P.K. Lohra, J
Challenge to the vires of Rule 21(3) of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (for short, hereinafter referred to as ‘Rules
of 1962’) by Dr. Dalpat Singh Rajpurohit, petitioner in D.B. Civil Writ Petition No.4350/12, suffered hiccup when a judgment rendered by Division
Bench at Jaipur in D.B. Civil Writ Petition No.18662/12 (Dr. Swati Panwar Vs. State of Rajasthan & Ors.) dated 13th of December 2013 declaring
Rule 21(3) of the Rules of 1962 intra-vires is brought to its notice.
2. Although judgment of the Coordinate Bench in Dr. Swati Panwar (supra) caused serious jolt to the espoused cause, however, the writ-petitioner
persisted with his challenge to the vires of the Rule by taking shelter of some other grounds, which according to him were not canvassed before the
Division Bench earlier. Considering the arguments of learned Senior Counsel, appearing for the writ-petitioner, substantial & weighty, the Division
Bench vide its order dated 14th of March, 2018 formulated questions requiring consideration by Larger Bench. Thereupon, the Chief Justice was
pleased to constitute the Larger Bench for answering following three questions:
1. Whether rule 21(3) is liable to be declared unconstitutional as it amounts to double jeopardy as far as consideration of candidature of in-service
candidates like the petitioner for direct recruitment to the teaching positions under the Rules of 1962 is concerned?
2. Whether the State while enacting law under proviso to Article 309 of the Rules of 1962 (Entry 25 of List III of Schedule VII under Article 246 of
the Constitution of India) could transgress the norms prescribed under the Regulations of 1998 framed by Medical Council of India through
subordinate Legislation of Central Legislation (Entry 66 of List I of Schedule VII under Article 246 of the Constitution of India) more particularly in
view of the Authoritative pronouncements of Hon’ble Apex Court in the judgments delivered in the case of UOI Vs. Shah Goverdhanlal Kabra
Teachers College (reported in 2002 (8) SCC 228) and Sudhir N. Vs. State of Kerala (reported in 2015 (6) SCC 685)?
3. Whether there exist any rational basis based on quantifiable date which could show that the State has been successful in achieving the goal of
population control vide enactment of such regressive provision in the form of Rule 21(3) of the Rules of 1962?
3. Upon hearing learned counsel for the parties and objective analysis of the grounds set out in the writ petition to assail vires of impugned rule, we are
skeptical about emergence of referred Questions No.1 & 3 in the matter. Therefore, at the threshold, it would be just and appropriate to examine
propinquity of these two questions in the factual backdrop.
4. Learned Senior Counsel, Mr. M.S. Singhvi, though initially persisted to examine and answer Question No.1 but later on abandoned it with a request
to reframe/alter the same. Therefore, before taking up Question No.3, at this juncture, acceding to the plea of learned Senior Counsel for the writ-
petitioner, we feel persuaded to objectively examine it.
5. Mr. Singhvi contends that Court is empowered to alter or reframe the question for doing substantial justice. Learned Senior Counsel would contend
that rigor of the impugned rule requires judicial scrutiny in the light of its adverse ramification on service career of the writ-petitioner. Learned Senior
Counsel, further elaborating his submissions in this behalf, has urged that, in the light of fact scenario, legitimate grievances of the writ-petitioner
against impugned rule, which debars an incumbent for direct recruitment in the services and also creates an embargo for some duration in career
advancement, is yet another plausible reason for reframing of the question to settle the law in an authoritative way. To substantiate his arguments,
learned Senior Counsel has placed reliance on following precedents:
(1) Indra Sawhney & Others Vs. Union Of India [1992 Supp (3) SCC 210]
(2) Supreme Court Advocates-on-record Association & Anr. Vs. Union of India [(2016) 5 SCC 1].
6. Per contra, Mr. Rajesh Panwar, learned Addl. Advocate General, submits that after decision of the Division Bench in Dr. Swati Panwar (supra),
there was hardly any occasion for the Division Bench to make reference in the matter, and therefore, reframing Question No.1 is not at all warranted.
Learned Addl. Advocate General would contend that besides untenability of Question No.1, upon objective consideration of the available material, no
reasons are forthcoming for alteration/reframing of the question.
Heard.
7. Well it is true that in appropriate cases, a Larger Bench, while dealing with the questions referred for its consideration, can alter or reframe
questions, but such power of the Larger Bench is exercisable depending on fact situation of an individual case. A referral Court is normally abreast
with the facts and circumstances of the case besides lis involved therein, therefore, it is prerogative of that Court to formulate the question requiring
authoritative answer of the Larger Bench. Be that as it may, with myopic vision also, we are afraid, reframing of the referred Question No.1 per se
appears improbable on the touchstone of lis involved in the matter so as to make the said exercise.
8. In common parlance, direct recruitment in services and promotion have no concomitance in the criteria but for right of an eligible candidate to be
considered. It is further clarified that right of consideration of an individual aspirant for job and promotion stand circumscribed by the eligibility criteria,
parameters and yardsticks laid down under the rules, prescribing conditions for adjudging suitability of an individual. The concept of double jeopardy in
abstract sense is oxymoron to service jurisprudence, as such, unhesitatingly, in our opinion, neither plausible alteration or reframing of Question No.1 is
in the sight, nor appears necessary and expedient. It may also be observed here that invocation of any other concept akin to double jeopardy doctrine,
in overall scenario, is per se a far cry though sounds euphonious. That being the position, we feel exercising power to alter/reframe referred Question
No.1 would be simply paradoxical to ethos of service jurisprudence. Therefore, upon appreciation of the arguments advanced by learned counsel for
the writ-petitioner and considering ratio decidendi of the legal precedents cited in this behalf, we feel disinclined to accede to the plea of learned
counsel for the writ-petitioner.
