establish and maintain these institutions have
the power to regulate all aspects and affairs of the institutions except to
the extent provided for by Entries 63 to 66 of List-I. Sri Salve contended
B that the determination and coordination of standards of higher education
in Entry 66 of List-! takes in all incidental or ancilliary matters, that
Regulation of admission to courses of higher education is a matter inciden-
tal to the determination of standards and if so, the said subject-matter falls
outside the field reserved to the States. He submits that by virtue of Entry
c 66 List-I, which overrides Entry 25 of List-III, the States are denuded of
all and every power to determine and coordinate the standards of higher
education, which must necessarily take in regulating the admission to these
courses. Even if the Act made by the Parliament docs not regulate the
admission to these courses, the States have no power to provide for the
D same for the reason that the said subject-matter falls outside their purview.
Accordingly, it must be held, says Sri Salve, that the provision made by the
State government reserving certain percentage of seats under Article 15(4)
is wholly incompetent and outside the purview of the field reserved lo the
States under the Constitution. We cannot agree. While Regulation of
admission to these medical courses may be incidental to the power under
E Entry 66 List-I, it is integral lo the power contained in Entry 25 List,III.
The Stale which has established and is maintaining these institutions out
of public funds must be held to possess the power to regulate the admission
policy consistent with Article 14. Such power is an integral component of
the power to maintain and administer these institutions. Be that as it may,
F since we have held, agreeing with the holding in Nivedita Jain that Entry
66 in List-I does not take in the selection of candidates or regulation of
admission to institutions of higher education, the argument of Sri Salve
becomes out of place. The States must be held perfectly competent to
provide for such reservations.

G
Sri Salve then contended that the principle of Nivedita Jain, if applied
uniformly, would undoubtedly tell upon and affect the power of the Par-
liament under Entry 66 of List-I. He submitted that if the State government
provides that a student belonging to a reserved category obtaining one
mark in entrance test would yet be eligible for admission in post-graduate
H courses in a situation where the eligibility percentage is, say, 50% for open
1.

AJAYKUMAR v.STATEOFBIHAR[JEEVANREDDY,J.] 77

competition candidates, it is bound to affect the standards of education. A
Counsel pointed out that according to the ratio of Nivedita Jain1 this is
permissible. In our opinion, Sri Salve is over-drawing the picture. A perusal
of the judgment in Nivedita Jain shows that the minimum eligibility marks
prescribed for general candidates for admission to M.B.B.S. was 50
whereas for Scheduled Castes/Scheduled Tribes candidates it was 40
marks. During a particular year, it so happeneJ that even after relaxing the B
minimum eligibility marks by 5%, Scheduled Castes/Scheduled Tribes can-
didates were not available in adequate number to fill the seats reserved for
them. It was in such a situation that the government resorted to the
exceptional step of removing the minimum required marks altogether for
that year in exercise of power of relaxation. It was not done on permanent
basis. Be that as it may, we are of the opinion that Entry 66 List-I ought
c
not to be construed in isolation. It must be read alongwith Entry 25 in
List-III. Entry 25, as substituted by the 42nd (Amendment) Act, reads:
11
Education including technical education, medical education and univer-
sities subject to the provisions of Entries 63, 64, 65 and 66 of List-I;
vocational and technical training of labour". The subject-matter of educa- D
tion including medical education is thus in the concurrent list. Only a
portion of it in so far as it falls under Entries 63 to 66 of List-I has been
·•. scooped out of it and placed in List-I. But this only means that we should
properly delineate the field occupied by Entries 63 to 66 of List-I to find
out how much is taken away from out of Entry 25. Whenever a question
arises whether a particular Legislation made by the State with reference to E
Entry 25 impinges upon the aforesaid entries in List-I, one has to apply the
doctrine of pith and substance to determine whether the Act impinges
upon the field reserved to the Parliament. This principle is well-settled
from a series of decisions of this court. In Ishwari Khaitan Sugar Mills (P)
Ltd. & Anr. v. State of Uttar Pradesh & 0'1. etc., [1980] S.C.R. (3) 331, the
F
question was whether the Uttar Pradesh Sugar Undertakings (Acquisition)
Act, 1971 was void for th• reason that it trenched upon the field occupied
by Entry 52 of List-I - ("Industries, the control of which by the Union is
declared by Parliament by law to be expedient in the public interest"). The
Parliament, as is well-known, made such a declaration in the Industrial
Development and Regulation Act, 1951 and sugar industry is one of the G
industries included in the Schedule to the Act. The plea of the State was
that the law made by it is in pith and substance relatable to Entry 42 in
List-lll ("Acquisition and Regulation of Property") and is, therefore, not
ultravires the powers of the State Legislature. A Constitution Bench of this
court upheld the State's plea on an examination of the provisions of the
H
78 SUPREME COURT REPORTS [1994] 3 S.C.R.

