SUDHIR N. & ORS.versusSTATE OF KERALA & ORS.

                        [2015) 1 S.C.R. 884


A                       SUDHIR N. & ORS.
                                  V.
                   STATE OF KERALA & ORS.
                (Civil Appeal No. 297-298 of 2015)
                        JANUARY 12, 2015
B
            [T.S. THAKUR AND R. BANUMATHI, JJ.]

        Kera/a Medical Officers' Admission to Post Graduate
  Courses under Service Quota Act, 2008 - s. 5(4) -
C Admission to Post-graduate Medical Courses in-service
  quota - On the basis of seniority - Constitutional validity of -
  Held: As per regulation 9 of Medical Council of India
  Regulations, admission can be made strictly on the basis of
  inter-se academic merit of the candidates and not by taking
D into account the service rendered by them in rural areas -
  Weightage of such service is permissible while determining
  the merit of the candidates only in terms of the third proviso
  to Regulation 9 - s. 5(4) in asmuch as it provides a basis for
  selection of candidates different from the one stipulated by
E MC/ Regulations, it was beyond the legislative competence
  of the State legislature - Medical Council of India Act, 1956
  - Post Graduate Medical Education Regulations of Medical
  Council of India, 2000 - Reg. 9 - Constitution of India, 1950
  - Art. 246 and Seventh Schedule List I, Entry 66 and List Ill
F Entry 25.

        Dismissing the appeals, the Court

       HELD: 1. Regulation 9 of the Regulations framed
  under the Medical Council of India Act, inter alia, provides
G that admission to post-graduate medical courses shall be
  made strictly on the basis of inter se academic merit of
  the candidates. The Regulation further stipulates the
  methodology for determining the academic merit of the
  candidate. Regulation 9 is a complete code by itself
H                            884
 SUDHIR N. & ORS. v. STATE OF KERALA & ORS. 885

inasmuch as it prescribes the basis for determining the      A
eligibility of the candidates including the method to be
adopted for determining the inter se merit which remains
the only basis for such admissions. That method,
however, is given a go-bye by the impugned legislation
i.e. s. 5(4) of Kerala Medical Officers' Admission to Post   B
Graduate Courses under Service Quota Act, 2008, when
it provides that in-service candidates seeking admission
in the quota reserved for in-service doctors shall be
granted such admission not on the basis of one of the
methodologies sanctioned by Rule 9(2) of the Rules but       c
on the basis of inter se seniority of such candidates.
[Paras 12 and 14] (894-E; 896-E-H]

     2. The High Court was right in holding that inasmuch
as the provisions of Section 5(4) of the impugned
enactment provides a basis for selection of candidates D
different from the one stipulated by the MCI Regulations
it was beyond the legislative competence of the State
Legislature. However, it was not correct in adopting a
reconciliatory approach when it directed that seniority of
the in-service candidates will continue to play a role E
provided the candidates concerned have appeared in the
common entrance test and secured the minimum
percentage of marks stipulated by the Regulations. A
meritorious in-service candidate cannot be denied
admission only because he has an eligible senior above F
him though lower in merit. Merit and merit alone can be
the basis of admission among candidates belonging to
any given category. In service candidates belong to one
category. Their inter-se merit cannot be overlooked only
to promote seniority which has no place in the scheme G
of MCI Regulations. That does not mean that merit based
admissions to in-service candidates cannot take into
account the service rendered by such candidates in rural
areas. Weightage for such service is permissible while
determining the merit of the candidates in terms of the H
    886      SUPREME COURT REPORTS               [2015] 1 S.C.R.


A   third proviso to Regulation 9. Regulation 9 remains as the
    only effective and permissible basis for granting
    admission to in-service candidates, provisions of Section
    5(4) of the impugned enactment notwithstanding. That
    being so, admissions can and ought to be made only on
B   the basis of inter se merit of the can~idates determined
    in terms of the said principle which gives no weightage
    to seniority simplicitor. [Para 20] [905-H; 906-A-G]

        Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors. (1999)
    7 SCC 120: 1999 (1) Suppl. SCR 249; State of M.P. & Ors.
C   v. Gopal D. Tirthani & Ors. (2003) 7 SCC 83: 2003 (1) Suppl.
    SCR 797; State of T.N. and Anr. v. Adhiyaman Educational
    & Research Institute & Ors. (1995) 4 SCC 104: 1995 (2)
    SCR 1075 - relied on.

D                        Case Law Reference:
          1999 (1) Suppl. SCR 249        relied on      Para 9
          2003 (1) Suppl. SCR 797        relied on      Para 9

E
          1995 (2) SCR 1075              relied on      Para 16

        CIVIL AP PELLATE JURISDICTION : Civil Appeal Nos.
    297-298 of 2015.