9. Now, switching on to the third question, we feel that formulation of this question too appears improbable in the factual background of the case. For
adjudging vires of any statutory provision or a subordinate legislation, unquestionably, non-achievement of the object behind its enactment cannot be a
criteria, much less plausible and sound criteria in legal parlance. Not proving efficacy for the solemn object behind enactment of any law too is hardly
a ground to question its validity. As a matter of fact, while examining vires of any statutory provision, Court’s duty is to see its rationality, source
of the authority enacting the same, and possible mischief apparent in the statutory provision touching fundamental right of a citizen. Thus, we are
firmly of the view that significance of Question No.3 is not forthcoming, and therefore, cannot be made subject matter of judicial scrutiny by the
Larger Bench.
10. Even otherwise, for framing the aforesaid question, there is no factual foundation in the writ petition. In absence of quantifiable data available on
record, it is rather difficult to comprehend failure of the legislation, much less its efficacy for the object with which it was enacted. The writ-petitioner
did not set out a case precisely on the said anvil, nor the State joined issue in its reply, has also completely watered down this question. By taking
assumed lack of efficacy of the impugned legislation, we are afraid, the referred question is unforeseeable. With these observations, we conclusively
record satisfaction that Question No.3 is not emerging out in the factual backdrop and therefore, requires no adjudication.
The conclusions, arrived at by us supra, have cleared the decks to make judicial review of referred Question No.2.
11. Learned Senior Counsel submits that as per Entry 66, List I of VII Schedule of the Constitution, power to legislate for coordination and
determination of standards in institutions for higher education or research and scientific and technical institutions is sole prerogative and repository of
the Parliament alone and not the State Legislators. Mr. Singhvi would contend that impugned Rule 21(3) of the Rules of 1962 is in clear derogation to
the Medical Council of India Act, 1956 (for short, ‘Act of 1956’) and the statutory regulations framed thereunder in exercise of power under
Section 33 of the said Act. Mr. Singhvi has argued that the impugned rule legislated by the State is ex-facie beyond legislative competence. Relying on
Article 246 of the Constitution, Mr. Singhvi contends that it is a clear case of transgression of legislative powers by the State. Learned Senior Counsel,
while assailing the impugned rule, has contended that State Government is not empowered to lay down minimum qualifications for teachers in medical
institutions including disqualifications dehors the Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (for short,
‘Regulations of 1998’).
12. Mr. Singhvi has urged that as mandated by Article 246 of the Constitution, the Parliamentary Legislation would prevail notwithstanding exclusive
power of the State Legislature to make laws with respect to matters enumerated in the State List. Mr. Singhvi submits that if doctrine of “Pith &
Substance†is invoked, it would clearly emerge out that State Legislation has encroached upon matters, which have been assigned to another
legislature.
Mr. Singhvi contends that when qualifications for Teachers in medical institutions are envisaged and regulated by the Regulations of 1998, State
Legislature is not empowered to prescribe any disqualification either for direct recruitment or for promotion dehors the Regulations of 1998. Learned
Senior Counsel has also referred to Sections 20 & 21 of the Act of 1956 with special emphasis on clauses (j), (k), and (l) of Section 33 of the Act of
1956 for substantiating his arguments to invoke doctrine of “Pith & Substance†vis-á-vis Entry 41, List II of the VII Schedule. In support of his
arguments, learned counsel has placed reliance on following judgments:
(1) Union of India (UOI) & Ors. Vs. Shah Goverdhan L. Kabra Teachers [(2002) 8 SCC 228] College
(2) Medical Council of India Vs. State of Karnataka & Ors. [(1998) 6 SCC 131]
(3) R.K. Goyal (Dr.) Vs. State of U.P. & Ors.[(1996) 11 SCC 658]
(4) State of Karnataka & Ors. Vs. H. Ganesh Kamath & Ors. [(1983) 2 SCC 402]:AIR 1983 SC 550.
(5) Sudhir N. & Ors. Vs. State of Kerala [(2015) 6 SCC 685]
(6) Supreme Court judgment dated 2nd of May, 2001 in Kidwai Memorial Institute of Oncology Vs. State of Karnataka
(7) Dr. Shadab Ahmed Khan & Ors. Vs. Mujahid Beg & Ors. [(2018) 6 SCC 385]
(8) Balvinder Singh Thakkar & Ors. Vs. State of Rajasthan & Ors. [RLW 2008 (1) Raj. 836].
13. E.converso, learned Addl. Advocate General Mr. Panwar submits that Rules of 1962 are framed by the State in exercise of powers conferred
under proviso to Article 309 of the Constitution, and therefore, being primary legislation, Regulations of 1998 has to yield before it as a subordinate
legislation. Learned Addl. Advocate General submits that under proviso to Article 309 of the Constitution, Governor of the State is competent to make
rule regulating recruitment and conditions of service of persons appointed to the State services by virtue of Entry 41, List II of VII Schedule.
Elaborating his submissions in this behalf, learned Addl. Advocate General has urged that the Act of 1956 is essentially enacted by the Parliament to
regulate Graduate and Post-Graduate Medical Education and standard of such education throughout India, and not to make rules regulating
recruitment and conditions of service of persons appointed to State services, which is within the sole domain and power of the concerned State.
14. Mr. Panwar further contended that the Rules of 1962 are framed under proviso to Article 309 of the Constitution by resorting to Entry 41, List II
of VII Schedule, and therefore, it is unthinkable that State Legislature has encroached upon matters which have been assigned to Central Legislature.
He would, therefore, contend that in the backdrop of facts and circumstances of the case, romping in doctrine of “Pith & Substance†is wholly out
of context. Alternatively, Mr. Panwar has urged that even by invoking doctrine of “Pith & Substanceâ€, when the enactment, i.e., Rules of 1962,
clearly falls within any of the matters assigned to the State Legislature, mere incidentally touching or encroaching on the Union’s subject cannot
invalidate it. Learned Addl. Advocate General also submits that although for maintaining standard and regulating medical education Union Legislature
has primacy under Entry 66, List I, but State’s power to legislate in certain areas is also duly recognized under Entry 25, List III of Schedule VII.
He, therefore, argued that while examining repugnancy of a State enactment vis-ā-vis Union Legislation, a pragmatic rather than pedantic and purely
idealistic approach is expected from Courts. In support of his contentions, learned Addl. Advocate General has placed reliance on following judgments:
(1) Jagdish Prasad Sharma & Ors. Vs. State of Bihar & Ors.[(2013) 8 SCC 633]
(2) Bhuwalka Steel Industries Ltd. Vs. Bombay Iron and Steel Labour Board [(2010) 2 SCC 373].
