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A.M.SHAFFIQUE, J{

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W,P.Cl.Nos.5858/:]0 1 4 & conn.cases

Sl.No.7 G;eneral caiigoii Passing criteria45 Percentage2 isc/sr/sEBC3 ,PD

35 Percentaget40 percentage

2. Tl^re facts involved in the writ petition woulddisclose that pursuant to the directions issued by thesupreme court in christian Medical college, velloor v.Union of India and Others t2014(2) SCC 3051 by whichnotil=ication described as postgraduate Medical Education(Amendment) Regulations,2010 (hereinafter referred as'2010 Regulations') to effect amendment to postgraduateMedical Edur:ation Regulations, 2000 (hereinafter referred as'2000 Regulations'), by the Medicat Council of India (for short'MCl') directing National Eligibility common Entrance Test(for short'NEET') to be conducterc on an all India basis forPostrgraduate (PG) admissions, ialong with certain othernotifications relating to MBBS, BDS and MDS courses weredeclared to lbe ultra vires the Constitution. paragraphs 177and 178 of C.M.C Velloor (supra) reads as under:

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W.P.Cl.Nos.5 85 8/:20 1 4 & conn.cases

l-77. l, the right of our aforesaid discussions andthe vier4/s expressed in the various decisions cited,we have no hesitation in hording that theRegulations on Graduate Medicar Education(Amendment), 2010 (part tt) and the postgraduateMedical Education (Amendment) Regulation, 2010(Part ll), whereby the Medicar councir of Indiaintroduced the singte Nationat Etigibirity-cum-Entrance rest and the corresponding amendments'in the Dentists Act, Jg4B, are urtra vires theprovisions of Articles Jg(J)(g), 25, 26(a), 2g(J) and-30(1) of the constitution, since they have the effectof denuding the stafes, state-run universities anditll medi

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'MP. Cl.Nos. 5 8 58 f.7,0 1 4 & conn. cases

anything different and are restricted to taying downstandards which are uniformly appticable to altmedical' colleges and institutions in India to ensurethe excellence of medicat education in tndia. Therole ass:igned to MCt under sections l0-A and rg-A(7) of the Jg56 Act vindicates such a conclusion.778. As an offshoot of the above, we also have nohesitati

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'W.P.Cl.Nos.5 85 8/:20 1 4 & conn.cases

examinationr and obtain minimum eligibility marks asprescribed for getting admission to pG Medical/Dentalcourses. Thre commissioner of Entrance Examinations alsoissur:d notification on 05/1L120r3 in that regard, whereincanclidates ,il/ere called upon to obtain minimum eligibilityrnarl{

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'W.P.Cl.Nos. 5 85 8/:20 I 4 & conn.cases

gflreral category, a reduction in the qualifying criteria ismacle with reference to in service candidates in termsclause 4-4.r. Their passing criteria for general categorytr\o/c,, for sc/sr/sEBC it is 35% and for pD it is 40%.5. Ac,cord ing to the petitioners, red ucing thequalifying crriteria from s0% to 45% in respect of servicectruota candidates have affected their avenues for admission

ofis

in s() far as the admissions are based on seniority of thecanclidates depending uponsenior to them will enter thecrbtained 50% marks willadmission.

their service,field and thosenot get an opportunity for

6. Petitioners have raised the following contentions inorder to challenge the aforesaid clause in the prospectus.

i) Th,e Bulletin published by NBE clearly prescribesttre eligibility marks in the qualifying examination as 50%,c,entral Government has approved the same and thereforeState Government has no power to issue prospectus diluting

as more personspersons who had

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'W.P.Cl.No:;. 5 85 8/:10 I 4 & conn.cases

the eligibility criteria and reducing the qualifying marks inthe entrance examination.

ii) When 2010 Regulations isuncclnstitutional by the supreme court, the earlierrevives, which inter alia prescribes 50% marksentrance examination.

declaredpositionfor the

iii) state Government has no power to legislate on thesubj{ect having effect of lowering any standards prescribedby MCI ernd the said clause in the prospectus is unreasonable.iv) Though the state Government has enacted theKerala Medical officers' Admission to post Graduate coursesundelr service Quota Act, 2008 (hereinafter referred to as the'Serrrice Quota Act') in so far as no rules have been framed interms with the procedure prescribed under sub sections (1)and (2) of section 5 of the Act, it is not open for theciovelrnrnent to incorporate an eligibility criteria less thanwhat is prescribed for members of general category.