         From the Judgment and Order dated 30.03.2011 of the
F   Division Bench of the High Court of Kerala at Ernakulam in
    W.P. (C) No. 1014 of 2009(U) and W.P. (C) No. 2610 of
    2010(A).

                                WITH
G Civil Appeal Nos. 299-300, 301, 302-303, 304-305 and 306-
  307 of 2015

       John Mathew, P. V. Dinesh, Liz Mathew, M. F. Philip,
    Kedar Nath Tripathy, K. Rajeev, E. M. S. Anam, Gaurav
H
 SUDHIR N. & ORS. v. STATE OF KERALA & ORS.                  887


Sharma, Prateek Bhatia, Ms. Amandeep Kaur, Amit Kumar, for           A
the Appearing Parties.

    The Judgment of the Court was delivered by

    T.S. THAKUR, J. 1. Leave granted.
                                                                     B
      2. These appeals arise out of a judgment and order dated
30th March 2011 passed by the High Court of Kerala at
Ernakulam in Writ Petitions No.1014 of 2009 and 2610 of 2010
filed by the respondents whereby the High Court has allowed
the said petitions with the direction that selection of in-service   c
medical officers for post-graduate medical education under
Section 5(4) of the Kerala Medical Officers' Admission to
Postgraduate Courses under Service Quota Act, 2008 (Kerala
Act 29 of 2008), shall be made strictly on the basis of inter se
seniority of the candidates who have taken the common                D
entrance test for post-graduate medical education and have
obtained the minimum eligibility bench mark in that test in terms
of the Regulations framed by the Medical Council of India.

     3. Forty percent of the seats available in the State of
Kerala for post-graduate medical admission are reserved for          E
in-service doctors serving in the Health Service Department,
Medical College lecturers and doctors serving in the
Employees State Insurance Department of the State. As per
the practice prevalent before the enactment of the impugned
legislation admissions against such reserved seats were made         F
on the basis of seniority of in-service candidates in each
category. Post Graduate Medical Education Regulations of
Medical Council of India, 2000, however, made it mandatory
for all candidates seeking admission to post-graduate medical
courses to appear for a common entrance examination. The             G
Regulations, inter-alia, provide that candidates who appears
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           H
    888      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A qualify in the common entrance examination. Representations
  appear to have been received by the Government from many
  quarters pointing out that in-service candidates who were
  working around the clock for the benefit of the public even in
  remote rural areas could hardly find time to update their
B knowledge and compete with the general merit candidates so
  as to score the required 50% marks in the common entrance
  examination and to qualify for admission to any post-graduate
  course. Considering these representations, the Government
  decided to bring a legislation to overcome the difficulties faced
c by in-service candidates in the matter of getting admission to
  post-graduate courses. The legislation envisaged a quota for
  medical officers in the service of the State Government on such
  terms and conditions as may be prescribed. More importantly,
  in terms of Section 3 of Act No.29 of 2008 selection of medical
0 officers  to the post-graduate courses under the service quota
  was to be made by a Selection Committee called the Post
  Graduate Course Medical Selection Committee· constituted
  under Section 4 of the said Act. Section 5 of the Act
  empowered the Government to set apart seats not exceeding
E 40% of the total seats available in the State quota for any
  academic year for selection of medical officers under 'service
  quota' for admission to post-graduate medical courses in
  medical colleges of the State. Sub-section (2) of Section 5
  provided that the academic qualifications for admission to the
  post-graduate courses shall be an MBBS degree with a
F minimum of 50% marks besides other qualifications that may
  be prescribed. Sub-section (4) of Section 5 required the Post-
  graduate Selection Committee to finalise the selection list
  directly based on the seniority of the in-service medical officers
  and following such other criteria as may be prescribed. Section
G 6 provided for grant of weightage for 'rural area service' or
  'difficult rural area service' as the case may be, in the matter
  of selection of the candidates for admission. Sections 3, 4, 5
  and 6 to the extent they are relevant may be re-produced at this
  stage:
H
SUDHIR N. & ORS. v. STATE OF KERALA & ORS.             889
              [T.S. THAKUR, J.]

  "3. Selection of Medical Officers for admission to          A
  Postgraduate Course Under the Service.

   Quota.- Notwithstanding anything contained in the Indian
   Medical Council Act, 1956 (Central Act 102 of 1956) or
   any rule or regulation issued thereunder or in any
                                                              8
  judgment, decree or order of any court or authority, the
   selection of Medical Officers for admission to
   Postgraduate Course of study in the State under the
   service quota shall be made only under the provisions
   of this Act.
                                                              c
  4. Constitution of Post Graduate Course Medical
  Selection Committee -

         (1) The Government may constitute a
         Postgraduate Course Selection Committee for the      0
         purpose of selection of Medical Officers under the
         service quota with the following ex-officio
         members, namely:-

         (a) The Secretf!ry to Government, Health and
         Family Welfare Department, Government of             E
         Kera/a;

         (b) The Director of Medical Education;

         (c) The Director Health Services;
                                                              F
         (d) The Director of Insurance Medical Services;

         (e) The Joint Director of Medical Education (M);

         (f) The Joint Director of Medical Education (G).
                                                              G
         (2) The Secretary to Government, Health and
         Family Welfare Department shall be the
         Chairman and the Director of Medical Education
         shall be the Convenor of the Committee.
                                                              H
    890       SUPREME COURT REPORTS                  [2015) 1 S.C.R.