We have bestowed our considerations to the arguments.
15. With a view to arrive at just conclusion, facilitating appropriate answer to Question No.2, we have made sincere endeavour to examine every
provision of law threadbare. Therefore, in our pursuit to cut to the chase, at the threshold, it would be just and proper to analyze relevant Entries in all
the three Lists of Schedule VII.
Essentially, learned Senior Counsel, appearing for the writ-petitioner, has embarked on Entry 66, List I of Schedule VII of the Constitution, which
reads as under:
 “66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.â€
Likewise, Entry 25 List III of Schedule VII envisage following recitals:
“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.â€
Thus, a unison reading of Entry 66 of List I and Entry 25 of List III makes it abundantly clear that Central Legislature as well as State Legislature is
endowed with power to legislate on the subject but for restriction vis-á-vis powers of the State Legislature to enact a law subject to the provisions of
Entry 63, 64, 65 and 66 of List I. In juxtaposition to these two entries in List I & III respectively, Entry 41, List II confers power on the State
Legislature to legislate in respect of “State Public Services; State Public Service Commissionâ€.
16. The above Entry is of wide amplitude and includes the power of creation and abolition of posts, integration or reorganization of the services and
laying down conditions of service. Constitution Bench of Supreme Court in I.N. Saksena & Ors. Vs. State of Madhya Pradesh [(1976) 4 SCC 750],
while examining the area of legislative competence under Entry 41 List II construed the same in widest possible amplitude and held:
“32. It is well settled that the entries in these legislative lists in Schedule VII are to be construed in their widest possible amplitude, and each
general word used in such entries must be held to comprehend ancillary or subsidiary matters. Thus considered, it is clear that the scope of Entry 41 is
wider than the matter of regulating the recruitment and conditions of service of public servants under Article 309. The area of legislative competence
defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309. By virtue of Articles 246, 309 read with Entry 41 List
II, therefore, the State Legislature had legislative competence not only to change the service conditions of State civil servants with retrospective effect
but also to validate with retroactive force invalid executive orders retiring the servants, because such validating legislation must be regarded as
subsidiary or ancillary to the power of legislation on the subject covered by Entry 41.â€
17. At this stage, we propose to examine the true ambit and scope of Entry 66 List I with pragmatic approach.
A bare reading of Entry 66 makes it abundantly clear that coordination and determination of standards in institutions for higher education or
research/scientific and technical institutions is exclusively within the ambit of legislative power of Parliament and the State has no power to encroach
upon it. The expression “Co-ordination†means harmonization with a view to form a unique pattern for a concerned action according to certain
design, scheme or plan of development. Besides that, by virtue of Entry 66, List I, State’s competence to enact a law on Entry 25, List III to
control or regulate higher eduction is subject to the standards laid down by Union of India or its delegate, as such teaching, quality of education being
imparted, curriculum, standard of examination and evaluation and also research activity carried on shall remain within the competence of Parliament
alone and not the State Legislature. This sort of situation pre-supposes that when the Medical Council of India has prescribed
minimum marks for admission to Post-graduate medical courses, exercising its power under Entry 66, List I, the University or the Government shall
not unilaterally dilute the same.
The overall scenario, which has emerged is that even expansive meaning to Entry 66, List I, it is rather difficult to comprehend that the same covers
within its ambit power to legislate or make rules regulating recruitment, conditions of service of persons appointed to State services in adherence of
Entry 41, List II. However, State while enacting such rules is expected to comply with the regulations made by the apex body governing higher
education or research and scientific and technical institutions to maintain high standard of such education.
18. In Shah Goverdhan L. Kabra Teachers College (supra), Supreme Court, while dealing with Section 17(4) and 14 of the National Council for
Teacher Education Act, 1993 (for short, ‘Act of 1993’) clarified that State Government cannot legislate for invalidating the qualification in
teacher education obtained from an unrecognized institution as being within the legislative competence of Parliament under Entry 66 of List I. By
explaining and applying the doctrine of “Pith & Substanceâ€, the Court held:
“8. Bearing in mind the aforesaid principles of rule of construction, if the provisions of the impugned statute, namely, the National Council for
Teacher Education Act, 1993 are examined and more particularly Section 17(4) thereof which we have already extracted, the conclusion is irresistible
that the statute is one squarely dealing with coordination and determination of standards in institutions for higher education within the meaning of Entry
66 of List I of the Seventh Schedule. Both Entries 65 and 66 of List I empower the Central Legislature to secure the standards of research and the
standards of higher education, the object behind them being that the same standards are not lowered at the hands of the particular State or States to
the detriment of the national progress and the power of the State Legislature must be so exercised as not to directly encroach upon power of the
Union under Entry 66. The power to coordinate does not mean merely the power to evaluate but it means to harmonise or secure relationship for
concerted action. A legislation made for the purpose of coordination of standards of higher education is essentially a legislation by the Central
Legislature in exercise of its competence under Entry 66 of List I of the Seventh Schedule and sub-section (4) of Section 17 merely provides the
consequences if an institution offers a course or training in teacher education in contravention of the Act though the ultimate consequences under sub-
section (4) of Section 17 may be that an unqualified teacher will not be entitled to get an employment under the State or Central Government or in a
university or in a college. But by no stretch of imagination can the said provision be construed to mean a law dealing with employment as has been
held by the High Court in the impugned judgment.
9. In our considered opinion, the High Court committed gross error in construing the provisions of sub-section (4) of Section 17 of the Act to mean that
it is a legislation dealing with recruitment and conditions of service of persons in the State service within the meaning of proviso to Article 309 of the
Constitution. The High Court committed the aforesaid error by examining the provisions of sub-section (4) on its plain terms without trying to examine
the true character of the enactment which has to be done by examining the enactment as a whole, its object and scope and effect of the provisions.