A State Act. In that connection, it observed:

"When validity of a legislation is challenged on the ground of want
of legislative competence and it becomes necessary to ascertain to
which entry in the three lists the legislation is referable to, the
Court has evolved the theory of pith and substance. If in pith and
B substance a legislation falls within one entry or the other but some
portion of the subject-matter of the legislation incidentally trenches
upon and might enter a field under another List, the Act as a whole
would be valid notwithstanding such incidental trenching. This is
well established by a catena of decisions (see Union of India v.
c H.S. Dhillon, [1972] 2 SCR 33 =AIR (1972) SC 1061 and Kera/a
State Electricity Board v. Indian Aluminium Co. Ltd., [1976] 1 SCR
552=A1R 1978 SC 215, Untwalia, J. speaking for the Constitution
Bench has in terms stated that the pith and substance of the Act
has to be looked into and an incidental trespass would not in-
validate the law. The challenge in that case was to the nationalisa-
D tion of contract carriage by the Karnat3.ka State, inter alia, on the
ground that the statute was invalid as it was a legislation on the
subject of inter-State trade and commerce. Repelling this conten-
tion, the Court unanimously held that in pith and substance the
impugned legislation was for acquisition of contract carriage and
E not an Act which deals with inter-State trade and commerce."

The court held further that there was indeed no conflict between
the I.D.R. Act and the State Act and that both can operate simultaneously
without coming into conflict with each other. The court observed:
F
"................ the !DR Act is essentially concerned with the control
over the management of the industrial undertakings in declared
industries. By the acquisition under the impugned Act and vesting
of the scheduled undertakings in the Corporation the scheduled
undertaking will nevertheless be under the control of the Central
G Government as exercised by the provisions of the !DR Act because
the Corporation would be the owner and would be amenable to
the authority and jurisdiction of the Central Government as the
provisions of the !DR Act would continue to apply to the
scheduled undertakings, sugar being a declared industry, and
H scheduled undertakings are industrial undertakings within the
'i
I.
AJAY KUMAR v. STATE OF BIHAR [JEEVAN REDDY, J.] 79

, '
~
meaning of the !DR Act. No provision from !DR Act was pointed A
out to us to show that in implementing or enforcing such a
i provision the impugned legislation would be an impediment.
Therefore, there is no conflict between the impugned legislation
and the control exercised by the Central Government under the
provisions of the !DR Act and ther.e is not even a remote encroach-
B
ment on the field occupied by !DR Act."

In our opinion, the situation in the case before us is no different. The
State will regulate the admission policy and at the same time adhere to the
standards determined by the Indian Medical Council.

Reference in this connection may also be made to another well-
c
settled principle-affirmed in Calcutta Gas Co. v. State of West Bengal,
A.LR. (1962) S:C. 1044, to wit: "every attempt should be made to har-
monize the apparently conflicting entries not only of different Lists but also
of the same Lists and to reject that construction which will rob one of the
entries of its entire content and make it nugatory This principle applies D
11
•

equally to a case where an entry in List-II or List-lll is made subject to an
; Entry in List-I. The concerned entry in List-I should not be so construed
as to rob the relevant entry in List-II or List-Ill of all its content and
substance. It is only when it proves not possible to reconcile the entries
that the non-obstante clause "notwithstanding anything in clauses (2) and E
(3)" occurring in Article 246(1) has to be resorted to. Applying the
aforesaid rules, we must hold that regulation of admission of students
subject to post-graduate medical courses falls outside the purview of Entry
66 List-I, which means that it continues to inhere the Entry 25 of List-lll.

Even if one relates the Indian Medical Act to Entry 25 of List- Ill F
in addition to Entry 66 of List-I, even then the position is no different - for
the Indian Medical Act does not purport to regulate the admissions O'
admission policy to post-graduate medical courses. The field is thus left
free to be regulated by the State. The State can make a law or an executive
rule; in this case it has chosen to make an executive rule.
G
It may also be mentioned that the impugned provision provides a
uniform eligibility criteria of 50% for general candidates and candidates of
'other backward classes' and 40% for members of Scheduled Castes and
>-
Scheduled Tribes. Only when the students in requisite number were not
available was the said criteria reduced to 40% and 30% respectively. This H
)

80 SUPREME COURT REPORTS [1994] 3 S.C.R.

A small distinction in the eligibility criteria can, by no stretch of imagination, ; ,
be said to impinge upon the determination or coordination of standards in
institutions of higher learning.