A                (3) The Committee shall discharge its functions in
                 such manner as may be prescribed.

          5. Procedure for selection. -

          (1) The Government may set apart seats not exceeding
B         forty percent of the total seats available to state quota in
          an academic year, for selection of Medical Officers under
          service quota considering their service under the
          Government for admission to Post Graduate Medical
          Courses in the Medical Colleges of the State in such
c         manner as may be prescribed.

          (2) The academic qualification for admission to the Post
          Graduate Course shall be M.B.B.S. degree with minimum
          fifty percent marks and the other qualifications shall be
D         such as may be prescribed.

          (3) The details of eligibility for admission, the duration of
          courses, allotment, fee to be paid, reservations of seats
          and such other details shall be published every year in
          the prospectus before the commencement of admission.
E
                 (4) The Postgraduate Course Selection
                 Committee shall finalise the selection list strictly
                 based on the seniority in service of the Medical
                 Officers and following such other criteria as may
F                be prescribed.

                 (5) The selection list finalised under sub-section
                 (4) shall be published by the Post Graduate
                 Selection Committee for the information of the
                 applicants.
G
          6. Weightage for rural service. - Every Medical Officer
          who has 'rural area service' or 'difficult rural area service'
          as the case may be, in the State shall be given
          weightage in selection in such manner as may be
H         prescribed."
 SUDHIR N. & ORS. v. STATE OF KERALA & ORS.                 891
               [T.S. THAKUR, J.)

     4. Aggrieved by the above legislation, Writ Petitions A
No.1014 of 2009 and 2610 of 2010 were filed by the
respondents challenging the constitutional validity of Sectio~
5(4) of the Act in so far as it provides that 'admission to post-
graduate in-service quota shall be only on the basis of seniority'.
The petitioners also questioned the validity of some of the B
provisions of the prospectus for the relevant year to the post-
graduate admission in the service quota but gave up that prayer
when the petitions eventually came up for hearing confining the
relief prayed for in the writ petition to a declaration as to the
validity of the statutory provisions under challenge.               c
     5. The primary ground on which the challenge to the validity
of the legislation was mounted by the writ petitioners was that
the State legislature could not enact a law that would make
selection for admission to the post-graduate courses dependent
solely on the seniority of the in-service candidates without D
prescribing the minimum conditions of eligibility for the
candidates concerned. Competence of the State Legislature
to enact Section 5(4) of the impugned Legislation was also
called in question on the ground that the said piece of
legislation violated the regulations framed by the Medical E
Council of India the authority competent to do so under the
Medical Council of India Act, 1956. It was argued that the Post-
Graduate Medical Education Regulations, 2000 provided the
minimum requirements that all the candidates have to fulfil.
Inasmuch as the State enactment contrary to the said regulation F
and requirement postulates that selection of candidates shall
be made only on the basis of seniority it was beyond the
legislative competence of the Kerala State Legislature. The
Indian Medical Council Act and the MCI Regulations framed
under the same were, argued the writ petitioners-respondents G
herein, referable only to Entry 66 of List I of Seventh Schedule.
Any legislation enacted by the State Legislature in exercise of
its power under Entry 25 in List Ill was subject to any law to the
contrary passed by the Parliament in exercise of its power under
 Entry 66 of List I. That the State Act was reserved for H
    892      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A   consideration of. the President and that it has received the
    assent of His Excellency in terms of Article 254(2) of the
    Constitution did not save the legislation from the vice of
    legislative incompetence.

8       6. The State of Kerala contested the petitions and, inter
  alia, argued that the State enactment was in pith and substance
  different from the Indian Medical Council Act and the MCI
  Regulations. Th~ State attempted to justify the legislation under
  Entry 25 of List Ill and argued that it does not in any manner
C conflict with Entry 66 of List I. It was argued that the dominant
  purpose of the legislation under challenge ought to be seen,
  and that purpose did not, according to the State, in any way,
  impinge upon the Central legislation so as to call for any
  interference by the Court.

D      7. On behalf of the in-service doctors an attempt was made
  to justify the enactment on the ground that, but, for a provision
  permitting a quota for service aspirants for admission to post-
  graduate courses it would be difficult to compete with fresh
  graduates who may be academically better off than candidates
E who have since long given up their studies and devoted
  themselves entirely to the service of the people at large some
  of them inhabiting in remote and difficult areas of the State.