Even the High Court does not appear to have applied the doctrine of “pith and substance†and, thus, committed an error in interpreting the
provisions of sub-section (4) of Section 17 to mean to be a provision dealing with conditions of service of an employee under the State Government.
10. In the aforesaid premises, the conclusion of the High Court that Section 17(4) is ultra vires being beyond the competence of the Union Legislature
cannot be sustained and the said conclusion is accordingly set aside. On examining the statute as a whole and on scrutiny of the object and scope of
the statute, we have no manner of doubt that even sub-section (4) of Section 17 is very much a law dealing with the coordination and determination of
standards in institutions for higher education coming within Entry 66 of List I of the Seventh Schedule and, thus, the Union Legislature did have the
competence for enacting the said provision.â€
A bare reading of above-quoted Paras 8 & 10 of the judgment leave no room of doubt that Section 17(4) of the Act of 1993 is squarely dealing with
coordination and determination of standards in institutions for higher education and not dealing with recruitment and conditions of service of the
persons in State service within the meaning of proviso to Article 309 of the Constitution. Therefore, dictum of this verdict cannot render any
assistance to the writ-petitioner and its ratio has no bearing on the referred question.
19. In R.K. Goyal(Dr.) (supra), Supreme Court, while considering the regulations framed by Medical Council of India with respect to qualifications for
appointment as teachers in medical colleges, observed that in order to maintain high standard of medical education, State Governments are expected to
comply with the recommendations made by Medical Council from time to time. The Court held:
“8. It was contended on behalf of Respondent 4 that only the 1970 recommendations can be regarded as binding as they have received the
sanction of the Government and have become regulations under the Indian Medical Council Act. As the subsequent recommendations of the Council
have not been approved by the Central Government they cannot be said to have replaced the regulations of 1971 and, therefore, they have no binding
force. We find no substance in this contention because even the regulations framed by the Medical Council with respect to the qualifications
recommended for appointment as teachers in Medical Colleges are only directory in nature as held by this Court in Ganga Prasad Verma (Dr) v. State
of Bihar. It is really within the domain of the State Government to prescribe qualifications for appointment to various posts in State Services. Though
recruitment to the State Medical Services falls within the purview of the State Government, they are expected to comply with the regulations made by
the Council in order to maintain high standard of medical education as held by this Court in Ajay Kumar Singh v. State of Bihar and Govt. of A.P. v.
Dr R. Murali Babu Rao. Section 19-A of the Indian Medical Council Act enables the Council to prescribe by making regulations minimum standards
of medical education required for granting recognised medical qualifications by Universities or Medical Institutions in India and that would include
prescribed minimum qualifications for appointment as teachers of medical education. As State Governments are thus expected to comply with the
recommendations made by the Medical Council from time to time and if the State Governments comply with such recommendations irrespective of
whether they are approved by the Central Government or not, it cannot be said that in doing so they have acted arbitrarily or illegally.â€
The aforesaid precedent too is not dealing with the legislative competence of State or powers to make rules under proviso to Article 309 of the
Constitution regarding recruitment and conditions of service of persons in the State service, therefore, clearly distinguishable.
20. In Sudhir N. & Ors. (supra), Supreme Court has essentially embarked on Entry 66, List I and Entry 25 List III of Schedule VII to determine
legislative competence of Union and provincial legislature under Articles 246 and 254. The Court, in the event of repugnancy vis-a-vis standards and
eligibility criteria laid down By the Centre for post-graduate medical education vide Regulations of 1956 and State legislature, affirmatively declared
primacy of subordinate legislation enacted under primary central legislation over primary State legislation. Court held:
“20. In Preeti Srivastava 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 III by a Central legislation. A Constitution Bench of this Court by majority held that standard of education and admission criteria
could be laid down under Entry 66 of List I and under Entry 25 of List III. 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 the maximum marks to be obtained in the entrance test for admission to the institutions for higher education including higher medical
education are fixed, the State cannot adversely affect the standards laid down by the Union Government. It was held that it is for MCI to determine
reservation to be made for SC/ST and OBC candidates and lowering the qualifying marks in their favour on the pretext or pretence of public interest.
21. Speaking for the majority, Sujata V. Manohar, J. summed up the legal position as under: (Preeti Srivastava case, SCC pp. 153-55, paras 35-36)
35. “The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the Seventh
Schedule to the Constitution. In the Seventh 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 provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III’.
Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution (Forty-second
Amendment) Act of 1976. The present Entry 25 in the Concurrent List is as follows:
‘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.’
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 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 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 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 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. Secondly,
while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university
education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in
this field, except as provided in Article 254.
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 III. Norms of admission can have a direct impact on the standards of education. Of course, 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 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 an
institution or college depend on various factors. Some of these are:
(1) the calibre of the teaching staff;
(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 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;
(7) adequate accommodation for the college and the attached hospital; and
(8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.â€
(emphasis supplied)
22. This Court in Preeti Srivastava case 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 postgraduate medical education. These Regulations are binding and the States cannot,
in exercise of their power under Entry 25 of List III, make any rules which are in conflict with or adversely impinge upon the Regulations made by
MCI. Since the standards laid down are in exercise of power conferred 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: (Preeti Srivastava case, SCC p. 162, paras 52-53)
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 alia, standards of postgraduate medical education. In the exercise of its
powers under Section 20 read with Section 33 the IndianMedical 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 III, make 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 Entry 66 of List I, the exercise of that power is exclusively within the domain of
the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I.
53. Secondly, it is not the exclusive power of the State to 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 III will also be subject to any existing relevant
provisions made in that connection by the Union Government subject, of course, to Article 254.â€
In the backdrop of lis involved in the matter, we are afraid, this judgment has no relevance vis-á-vis question under adjudication.
21. Dr. Shadab Ahmed Khan & Ors. (supra), yet another judgment of Supreme Court, on which learned Senior Counsel has placed reliance,
essentially deals with dichotomy between two central legislations, viz., University Grants Commission Act, 1956 and Act of 1956, in relation to
determination of eligibility criterion for promotion to the post of Professor in a medical college affiliated to Aligarh Muslim University. The Court, while
dealing with the UGC Regulations of 2010 and the MCI Regulations, found that teaching staff working in medical colleges would be governed by the
Regulations framed by MCI. The Court held:
 “10. The UGC has to be blamed for the confusion that was created in determining the eligibility criterion for promotion to the post of Professor.
