Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench comprising of Sujoy Paul and Arun Kumar Sharma, JJ., held that the Demonstrators and Tutors working in cities/urban areas are to be treated as ‘in-service candidates’ as neither the relevant order nor the rule precludes the Medical Officers working in urban areas or hospitals from benefit of being ‘in-service candidate’. The Bench remarked,

“If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

The interesting conundrum in the instant case was whether the petitioners, MBBS qualified Doctors rendering their services as regular employees in the Department of Health Services, State of M.P. fall in the category of ‘in service candidates’ and whether they have separate channel of entry in P.G. Course as per order dated 19-08-2021 issued by the State Government.

As per the Government order dated 19-08-2021, the reservation/separate channel of entry to the extent of 30% in P.G. Degree Course was made. The order covered Demonstrator, Tutors and the Medical Officers, the category to which present petitioners belonged. Further, as per the as per Rule 2(k) of M.P. Chikitsa Shikisha Pravesh Niyam 2018, the petitioners were covered in the definition of “serving employees”.

The petitioners urged that 30% reservation/separate channel of entry, earmarked for Degree Seats for Demonstrator/Tutors/Medicals Officer which made the petitioners being Medical Officers entitled to such reservation yet they were treated to be eligible only for open seats.

Difficult Area vis-a-vis Difficult Services

Evidently, a policy decision dated 28-03-2021 was issued to provide additional marks/incentive to the serving candidates. However, the benefit of incentive was confined to the candidates working in rural, remote and difficult areas.

Although, Harda and Indore, where petitioners were admittedly working did not fall under the umbrella of “difficult area”, the petitioners argued that the policy was issued in Pre-Covid era and considering the fact that Indore and Harda District Hospitals were also difficult areas where the petitioners were rendering their service 24×7 during Pandemic era, they must be treated to be performing difficult service, and therefore, the benefit of the order dated 28-03-2019 must be extended in favour of petitioners as well. Citing the decision in Malpe Vishwanath Acharya and others Vs. State of Maharashtra, (1998) 2 SCC 1, the petitioners submitted that a provision of law may be valid at the time of its issuance but may lose its relevance by efflux of time. Therefore, the petitioners urged that during Pandemic, since all the Doctors working in District Hospitals became vulnerable and worked at the cost of their and families’ lives, they should be included in the category of difficult posting/area.

Accordingly, the Bench accepted the stand of State that under Regulation 9 (8) of the MCI PG Regulations 2000 emphasis is on ‘difficult area’ and not on ‘difficult services’.

(a) Whether ‘in-service candidates’ includes doctors posted in District Hospital, Harda and Indore respectively?

Opining that a conjoint reading of the Government Order dated 19-08-2021 and the rules leaves no room for any doubt that definition of ‘in-service candidate’ is wide enough to include the medical officers and that admittedly, petitioners were working as Medical Officers in District Hospitals, the Bench held that there was no impediment which deprived the petitioner from right of consideration in Post Graduate Degree Course as a separate channel of entry.

Rejecting the argument of the State that the relief claimed by the petitioners was contrary to Medical Council of India (MCI) Regulations and the State Government cannot legislate contrary to the Regulations framed by MCI as prescribing standard of education on Pan India basis is within the domain of MCI, the Bench ruled that there is no Regulation of MCI which deprives the present petitioners for consideration as in-service candidates as the condition of service in “difficult area” as required under Regulation 9(8) is applicable to ‘Diploma Course’ and not the course in question i.e. Postgraduate Degree Course. The Bench stated,

“This argument pales insignificance because present matter does not relate to Diploma Course. Thus, Regulation 9(8) has no application and no other regulation for this purpose is brought to the notice of this Court.”

Since the governing rule (Admission Rules) brought the petitioners within the zone of consideration, the Bench held that the petitioners had a separate channel of entry being Medical Officers in earmarked 30% total seats of Postgraduate Medical Courses.