       8. The Medical Council of India who was arrayed as a
F respondent in the writ petitions, however, supported the case
  of the writ-petitioners (respondents herein) to point out that the
  MCI Regulations categorically postulate that students for post-
  graduate course can be selected only on the basis of their inter
  se academic merit. Any other method of selection is, therefore,
  by necessary implication forbidden. Inasmuch as the State
G Legislation has attempted to introduce another method of
  selection which has the effect of subverting the MCI Regulations
  the impugned enactment was bad.

      9. The High Court of Kerala has, by the judgment and
H order impugned in these appeals, agreed in principle that
  SUDHIR N. & ORS. v. STATE OF KERALA & ORS.                  893
                [T.S. THAKUR, J.]

admission to post-graduate courses can be made only on the            A
basis of inter se seniority provided the candidates appear in
the common entrance examination and qualify. It has relying
upon the decisions of this Court in Dr. Preeti Srivastava & anr.
v. State of M.P. & ors. (1999) 7 sec 120 and State of M.P. &
Ors. v. Gopal D. Tirthani & Ors. (2003) 7 SCC 83 held that            B
the prescription ·of an entrance examination with minimum
eligibility marks to be secured in the entrance test for post-
graduate course is within the field covered by Entry 66 of List
I and that the State Legislature cannot, by reference to Entry
25 of List 111, make any law that may have the effect of              c
encroaching upon the field occupied by Entry 66 of List I. The
High Court observed:

     "The principles of law emanating from the above include
     that the prescription as to the requirement of an entrance
     examination with a minimum eligibility bench mark to be D
     acquired in that entrance test for postgraduated medical
     education is within the field covered by Entry 66 in List I
     and the competence of the State Legislature to make a
     law with reference to Entry 25 in List Ill would not enable
     it to make any such law encroaching on the field occupied E
     by Entry 66 in List I. The MCI Regulations framed under.
     Section 33 of the IMC Act is insulated from any
     contradiction by any State legislation. Therefore, the
     State cannot make a law doing away with the requirement,
     for in-service candidates, to participate in the common F
     entrance test for admission to postgraduate medical
     courses and obtaining the minimum eligibility
     requirement prescribed by the MCI in the Regulations."

     10. The High Court then held that inasmuch as Section 5(4)       G
of the impugned enactment provides for the preparation of a
select list of in-service medical officers based on seniority, such
selection shall be made from among in-service medical officers
only who have appeared in the common entrance test of post-
graduate medical education and obtained the minimum                   H
    894       SUPREME COURT REPORTS              [2015] 1 S.C.R.


A   eligibility bench mark in that test in terms of the MCI
    Regulations. The High Court held:

          "The conclusion is that the provision in Section :J(4) of
          the State Act that the select list of in-service medical
          officers for postgraduate medical education shall be
B
          strictly on the basis of seniority is subject to the
          requirement that such selection can be made only from
          among tho~~ in-service medical officers who have
          undergone' the common entrance test for postgraduate
          medical education and have obtained the minimum
c         eligibility bench mark in that test in terms of the MCI
          Regulations. It is so declared. These writ petitions are
          allowed to that extent."

      11. The present appeals assail the correctness of the
D above order and judgment.

         12. Regulation 9 of the Regulations framed under the MCI
    Act, inter a/ia, provides that admission to post-graduate
    medical courses shall be made strictly on the basis of inter se
E   academic merit of the candidates. The Regulation further
    stipulates the methodology for determining the academic merit
    of the candidate. It reads:

          "Selection of Postgraduate Students

F         (1) (a) Students for Postgraduate medical courses shall
          be selected strictly on the basis of their inter-se
          Academic Merit.
                (b) 50% of seats in Post Graduate Diploma
                Course shall be reserved for Medical Officers in
G               the Government service, who have served for at
                least three years in remote and difficult areas.
                After acquiring the PG Diploma, the Medical
                Officers shall serve for two more years in remote
                and/or difficult areas.
H
SUDHIR N. & ORS. v. STATE OF KERALA & ORS. 895
              [T.S. THAKUR, J.]
  (2) For determining the nAcademic Merit", the University/ A
  Institution may adopt the following methodologies:
        (a) On the basis of merit as determined by a
        'Competitive Test' conducted by the state
        government or by the competent authority 8
        appointed by the state government or by the
        university/group of universities in the same state;
        or

        (b) On the basis of merit as determined by a
        centralised competitive test held at the national C
        level; or
        (c) On the basis of the individual cumulative
        performance at the first, second and third MBBS
        examinations provided admissions are University       o
        wise; or
         (d) Combination of (a) and (c).