The counsel for the UGC appearing in the High Court relied upon Clause 6.4.8 of the UGC Regulations and argued that PhD was required for
promotion to the post of Professor in a medical college. A counter-affidavit was filed before us on 24-10-2016 taking the same stand. The UGC filed
an additional counter-affidavit in November 2016 in which they corrected the mistake committed earlier and stated that the qualifications for the
teaching post in the Faculty of Medicine shall be those prescribed by the Ministry of Health and Family Welfare in consultation with the statutory
Council i.e. Medical Council of India. We are unable to accept the contention of the respondent that the MCI Regulations are not applicable as the
UGC Regulations speak of Regulations to be framed by the Ministry of Health and Family Welfare, Government of India.
11. The High Court relied upon the submissions of the counsel for the UGC to hold that the appellants and Respondents 6 and 7 could not be promoted
to the post of Professor under the career advancement scheme without possessing the qualification of PhD. Further, the High Court committed an
error in its interpretation of Clause 12(19) of the amended Ordinances (Executive). As noted above, Clause 12(19) states that the qualifications for
Faculty of Medicine are to be prescribed by MCI. Clause 12(19) provides that candidates can apply for promotion under the Ordinances subject to
their fulfilling other conditions as laid down in the Ordinances.
12. The High Court wrongly held that fulfilment of other conditions as laid down in the Ordinances (Executive) would include Clause 12(5) which
mandates a PhD degree for promotion to the post of Professor. The qualifications that are required for promotion to the post of Professor in a medical
college are not governed by the Regulations as is clear from Clause 1.1.1 of the UGC Regulations, 2010.
13. The other conditions laid down in the Ordinances (Executive) are with reference to Clauses 12(6) to 12(18) and not Clause 12(5). The finding of
the High Court that the teaching staff in the medical college should have qualification as prescribed in Clause 12(5) would be rendering Clause 12(19)
otiose. Clause 6.4.8 and Clause 12.5 are inapplicable to the teaching staff working in medical colleges as they would be governed by the Regulations
framed by MCI.
14. The High Court did not adjudicate the other points raised by Respondent 1 in the writ petition in view of the finding recorded by it on the point of
the ineligibility of the appellants and Respondents 6 and 7 for promotion to the post of Professor.
15. For the reasons mentioned above, we hold that the conclusion of the High Court that PhD is required for promotion to the post of Professor in a
medical college is not correct. We set aside the judgment of the High Court and remand the matter back for consideration of the other points raised by
Respondent 1. The writ petition stands restored.â€
An objective scrutiny of the ratio decidendi of the aforesaid judgment, unhesitatingly, in our view, do not render any assistance to the cause of writ-
petitioner.
22. Supreme Court, in the matter of Medical Council of India Vs. State of Karnataka & Ors.(supra), while dealing with the power of State to regulate
admissions to medical colleges, rejected its plea and declined to accept that power is prerogative of the State. The Court has further clarified that in
the matter of regulating admissions in the medical colleges as well as Dental Colleges, authority of the Medical Council under the Indian Medical
Council Act would equally apply to the colleges under the Dentists Act. The Court held:
“30. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical
college or institution, it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the
Medical Council. In our opinion, the learned Single Judge was right in his view that no medical college can admit any student in excess of its admission
capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10-A, 10 -B and 10-C
will prevail over Section 53(10) of the State Universities Act and Section 4(1)( b) of the State Capitation Fee Act. To say that the number of students
as permitted by the State Government and/or the university before 1-6-1992 could continue would be allowing an illegality to perpetuate for all time to
come. The Division Bench, in our opinion, in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or
decrease in each of the medical colleges/institutions has got to be determined as on or before 1-6-1992 with reference to what had been fixed by the
State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed
under Section 19-A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jain case does not say that all the
regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that
only future admissions will have to be regulated on the basis of the capacity fixed or determined by the Medical Council. The plea of the State
Government that power to regulate admission to medical colleges is the prerogative of the State has to be rejected.
31. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council
under the Dentists Act.â€
Therefore, this verdict too cannot render any assistance to the writ-petitioner.
Likewise, judgment of the Supreme Court in the matter of Kidwai Memorial Institute of Oncology and Division Bench judgment of this Court in
Balvinder Singh Thakkar & Ors. (supra) have no ramification on the question referred and therefore clearly distinguishable.
23. In the matter of Jagdish Prasad Sharma & Ors.(supra), Supreme Court had the occasion to consider law framed by State Government regulating
service conditions of teachers and other staff of the State Universities/Colleges vis-á-vis Regulations framed by UGC. In that context, the Court
delved deep into the matter in construing Articles 309, 246 & 254 of Schedule VII, List I, Entry 66 and List II, Entry 25. Acknowledging the power of
the State to enact any law pertaining to service conditions of teachers and staff of the State Universities, the Court held:
“70. The authority of the Commission to frame regulations with regard to the service conditions of teachers in the Centrally-funded educational
institutions is equally well-established. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been
left to the discretion of the State Governments. The concern of the State Governments and their authorities that UGC has no authority to impose any
conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by UGC relate to Schedule VII
List I Entry 66 to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States
under Article 309 of the Constitution. Under List III Entry 25, the State is entitled to enact its own laws with regard to the service conditions of the
teachers and other staff of the universities and colleges within the State and the same will have effect unless they are repugnant to any Central
legislation.â€
The Court further agreeing with the submission of the State counsel observed that State Governments are also entitled to legislate with matters
relating to education under List III, Entry 25 so long as State legislation does not encroach upon the jurisdiction of the Parliament. The Court held:
“77. We are inclined to agree with such submission mainly because of the fact that in the amended provisions of Section 67( a) it has been
categorically stated that the age of superannuation of non-teaching employees would be 62 years and, in no case, should the period of service of such
non-teaching employees be extended beyond 62 years. A difference had been made in regard to the teaching faculty whose services could be
extended up to 65 years in the manner laid down in the University Statutes. There is no ambiguity that the final decision to enhance the age of
superannuation of teachers within a particular State would be that of the State itself. The right of the Commission to frame regulations having the
force of law is admitted. However, the State Governments are also entitled to legislate with matters relating to education under List III Entry 25. So
long as the State legislation did not encroach upon the jurisdiction of Parliament, the State legislation would obviously have primacy over any other law.