Sri Salve then contended that there is a conflict between the decision
in Nivedita Jain and the Constit>1tion Bench decision in Gujarat University,
B Ahmedabad v. Krishna Ranganath Mudholkar, [1963] Suppl. 1 S.C.R. 112.
The Gujarat University prescribed, purporting to the Act under Section 4
of the Gujarat University Act, that all instruction in the university colleges
shall be imparted through the Gujarati language alone. The question arose
whether the university had the power under the Act to prescribe Gujarati
c (or Hindi or both) as exclusive medium of instruction and examination and
whether legislation authorising the university to so prescribe was inconsis-
tent with Entry 66 of List-I? It was held by the majority that the Act did
not confer upon the university the power to impose Gujarati or Hindi or
both as exclusive medium of instruction or examination. Clause (27) of
D Section 4 of the Act, it was held, did not indicate that the Legislature was
dealing with the subject of prescribing an exclusive medium of instruction.
It was also observed that no other provision of the Act empowered the
university to do so. Accordingly, it was held, the universtiy could not
prescribe Gujarati as the sole medium of instruction. The above holding
concluded the matter and it was not necessary for the court to go into the
E question whether the State Legislature possessed the power to prescribe
Gujarati or Hindi as the exclusive medium of instruction in the university,
but the court did go into the question for the reason that High Court had
held the Act to be beyond the legislative competence of the State Legisla-
ture, and also because counsel for both parties requested the court to
express itself on the question for their future guidance. (See Page 135)
F
After referring to Entries 63 to 66 in List-I and Entry 25 of List-II
(as also to Entry 11 in List-II) the court observed: "Items 63 to 66 of List-I
are carved out of the subject of education and in respect of these items the
power to legislate is vested exclusively in the Parliament. Use of the
G expression "subject to" in item 11 of List II of the Seventh Schedule clearly
indicates that legislation in respect of excluded matters cannot be under-
taken by the State Legislatures ........ The two entries undoubtedly overlap
: but to the extent of overlapping, the power conferred by item 66 List 1
must prevail over the power of the State under item 11 of List II .......... ..
H Under items 63 to 65 the power to legislate in respect of medium of
'
1.

AJAY KUMAR v. STATEOFBIHAR[JEEVAN REDDY,J.] 81

instruction having regard to the width of those items, must be deemed to A
vest in the Union. Power to legislate in respect to medium of instruction,
in so far it has a direct bearing and impact upon the legislative head of
co-ordination and determination of standards in institutions of higher
education or research and scientific and technical institutions, must also be
deemed by item 66 List I to be vested in the Union." The court rejected
the argument that prescribing the medium of instruction is not a matter
B
falling within determination and coordination of standards of higher educa:
tion in Entry 66 of List-I. It held expressly that it is within the purview of
the said Entry. This decision, thus, holds that the medium of instruction of
higher education is a matter falling within the purview of "coordination and
determination of standards in institutions for higher education" in Entry 66 c
of List-I. Accordingly, it was held that the State Legistature was not
competent to legislate in that behalf. We see no conflict between the said
decision and the decision in Nivedita Jain.

Lastly, we may refer to the submission· of Sri Vikas Singh that the
Bihar Government acted illegally inasmuch as the impugned provision D
made by it is in clear contravention of the judgment of a learned Single
Judge of the Patna High Court in Vijay Kumar & Ors. v. State of Bihar,
1990 P.L.J.R. 277. In the said decision, it is pointed out, it has been held
that in view of the Indian Medical Council Act and the Regulations made
by the council, the order of the State Government providing for reserva- E
lions in the post-graduate medical course is impermissible. It is submitted
that the said decision had become final and was, therefore, binding upon
the State of Bihar. It does not, however, appear that this decision was
brought to the notice of the Division Bench that rendered the decision
under appeal. Since, we have expressed ourselves on merits of the con-
troversy, which is inconsistent with the ratio of the judgment in Vija1 F
Kuntar, it is not necessary to pursue this argument of learned counsel.

For all the above reasons, the appeals fail and are dismissed. No
costs.

U.R. Appeals dismissed. G