        Provided that wherever 'Entrance Test' for
  postgraduates admission is held by a state government E
  or a university or any other authorized examining body,
  the minimum percentage of marks for eligibility for
  admission to postgraduate medical course shall be 50
  percent for general category candidates and 40 percent
  for the candidates belonging to Scheduled Castes, F
  Scheduled Tribes and Other Backward Classes.

  Provided further that in Non-Governmental institutions
  fifty percent of the total seats shall be filled by the
  competent authority notified by the State Government G
  and the remaining fifty percent by the management(s) of
  the institution on the basis of inter-se Academic Merit.

  Further provided that in determining the merit and the
  entrance test for postgraduate admission weightage in the
  marks be given as an incentive at the rate of 10% of the    H
     896       SUPREME COURT REPORTS                [2015) 1 S.C.R.


A          marks obtained for each year in service in remote or
           difficult areas upto the maximum of 30% of the marks
           obtained.'

           13. The above leaves no manner of doubt that admissions
8    to post-graduate medical courses have to be made only on the
     basis of academic merit of the candidates. It is clear from sub-
     Regulation (2) (supra) that for determining the "academic merir
     the university/institution can adopt any of the methodologies
     stipulated therein. In terms of proviso (1) to Regulation 9,
C    general category candidates must secure 50% marks while
     those belonging to SC/ST and other backwards classes are
     required to secure at least 40% marks in the entrance test in
     order to be eligible for admission. In terms of the third proviso
     to Rule 9 (supra) weightage for service rendered in remote and
     difficult areas is made permissible at the rate of 10% of the
D    marks obtained for each year in service in remote or difficult
     areas upto a maximum 30% of the marks.

           14. Regulation 9 is, in our opinion, a complete code by
     itself inasmuch as it prescribes the basis for determining the
·E   eligibility of the candidates including the method to be adopted
     for determining the inter se merit which remains the only basis
     for such admissions. To the performance in the entrance test
     can be added weightage on account of rural service rendered
     by the candidates in the manner and to the extent indicated in
F    the third proviso to Regulation 9. Suffice it to say that but for
     the impugned legislation making an attempt to change the
     basis on which admissions can be made, such admissions
     must, in all categories, be made only on the basis of merit as
     determined in terms of the provision extracted above. That
G    method, however, is given a go-bye by the impugned
     legislation when it provides that in-service candidates seeking
     admission in the quota reserved for in-service doctors shall be
     granted such admission not on the basis of one of the
     methodologies sanctioned by Rule 9(2) of the Rules but on the
H    basis of inter se seniority of such candidates. The question is
 SUDHIR N. & ORS. v. STATE OF KERALA & ORS.                 897
               [T.S. THAKUR, J.]

whether the State was competent to enact such a law. Our            A
answer to that question is in the negative. The reasons are not
far to seek. As noted earlier, the subject is fully covered by
several pronouncements of this Court to which we shall
presently refer but before we do so we may extract Article 246
of the Constitution which reads as under:                           B

    "246. Subject matter of laws made by Parliament and by
    the Legislatures of States

    ill Notwithstanding anything in clauses (2) and (3),
    Parliament has exclusive power to make laws with respect        C
    to any of the matters enumerated in List I in the Seventh
    Schedule (in this Constitution referred to as the Union
    List)

    @ Notwithstanding anything in clause (3), Parliament,           D
    and, subject to clause (1), the Legislature of any State
    also, have power to make Jaws with respect to any of the
    matters enumerated in List Ill in the Seventh Schedule
    (in this Constitution referred to as the Concurrent List)

    (3) Subject to clauses (1) and (2), the Legislature of any      E
    State has exclusive power to make Jaws for such State
    or any part thereof with respect to any of the matters
    enumerated in List II in the Seventh Schedule (in this
    Constitution referred to as the 'State List?
                                                                    F
    Ml Parliament has power to make Jaws with respect to any
    matter for any part of the territory of India not included
    (in a State) notwithstanding that such matter is a matter
    enumerated in the State List"

    15. We may also refer, at this stage, to Entry 66 of List I     G
which runs as under:

     "66. Co-ordination and determination of standards in
     institutions for higher education or research and scientific
     and technical institutions."                                   H
    898       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A         16. In State of T.N. and Anr. v. Adhiyaman Educational
    & Research Institute & Ors. (1995) 4 SCC 104, this Court was
    examining the scope of Entry 66 of the Union List vis-a-vis Entry
    25 of the Concurrent List in relation to the provisions of Tamil
    Nadu Private Colleges (Regulation) Act and Madras University
B   Act vis-a-vis Council for Technical Education Act, 1987. This
    Court held that the Central Act was intended to achieve the
    object of coordinated and integrated development of the
    technical education system at all levels throughout the country
    with a view to promoting qualitative improvement of such
c   education. This Court further held that the Central Act namely,
    All India Council for Technical Education Act, 1987 was within
    the scope of Entry 66 of List I and Entry 25 of List Ill and that
    on the subject covered by the statute the State could neither
    make a law under Entry 11 of List II nor-1,!_nder Entry 25 of List
    Ill after the 42nd Amendment. If there was any law existing
0
    immediately before the commencement of the Constitution
    within the meaning of Article 372, such as the Madras University
    Act, 1923, the Central Legislation would, to the extent of
    repugnancy, impliedly repeal such pre-existing law. This Court
E   summed up the legal position and the test applicable in the
    following paragraph:

          "41. What emerges from the above discussion is as
          follows:

F         (i) The expression 'coordination' used in Entry 66 of the
          Union List of the Seventh Schedule to the Constitution
          does not merely mean evaluation. It means
          harmonisation with a view to forge a uniform pattern for
          a concerted action according to a certain design, scheme
          or plan of development. It, therefore, includes action not
G
          only for removal of disparities in standards but also for
          preventing the occurrence of such disparities. It would,
          therefore, also include power to do all things which are
          necessary to prevent what would make 'coordination'
          either impossible or difficult. This power is absolute and
H
SUDHIR N. & ORS. v. STATE OF KERALA & ORS.                  899
              [T.S. THAKUR, J.]

  unconditional and in the absence of any valid compelling         A
  reasons, it must be given its full effect according to its
  plain and express intention.

  (ii) To the extent that the State legislation is in conflict with
  the Central legislation though the former is purported to
                                                                    8
  have been made under Entry 25 of the Concu"ent List
  but in effect encroaches upon legislation including
  subordinate legislation made by the Centre under Entry
  25 of the Concurrent List or to give effect to Entry 66 of
  the Union List, it would be void and inoperative.
                                                                   c
  (iii) If there is a conflict between the two legislations,
  unless the State legislation is saved by the provisions of
  the main part of clause (2) of Article 254, the State
  legislation being repugnant to the Central legislation, the
  same would be inoperative.                                  D

  (iv) Whether the State law encroaches upon Entry 66 of
  the Union List or is repugnant to the law made by the
  Centre under Entry 25 of the Concurrent List, will have
  to be determined by the examination of the two laws and          E
  will depend upon the facts of each case.

   (v) When there are more applicants than the available
   situations/seats, the State authority is not prevented from
   laying down higher standards or qualifications than those
   laid down by the Centre or the Central authority to short-       F
   list the applicants. When the State authority does so, it
 . does not encroach upon Entry 66 of the Union List or
   make a law which is repugnant to the Central law.

  (vi) However, when the situations/seats are available and        G
  the State authorities deny an applicant the same on the
  ground that the applicant is not qualified according to its
  standards or qualifications, as the case may be, although
  the applicant satisfies the standards or qualifications laid
  down by the Central law, they act unconstitutionally. So          H
    900        SUPREME COURT REPORTS                [2015) 1 S.C.R.


A         also when the State authorities de-recognise or disaffiliate
          an institution for not satisfying the standards or
          requirement laid down by them, although it satisfied the
          norms and requirements laid down by the Central
          authority, the State authorities act illegally."
B
        17. In Dr. Preeti Srivastava (supra) one of the questions
  that fell for consideration was whether the standard of education
  and admission criteria could be laid under Entry 25 of List Ill
  by a Central Legislation. A Constitution Bench of this Court by
  majority held that standard of education and admission criteria
C could be laid down under Entry 66 of List I and under Entry 25
  of List Ill. It was held that both the Union as well as the State
  have the power to legislate on education including medical
  education and the State has the right to control education so
  far as the field is not occupied by any union legislation. When
D the maximum marks to be obtained in the entrance test for
  admission to the institutions for higher education including
  higher medical education is fixed, the State cannot adversely
  affect the standards laid down by the union government. It was
  held that it is for the MCI to determine reservation to be made
E for SC/ST and OBC candidates and lowering the qualifying
  marks in their favour on the pretext or pretence of public interest.
  Speaking for the majority, Sujata V. Manohar, J. summed up
  the legal position as under:

          "35. The legislative competence of Parliament and the
F
          legislatures of the States to make laws under Article 246
          is regulated by the VI/th Schedule to the Constitution. In
          the VI/th Schedule as originally in force, Entry 11 of List
          II gave to the State an exclusive power to legislate on
          "education including universities, subject to the
G         provisions of Entries 63, 64, 65 and 66 of List I and Entry
          25 of List Ill".

          Entry 11 of List If was deleted and Entry 25 of List lfl was
          amended with effect from 3-1-1976 as a result of the
H         Constitution 42nd Amendment Act of 1976. The present
SUDHIR N. & ORS. v. STATE OF KERALA & ORS. 901
              [T.S. THAKUR, J.]

  Entry 25 in the Concur,·ent List is as follows:             A

         "25. Education, including technical education,
         medical education and universities, subject to the
         provisions of Entries 63, 64, 65 and 66 of List I;
         vocational and technical training of labour."        B
  Entry 25 is subject, inter alia, to Entry 66 of List I.