If there was any legislation enacted by the Central Government under List III Entry 25, both would have to be treated on a par with each other. In the
absence of any such legislation by the Central Government under List III Entry 25, the regulations framed by way of delegated legislation have to yield
to the plenary jurisdiction of the State Government under List III Entry 25.â€
24. Apex Court, in the matter of Ajay Kumar Singh & Ors. Vs. State of Bihar & Ors. [(1994) 4 SCC 401], while harmonizing Entry 66, List I and
Entry 25 of List III, observed that Entry in List I should not be so construed as to rob the relevant entry in List II & III with all its contents and
substance. The Court held:
“Reference in this connection may also be made to another well-settled principle - affirmed in Calcutta Gas Co. (Proprietary) Ltd. v. State of West
Bengal to wit: ""every attempt should be made to harmonize 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 equally to a case where
an entry in List-II or List-III is made subject to an Entry in List-I. The entry concerned in List-I should not be so construed as to rob the relevant entry
in List-II or List-III 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 (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 in Entry 25 of List-III.
Even if one relates the Indian Medical Council Act to Entry 25 of List III 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 on 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.
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 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.â€
While acknowledging the medium of instruction, within the purview of Entry 66, List I, under the head of coordination and determination of standard in
institutions of higher education or research and scientific & technical institutions, the Court further held:
“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
expression ""subject to"" in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be
undertaken by the State Legislatures....The two entries undoubtedly overlap : but to the extent of overlapping, the power conferred by item 66 List I
must prevail over the power of the State under item 11 of List II ....Under items 63 to 65 the power to legislate in respect of medium of instruction
having regard to the width of those items, must be deemed to 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 falling within determination and coordination of standards of higher education 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 of List-I. Accordingly, it was held
that the State Legislature was not competent to legislate in that behalf. We see no conflict between the said decision and the decision in Nivedita
Jain.â€
25. Constitution Bench of Supreme Court, in Modern Dental College & Research Centre & Ors. Vs. State of Madhya Pradesh & Ors. [(2016) 7
SCC 353], while considering the ambit and scope of Entry 66 in List I as well as Entry 25 in List II, clarified very specific and limited scope of the
former, namely, maintaining uniform standard of education in the fields of research, higher education, scientific and technical education. The Court
held:
“To our mind, Entry 66 in List I is a specific Entry having a very specific and limited scope. It deals with co-ordination and determination of
standards in institution of higher education or research as well as scientific and technical institutions. The words 'co-ordination and determination of
standards' would mean laying down the said standards. Thus, when it comes to prescribing the standards for such institutions of higher learning,
exclusive domain is given to the Union. However, that would not include conducting of examination, etc. and admission of students to such institutions
or prescribing the fee in these institutions of higher education, etc. In fact, such co-ordination and determination of standards, insofar as medical
education is concerned, is achieved by Parliamentary legislation in the form of Medical Council of India Act, 1956 and by creating the statutory body
like Medical Council of India (for short, 'MCI') therein. The functions that are assigned to MCI include within its sweep determination of standards in
a medical institution as well as co-ordination of standards and that of educational institutions. When it comes to regulating 'education' as such, which
includes even medical education as well as universities (which are imparting higher education), that is prescribed in Entry 25 of List III, thereby giving
concurrent powers to both Union as well as States. It is significant to note that earlier education, including universities, was the subject matter of Entry
11 in List II5. Thus, power to this extent was given to the State Legislatures. However, this Entry was omitted by the Constitution (Forty-Second
Amendment) Act, 1976 with effect from July 03, 1977 and at the same time Entry 25 in List II was amended6. Education, including university
education, was thus transferred to Concurrent List and in the process technical and medical education was also added. Thus, if the argument of the
Appellants is accepted, it may render Entry 25 completely otiose. When two Entries relating to education, one in the Union List and the other in the
Concurrent List, co-exist, they have to be read harmoniously. Reading in this manner, it would become manifest that when it comes to co-ordination
and laying down of standards in the higher education or research and scientific and technical institutions, power rests with the Union/Parliament to the
exclusion of the State Legislatures. However, other facets of education, including technical and medical education, as well as governance of
universities is concerned, even State Legislatures are given power by virtue of Entry 25. The field covered by Entry 25 of List III is wide enough and
as circumscribed to the limited extent of it being subject to Entries 63, 64, 65 and 66 of List I.
Most educational activities, including admissions, have two aspects: The first deals with the adoption and setting up the minimum standards of
education. The objective in prescribing minimum standards is to provide a benchmark of the caliber and quality of education being imparted by various
educational institutions in the entire country. Additionally, the coordination of the standards of education determined nationwide is ancillary to the very
determination of standards. Realising the vast diversity of the nation wherein levels of education fluctuated from lack of even basic primary education,
to institutions of high excellence, it was though desirable to determine and prescribe basic minimum standards of education at various levels,
particularly at the level of research institutions, higher education and technical education institutions. As such, while balancing the needs of States to
impart education as per the needs and requirements of local and regional levels, it was essential to lay down a uniform minimum standard for the
nation. Consequently, the Constitution makers provided for Entry 66 in List I with the objective of maintaining uniform standards of education in fields
of research, higher education and technical education.
The second/other aspect of Education is with regard to the implementation of the standards of education determined by the Parliament, and the
Regulation of the complete activity of Education. This activity necessarily entails the application of the standards determined by the Parliament in all
educational institutions in accordance with the local and regional needs. Thus, while Entry 66 List I dealt with determination and coordination of
standards, on the other hand, the original Entry 11 of List II granted the States the exclusive power to legislate with respect to all other aspects of
education, except the determination of minimum standards and coordination which was in national interest. Subsequently, vide the Constitution (Forty-
second Amendment) Act, 1976, the exclusive legislative field of the State Legislature with regard to Education was removed and deleted, and the
same was replaced by amending Entry 25, List III, granting concurrent powers to both Parliament and State Legislature the power to legislate with
respect to all other aspects of Education, except that which was specifically covered by Entry 63 to 66 of the List I.