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W.P.C.Nos.5858/20 I 4 & conn.cases

v) ln the absence of any such rures governing the fierd,the state l^ras no executive power to incorporate such aproltision in the prospectus as such a power is not availablet.o the state Government under Articre L6z of theconr;titution of India especiaily in the right of the statutoryplrovision under Section 25(vi) of the Kerala University ofHealth sciences Act, 2010 (hereinafter referred as ,the KUHSAct') .

7. Counter affidavit issupporting the stand takencontended that Section 5(3)

filed by the State Governmentby them. lt is inter alia

of the Act clearly permits theGovernrnent to provide details for eligibility to admission,duration of course, altotment, fee to be paid, reservation ofseats; etc. in the prospectus before commencement ofadmission. In the absence of a central legislation comingunder Entry i6 of List lof the 7'h Schedule to the Constitutionof India, the state Government has the legislativecompeternce to enact the service euota Act and when the

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'W.P.C.Nor;.5 85 8/:10 1 4 & conn.cases

stat,ute clearly prescribes the authority of the Government topres;cribe an eligibility criteria for candidates in Governmentserv'ice, the prospectus has been issued well within thepowers of the Government.

B, lt is further contended that the 2000 Regulationswas arnended by virtue of 2010 Regulations and the MCIintr

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'il/.P.Cl.No:r.5 858/t10 14 & conn.cases l0

the eligibility criteria of the service candidates were issuedtaking into account the acute dearth of qualified servicequota candidates for admission to Post Graduate MedicalSenricer. Therefore a policy decision had to be taken toincorrpofate Clause 4-4.1 in the prospectus for service quotacanrjidiates illone.9. Learned senior counsel Sri. Kurian GeorgeKannanthanam appearing for the petitioners, first contendedthat the State Government has no authority to issue theImpugned clause in the prospectus as the power to framelaw with rel=erence to admission to post graduate course inmedical education is with the Central Government in termsof Eintry 66 of List l. In so far as already regulations havebeen framed by MCI and though the amended regulationshave been declared to be unconstitutional by the SupremeCourt, Union of India, having insisted for 50% marks in thequalifying examination to be the minimum requirement foreligibility, 'when the field is occupied by the Central

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W.P. C.Nors.5 85 8/,20 1 4 & conn.cases llLegislation, it is not open for the state Government to haveissued a prospectus. Reference is arso made to a DivisionlJench of this court in Mohammed Riaz v. state of Kerala[2011 (2) KL.T 294] in which ir is herd that having regard roEntry 25 of L-ist lll and Entry 66 of List t, state has the right tocontrol education, including medical education so long as thefield is not occupied by any Union legislation and whileprescribing the criteria for admission to the institutions forhigher education including higher medical education, thestate cannot adversely affect the standards laid down by theUnion under Entry 66 of List l. lt is further held that thoughstate can rnake rules for admission, they have to beconsisternt with a nd without adversely affecting thestandards of' education, as are prescribed by the Union inexerr:ise of powers under Entry 66 of List l. lt is also held thatthourgh there could be a separate and exclusive channel offltryt or source of admission for in-service candidates, therehas 1Lo be only one common entrance test for determining

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\M.P.C.Nos;.5 85 8/rl0 1 4 & conn.cases t2

the eligibility for post graduation for in-service candidatesand those not in service. The prescription as to therequirement of an entrance examination with a minimumeligibility bench mark to be acquired in that entrance test for6lostgraduate medical education is within the field coveredby Entry 66 in List I and the competence of the stateLegi:'lature to make a law with reference to Entry 25 in Listlll would not enable it to make any such law encroaching onthe fielcl occupied by Entry 66 in List l.

10. lt is further argued that the state Government,having itccepted the examination conducted by NBE in termsof Ext.l']1 which prescribes 50% qualification for generalcater;ory, there was no reason to make any amendments tothe s;arne in the form of a prospectus. lt is contended thattlre prospectus has been issued after the marks werepublisherd by NBE and therefore it is only for helping certainpersons in service that such a relaxation is made. Theprospectus was issued only on 1810212014 when the marks

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W.P.C.Nos. 5g5g l20l4 & conn.cases laIJwere published on 0LlO2l20I4.