  Entry 66 of List I is as follows:

  "66. Coordination and determination of standards in C
  institutions for higher education or research and scientific
  and technical institutions."

  Both the Union as well as the States have the power to
  legislate on education including medical education,
  subject, inter alia, to Entry 66 of List I which deals with D
  laying down standards in institutions for higher education
  or research and scientific and technical institutions as
  also coordination of such standards. A State has,
  therefore, the right to control education including medical
  education so long as the field is not occupied by any E
  Union legislation. Secondly, the State cannot, while
  controlling education in the State, impinge on standards
  in institutions for higher education. Because this is
  exclusively within the purview of the Union Government.
   Therefore. while prescribing the criteria for admission to F
  the institutions for higher education including higher
  medical education. the State cannot adversely affect the
  standards laid down by the Union of India under Entry 66
  of List I. Secondlv. while considering the cases on the
  subject it is also necessarv to remember that from 1977. G
  education. including, inter alia. medical and university
  education. is now in the Concurrent List so that the Union
  can legislate on admission criteria also. ff it does so. the
   State will not be able to legislate in this field, except as
  provided in Article 254.
                                                                H
    902       SUPREME COURT REPORTS                  [2015] 1 S.C.R.

A         36. It would not be correct to say that the norms for
          admission have no connection with the standard of
          education, or that the rules for admission are covered
          only by Entry 25 of List /II. Norms of admission can have
          a direct impact on the standards of education. Of course,
B         there can be rules for admission which are consistent with
          or do not affect adversely the standards of education
          prescribed by the Union in exercise of powers under Entry
          66 of List I. For example, a State may. for admission to
          the postgraduate medical courses. lay down qualifications
c         in addition to those prescribed under Entry 66 of List I. This
          would be consistent with promoting higher standards for
          admission to the higher educational courses. But any
          lowering of the norms laid down can and does have an
          adverse effect on the standards of education in the
          institutes of higher education. Standards of education in
D
          an institution or college depend on various factors. Some
          of these are:

          (1) the calibre of the teaching staff;

E         (2) a proper syllabus designed to achieve a high level
          of education in the given span of time;

          (3) the student-teacher ratio;

          (4) the ratio between the students and the hospital beds
F         available to each student;

          (5) the calibre of the students admitted to the institution;

          (6) equipment and laboratory facilities, or hospital
          facilities for training in the case of medical colleges;
G
          (7) adequate accommodation for the college and the
          attached hospital; and

          (8) the standard of examinations held including the
H         manner in which the papers are set and examined and
 SUDHIR N. & ORS. v. STATE OF KERALA & ORS.                   903
               [T.S. THAKUR, J.]

    the clinical performance is judged."                              A
                                            (emphasis supplied)

      18. This Court further held that MCI had framed regulations
in exercise of the power conferred under Section 20 read with
Section 33 of the Medical Council of India Act which covered          B
post-graduate medical education. These regulations are
binding and the States cannot, in exercise of their power under
Entry 25 of List Ill, make any rule which are in conflict with or
adversely impinge upon the regulations made by the MCI. Since
the standards laid down are in exercise of power conferred            C
under Entry 66 of List I, the exercise of that power is exclusively
within the domain of the union government. The State's power
to frame rules pertaining to education was in any case subject
to -any provision made in that connection by the union
government. The Court observed:                                       D

     "52. Mr. Salve, learned counsel appearing for the
     Medical Council of India has, therefore, rightly submitted
     that under the Indian Medical Council Act of 1956 the
     Indian Medical Council is empowered to prescribe, inter          E
     alia, standards of postgraduate medical education. In the
     exercise of its powers under Section 20 read with Section
     33 the Indian Medical Council has framed regulations
     which govern postgraduate medical education. These
     regulations, therefore, are binding and the States cannot,
     in the exercise of power under Entry 25 of List Ill, make        F
     rules and regulations which are in conflict with or
     adversely impinge upon the regulations framed by the
     Medical Council of India for postgraduate medical
     education. Since the standards laid down are in the
     exercise of the power conferred under Entrv 66 of List I.        G
     the exercise of that power is exclusively within the domain
     of the Union Government. The power of the States under
     Entrv 25 of List Ill is subject to Entry 66 of List I.

     53. Secondly, it is not the exclusive power of the State to      H
    904       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A         frame rules and regulations pertaining to education since
          the subject is in the Concurrent List. Therefore, any power
          exercised by the State in the area of education under
          Entry 25 of List Ill will also be subject to any existing
          relevant provisions made in that connection by the Union
B         Government subject, of course, to Article 254."