No doubt, in Bharti Vidyapeeth it has been observed that the entire gamut of admission falls under Entry 66 of List I. The said judgment by a Bench of
two Judges is, however, contrary to law laid down in earlier larger Bench decisions. In Gujarat University, a Bench of five Judges examined the scope
of Entry 2 of List II (which is now Entry 25 of List III) with reference to Entry 66 of List I. It was held that the power of the State to legislate in
respect of education to the extent it is entrusted to the Parliament, is deemed to be restricted. Coordination and determination of standards was in the
purview of List I and power of the State was subject to power of the Union on the said subject. It was held that the two entries overlapped to some
extent and to the extent of overlapping the power conferred by Entry 66 of List I must prevail over power of the State. Validity of a state legislation
depends upon whether it prejudicially affects 'coordination or determination of standards', even in absence of a union legislation. In R. Chitralekha v.
State of Mysore : (1964) 6 SCR 368, the same issue was again considered. It was observed that if the impact of State law is heavy or devastating as
to wipe out or abridge the central field, it may be struck down. In State of T.N. and Anr. v. Adhiyaman Educational and Research Institute and Ors.:
(1995) 4 SCC 104, it was observed that to the extent that State legislation is in conflict with the Central legislation under Entry 25, it would be void and
inoperative. To the same effect is the view taken in Dr. Preeti Srivastava and State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra
Mahavidalaya and Ors.: (2006) 9 SCC 1. Though the view taken in State of Madhya Pradesh v. Kumari Nivedita Jain and Ors.: (1981) 4 SCC 296
and Ajay Kumar Singh and Ors. v. State of Bihar and Ors.: (1994) 4 SCC 401 to the effect that admission standards covered by Entry 66 of List I
could apply only post admissions was overruled in Dr. Preeti Srivastava, it was not held that the entire gamut of admissions was covered by List I as
wrongly assumed in Bharti Vidyapeeth.
We do not find any ground for holding that Dr. Preeti Srivastava excludes the role of states altogether from admissions. Thus, observations in Bharti
Vidyapeeth that entire gamut of admissions was covered by Entry 66 of List I cannot be upheld and overruled to that extent. No doubt, Entry 25 of
List III is subject to Entry 66 List I, it is not possible to exclude the entire gamut of admissions from Entry 25 of List III. However, exercise of any
power under Entry 25 of List III has to be subject to a central law referable to Entry 25.â€
Thus, on conjoint reading of Entry 66, List I and Entry 25, List III of the VII Schedule of the Constitution, it is abundantly clear that State’s power
to legislate in relation to medical education is subject to the provisions of Entries 63, 64, 65 & 66 of List I, and therefore, its legislative field is not
completely ousted but circumscribed. The power of the State to legislate to meet educational needs of the area, enact a statute laying down
reservation for entry in medical courses and enact law prescribing higher percentage of marks for extra curricular activities is duly recognized under
Entry 25, List III. In the matter of admissions to colleges also both entries are to be read together and cannot be read in such a manner as to form an
exclusivity in the matter of admission.
26. The position, which has come to the sight in a wider perspective, unwittingly, do not suggest that Rules of 1962, framed under proviso to Article
309 of the Constitution, including the impugned rule, is an affirmative attempt by the State to overlap the legislative power of Centre, provided under
Entry 66, List I. More so, even indirect attempt of the State to transgress its legislative power is not at all forthcoming. Therefore, in the instant matter,
if we critically examine the impugned rule with micro-vision by applying the doctrine of “pith and substanceâ€, it is difficult to comprehend that the
same has even incidentally encroached on a Union subject. “pith and substanceâ€, the phrase raises in a convenient form an appropriate question in
cases where the real issue is one of a subject-matter and it may also serve a useful purpose in the process of deciding whether a particular enactment
is a law with respect to one specific subject or whether it is a law with respect to some other subject, which incidentally touches upon the former
subject. According to “pith and substance†rule, if a law is in its pith and substance, within the competence of the Legislature enacting/making the
same, it will not be invalid because it incidentally touches upon a subject lying within the competence of another legislature.
27. The Constitution Bench of Supreme Court, in State of Bombay & Anr. Vs. F.N. Balsara (AIR 1951 SC 318), while explaining the doctrine,
observed:
“16. There is also another way of dealing with the contention raised before us.
It is well settled that the validity of an Act is not affected if it incidentally trenches on matters outside the authorised field, and therefore, it is
necessary to inquire in each case what is the pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within the powers
expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters
which have been assigned to another legislature. This was emphasised very clearly in Gallagher v. Lynn [1937] A.C. 863 at 870 in these words:-
It is well established that you are to look at the 'true nature and character of the legislation' : Russell v. The Queen 7 A.C. 829 'the pith and substance
of the legislation'. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not
invalidated if incidentally it affects matters which are outside the authorised field"".
In Prafulla Kumar Mukherjee and Others v. Bank of Commerce, Ltd., Khulna [1947] F.C.R. 28 the question arose before the Privy Council whether
the Bengal Money-lenders Act, 1940, which provided that no borrower shall be liable to pay after the commencement of the Act more than a limited
sum in respect of principal and interest, was intra vires the Provincial Legislature as dealing in pith and substance with money-lending and money-
lenders, a subject-matter within the competence of the Provincial Legislature under entry 27 of List II, or whether it trenched on ""promissory notes
and ""banking"", which were subjects reserved for the Federal Legislature under entries 28 and 38 respectively of List I. The Privy Council,
notwithstanding the fact that loans on promissory notes would also have been subject to the provisions of the impugned Act, held that the Act was
valid, and, while rejecting the argument that it was beyond the legislative competence of the Provincial Legislature which had enacted it, their lordships
observed as follows:-
As Sir Maurice Gwyer C.J. said in the Subrahmanyam Chettiar case: ""It must inevitably happen from time to time that legislation, though purporting
to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely inter-twined
that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting
them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned
statute is examined to ascertain its' pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with
respect of matters in this list or in that"". Their Lordships agree that this passage correctly describes the grounds on which the rule is founded, and that
it applies to Indian as well as to Dominion legislation"" [1947] F.C.R. at p. 51.