11. with reference to the service euota Act, it iscontended that Section 5(3) only gives power to theGovernment to issue the detairs of erigibirity in theprospectus and does not enable the Government toprescribe the eligibility criteria as no rules have been framedin terms of Section 5(1) and 5(2) of the Act.

12. lt is further argued that in the absence of anystatuto'y provision, Government cannot invoke Articre L6z ofthe Constitution of India, The argument is that the KUHS Acthas been enacted by the Government which gives power tothe University under Section 25(vi) of the Act to prescribeminimum eligibility criteria for all admissions. when thestatute gives power to an authority for prescribing theeligibility for admissions to various courses which includesPG medical courses, it was not open for the Government toinvoke Article L62 of the constitution of India, Learnedsenior counsel relied upon the judgment of the supreme

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W.P.C.Nos.5858/20 I 4 & conn.cases

Court in P.H.5 SCC 2I4].

Paul Manoj Pandian v. p. Veldurai, t(2011)Reference is made to paragraphs 46 and 47

IATT

which reads as under:46. Under Article 162 of the Constitution, theexecutive power of fhe sta te extends to matterswith respect to which the stafe Legislature haspower to make laws. yet the limitations on theexercise of such executive power by theGovernment are twofold; first, if any Act or lawha.s been made by the state Legistature conferringanv function on any other authority, in that casethe: Governor is not empowered to make any orderin regard to that matter in exercise of hisext cutive power nor can the Governor exercisesu

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W.P.C.Nos .5858 120 | 4 & conn.cases l5

executive power under Article J62 of theconstitution to prescribe in the same fietd by anexecutive order. However, it is well recognised thatin matters relating to a particular subject inabsence of any parliamentary tegistation on thesaid subject, the stafe Government has thejurisdiction to act and to make executive orders.The executive power of the sfate would, in theabsence of legislation, extend to making rules ororders regulating the action of the executive. But,such orders cannot offend the provisions of theconstitution and should not be repugnant to anyenactment of the appropriate legistature. subject tofhese limitations, such rures or orders may relate tomatters of policy, may make classification and maydetermine the conditions of eligibitity for receivingany advantage, privilege or aid from the State,,,13, Learned senior counsel sri.Ranjith Thampan

specifically relied on the judgment in Harish verma v. AjaySrivastava t(2003) B scc 691 wherein it is held that thoughin-service candidates formurate a class by themselves forwhom a separate channel of entry has been carved out and

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'W.P.C.No:;.5 85 8/;20 1 4 & conn.cases 16

within the group there may be scope for assigning weightagefor the rural service rendered, for the purpose of determiningthe order of merit inter se, the condition as to minimumqualifying marks as prescribed by the Medical council oflndia cannot be relaxed. lt is further argued that clause 4-4.rof the prospectus is totally unreasonable as there is nodea rth of ca nd idates who become q ua lified in theexamination. lt is pointed out that out of the 5l seats inPost Graduation and 40 seats in Diploma course, there aremore than 200 service quota candidates who were qualifiedand having more than 50%,

14. The learned counsel sri.p.K.Vijayamohanan andsri,sialim P.A, reiterated the arguments of the seniorcounsels.

15. The learned senior Government pleader,sri.Roshen D.Alexander argued that the state has thelegislative competence to enact a special Statute for the servicecandidates under Entry 25 of List 3. The validity of the Act

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WP.C.Nos. 5859 /201 4 & conn.cases I7

has not been challenged in any manner and by virtue ofsectiorr 5(3) of the Act, the state Government is entifled topublish prospectus showing the eligibility criteria ofcandidates in service quota. 40% seats of pG Medicarcourses is reserved for candidates from state Governmentservice and among which it is possible for the Government topre:;cribe an eligibility criteria. The guidelines issued by NBEfor the 2014 examination is not a legislation in terms ofEntry 66 of List l and in that event, since the field is notoccupied by any statute of the central Government, it isopen for the State Government to prescribe eligibility criteriafor the service candidates. Reference is also made to theorderr issued by the Government proposing to treat theexarnination conducted by NBE as a qualificationexarnination for Degree as well as post graduate medicaladmission, But it is made crear that the said examinationwill be subject to the state's power to fix admission as wellas eligibility criteria. Reference is made to the constitution

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