                                               (emphasis supplied)

          19. We may also at this stage refer to the decision of this
    Court in Gopa/ D. Tirthani case (supra). That was a case where
C   the State defined the percentage at post-graduation level for
    degree and diploma course exclusively for in-service
    candidates. The reservation came under challenge but was
    upheld by this Court holding that the setting apart of 20% seats
    in post-graduate course for in-service candidates was not a
D   reservation but a separate and exclusive channel of entry or
    source of admission, the validity whereof cannot be determined
    on the constitutional principles applicable to communal
    reservation. In-service candidates and those who are not in-
    service are two classes based on an intelligible differentia. The
E   purpose sought to be achieved by such classification was a
    laudable purpose as such candidates would, after they acquire
    higher academic achievements, be available to be posted in
    rural areas by the State Government. Having said that, this Court
    held that there can be no relaxation for in-service candidates
F   in so far as the common entrance test is concerned and MCI
    regulation could not be relaxed for that purpose. The argument
    that in-service candidates are detached from theoretical study
    and cannot, therefore, compete with other candidates was
    rejected by this Court. The following passages, in this regard,
G   are apposite:

          "25. The eligibility test, called the entrance test or the
          pre-PG test, is conducted with dual purposes. Firstly, it
          is held with the object of assessing the knowledge and
          intelligence quotient of a candidate whether he would be
H         able to prosecute postgraduate studies if allowed an
 SUDHIR N. & ORS. v. STATE OF KERALA & ORS. 905
               [T.S. THAKUR, J.]

    opportunity of doing so; secondly, it is for the purpose of A
    assessing the merit inter se of the candidates which is.
    of vital significance at the counselling when it comes to
    allotting the successful candidates to different disciplines
    wherein the seats are limited and some disciplines are
    considered to be more creamy and are more coveted B
    than the others. The concept of a minimum gualitving
    percentage cannot. therefore. be given a complete go-
    bv. If at all there can be departure. that has to be minimal
    and that too only bv approval of experts in the field of
    medical education. which for the present are available as c
    a bodv in the Medical Council of India.
    26. The Medical Council of India, for the present, insists,
    through its Regulations, on a common entrance test
    being conducted whereat the minimum qualifying marks
    would be 50%. The State of Madhya Pradesh must D
    comply with the requirements of the Regulations framed
    by the Medical Council of India and hold a common
    entrance test even if there are two separate channels of
    entry and allow clearance only to such candidates who
    secure the minimum qualifying marks as prescribed by E
    the MCI Regulations. If the State has a case for making
    a departure from such rule or for carving out an exception
    in favour of any classification then it is for the State to
    represent to the Central Government and/or the Medical
    Council of India and make out a case of justification F
    consistently with the aforequoted observation of this Court
    in Dayanand Medical College and Hospital case."
                                          (emphasis supplied)
      20. It is in the light of the above pronouncements futile to G
argue that the impugned legislation can hold the field even when
it is in clear breach of the Medical Council of India's
Regulations. The High Court was, in our opinion, right in holding
that inasmuch as the provisions of Section 5(4) of the impugned
enactment provides a basis for selection of candidates different
                                                                   H
    906        SUPREME COURT REPORTS               [2015] 1 S.C.R.


A from the one stipulated by the MCI Regulations it was beyond
  the legislative competence of the State Legislature. Having said
  that the High Court adopted a reconciliatory approach when it
  directed that seniority of the in-service candidates will continue
  to play a role provided the candidates concerned have
B appeared in the common entrance test and secured the
  minimum percentage of marks stipulated by the Regulations.
  The High Court was, in our opinion, not correct in making that
  declaration. That is because, even when in Gopa/ D. Tirthani's
  case (supra) this Court has allowed in-service candidates to
c be treated as a separate channel for admission to post-
  graduate course within that category also admission can be
  granted only on the basis of merit. A meritorious in-service
  candidate cannot be denied admission only because he has
  an eligible senior above him though lower in merit. It is now fairly
0 well settled that merit and merit alone can be the basis of
  admission among candidates belonging to any given category.
  In service candidates belong to one categ9ry. Their inter-se
  merit cannot be overlooked only to promote seniority which has
  no place in the scheme of MCI Regulations. That does not
  mean that merit based admissions to in-service candidates
E
  cannot take into account the service rendered by such
  candidates in rural areas. Weightage for such service is
  permissible while determining the merit of the candidates in
  terms of the third proviso to Regulation 9 (supra). Suffice it to
  say that Regulation 9 remains as the only effective and
F permissible basis for granting admission to in-service
  candidates provisions of Section 5(4) of the impugned
  enactment notwithstanding. That being so, admissions can and
  ought to be made only on the basis of inter se merit of the
  candidates determined in terms of the said principle which
G gives no weightage to seniority simplicitor.
         21. In the result, these appeals fail and are hereby
    dismissed but in the circumstances without any order as to
    costs.
H   Kalpana K. Tripathy                             Appeals dismissed.