The same principle was reiterated by the Federal Court in Ralla Ram v. The Province of East Punjab [1948] F.C.R. 207 at 225, and was also referred
to in Miss Kishori Shetty v. The King [1949] F.C.R. 650 at 655 in the following passage:-
It may be that a general adoption of the policy of prohibition by the Provinces will lead to a fall in the import of foreign liquors and to a consequential
diminution of the Central customs revenue, but where the Constitution Act has given to the Provinces legislative power with respect to a certain
matter in clear and unambiguous terms, the Court should not deny it to them or impose limitations on its exercise, on such extraneous considerations. It
is now well settled that if an enactment according to its true nature, its pith and substance, clearly falls within one of the matters assigned to the
Provincial Legislature, it is valid notwithstanding its incidental encroachment on a Federal subject.
Same principle is also reiterated by the Supreme Court in case of Shah Goverdhan L. Kabra (supra). The Court held:
“When a law is impugned as being ultra vires of the legislative competence, what is required to be ascertained is the true character of the
legislation. If on such an examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be
valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the
enactment, the entire Act, its object, scope and effect, is required to be gone into. The question of invasion into the territory of another legislation is to
be determined not by degree but by substance.â€
In a later judgment, Supreme Court, in the matter of Bharat Hydro Power Corpn. Ltd. & Ors. Vs. State of Assam & Ors. [(2004) 2 SCC 553], while
restating the doctrine of ‘Pith & Substance†observed that if two legislatures operate in different fields without encroaching upon each others’
field, there cannot be any repugnancy. The Court held:
“Another principle which needs to be stated here is that when the question is as to whether a provincial legislation is repugnant to the laws enacted
by the Parliament the onus to showing its repugnancy and the extent to which it is repugnant would be on the party attacking its validity. There ought
to be a presumption in favour of its validity and every effort should be made to reconcile them and construe both so as to avoid they being repugnant
to each other. Repugnancy has to be there in fact and not based on a mere possibility. If the two enactments operate in different fields without
encroaching upon each other then there would be no repugnancy. In Shyamakant Lal v. Rambhajan Singh and Ors., the Court held:
When the question is whether a provincial legislation is repugnant to an existing Indian Law, the onus of showing its repugnancy and the extent to
which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be
made to reconcile them and construe both so as to avoid their being repugnant to each other; and care should be taken to see whether the two do not
really operate in different fields without encroachment. Further repugnancy must exist in fact and not depend merely on a possibility:
“Their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the province of
Ontario where the prohibitions of the Canadian Act are not and may never be in, force: (1896) AC 348 at pages 369-370.
Therefore, argument of the learned Senior Counsel to question legislative competence of the State on the most reliable method, namely, doctrine of
“Pith & Substance†too has proved inconsequential.
28. We have also come across a judgment of Supreme Court directly on the point of controversy. In the matter of Government of A.P. & Anr. Vs.
Dr. R. Murali Babu Rao & Anr. [(1988) 2 SCC 386], the Court, while examining precise functions and duties of MCI vis-á-vis powers to prescribe
qualifications for recruitment & right to be considered for promotion, observed that later subject is to be regulated by a rule framed under proviso to
Article 309. The Court held:
“16. As is manifest from the affidavit filed by the Indian Medical Council, it is only a recommendatory body. This Court has in a series of decisions
defined the precise functions and duties of the Medical Council of India. The Indian Medical Council constituted under Section 3 of the Act is an
expert body intended and meant to control the minimum standards of medical education and to regulate their observance. We may only cite the case
of State of Madhya Pradesh v. Km Nivedita Jain where the court had to consider the effect of the Regulations framed by the Medical Council and the
various executive orders issued by the State Government. Analysing the various provisions of the Act in depth, it was observed as follows: (SCC p.
308, para 18)
“An analysis of the various sections of the Act indicate that the main purpose of the Act is to establish Medical Council of India, to provide for its
constitution, composition and its functions; and the main function of the Council is to maintain the medical register of India and to maintain a proper
standard of medical education and medical ethics and professional conduct for medical practitioners. The scheme of the Act appears to be that the
Medical Council of India is to be set up in the manner provided in the Act and the Medical Council will maintain a proper medical register, will
prescribe minimum standards of medical education required for granting recognised medical qualifications, will also prescribe standards of
postgraduate medical education and will further regulate the standards of professional conduct and etiquette and code of ethics for medical
practitioners.â€
(emphasis supplied)
A fortiori, the recommendations made by the Council or the Regulations framed by it are only recommendatory and not mandatory. It is not for the
Council to prescribe qualifications for recruitment to posts of Professors, Readers and Lecturers. It can only lay down broad guidelines therefor. Such
qualifications have necessarily to be prescribed by the framing of Rules under the proviso to Article 309. Right to be considered for promotion is a
condition of service and it can only be regulated by a rule framed under the proviso to Article 309.â€
29. In view of foregoing discussion, we are not impressed that the Rules of 1962 made under proviso to Article 309 of the Constitution is beyond
legislative competence of the State. It is plain beyond words that impugned Rule 21(3) of the Rules of 1962 only refers to legislation with respect to
Entry 41, List II,
Schedule VII in the State’s Legislative List; it has no application to the legislation with respect to anything in Entry 66, List I, Schedule VII of the
Constitution prescribing fields of Union Legislation.
Resultantly, our answer to Question No.2 is in negative and it is hereby declared that the State while enacting law under proviso to Article 309 of the
Constitution, namely, Rules of 1962, has not transgressed its legislative power to encroach on a Union subject envisaged in Entry 66, List I of Schedule
VII of the Constitution.
Let the writ petition be placed before appropriate Bench for deciding the same in accordance with law.