(b) Whether the petitioners are entitled to get incentive of marks as per circular/order dated 28-03-2019?

The Order dated 28-03-2019 provided for 10% additional marks to the doctors who had their place of posting in the last one and a half year in a ‘difficult area’ as defined under Regulation 9(8). The petitioners, claiming to be serving in difficult situation during pandemic demanded parity with those candidates whose place of service was classified as difficult area and consequently, the petitioner were seeking to get the benefit on 10% incentive marks on that basis.

Accepting the stand of the State was that Regulation 9(8) is very clear that emphasis is on ‘difficult area’ and not on ‘difficult services’ and the area in which petitioners were working were not difficult areas at all, and further observing that the order dated 28-03-2019 was not called in question, the Bench held that the said order is a policy decision taken by the Government which could not be lightly disturbed. The Bench added, the policy decision can be interfered with on limited grounds and when it was not even challenged, it has to be read as such and the Court cannot re-write and insert something which is not there in their policy decision. Accordingly, the claim of the petitioners was rejected with regard to incentive marks.


In view of foregoing analysis, the Bench held the following:

  1. Rules – Definition of ‘in-service candidates’ also includes the Medical Officers working in District Hospital whether or not such Hospital is situated in difficult, remote or rural area. Thus, they are entitled to be considered as special entry under 30%.
  2. MCI Regulations – Regulation 9(8). This regulation is applicable to Diploma Course and not to Degree or Post Graduate Degree Course. No provision was brought to the notice of the Court to show that posting at remote, difficult or rural area is essential to become in-service candidate for Post Graduate Degree Course.
  3. Government – The scope of judicial review is very limited. The Government is best suited to take a policy decision which can be interfered with if shown to be palpably arbitrary, discriminatory or unconstitutional. The order dated 28-03-2019 is not arbitrary, discriminatory or unconstitutional.
  4. ‘Difficult area’ does not include “difficult services” rendered in District Hospital Indore and Harda. Thus, question of grant of incentive marks to the petitioners does not arise.
  5. The petitioners fell in the category of ‘in-service candidates’ for the purpose of Postgraduate Medical Courses and the respondents had erred in not treating them in the said category in the impugned chart/table uploaded on the official website. Accordingly, the impugned entries of the chart/table were set aside.

Consequently, the State Government was directed to treat the petitioners as in-service candidates for Postgraduate Degree Course and consider their claim in accordance with law. [Vijendra Dhanware v. State of Madhya Pradesh, W.P. No.25819 of 2021, decided on 14-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For petitioners: Shri Siddharth Gupta, Advocate.

For respondent/State: Shri Piyush Dharmadhikari, Govt. Adv. for respondents 1, 2 and 4.

Shri Anoop Nair, Advocate for respondent 3.

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.

Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.


On the scope of “coordination and determination of standards” under Entry 66 List I

Entry 66 List I is a specific entry having a very limited scope and only deals with “coordination and determination of standards” in higher education. The term “coordination and determination of standards” means   laying   down   the   said standards and therefore when it comes to prescribe the standards for such institutions of higher learning, exclusive domain is given to the Union.  Further, it 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.

“Thus, in exercise of powers under Entry 66 List I, the Union cannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III.”

On the scope of MCI’s power to frame regulations with respect to reservation

The Medical  Council   of   India which  has  been constituted   under   the   provisions   of   the   Indian Medical   Council   Act,   1956   is   the   creature   of   the statute  in  exercise  of  powers  under  Entry  66 List  I and   has   no   power   to   make   any   provision   for reservation,   more   particularly,   for   in-service  candidates  by   the   concerned  States,   in   exercise  of powers under Entry 25 List III.

Section 33 of the MCI Act does not confer any authority and/or power to the MCI to frame the regulations with respect to reservation in the medical courses, more particularly, to provide for a separate source of entry for in-service   candidates   seeking   admission   to   postgraduate   degree courses, as sought to be contended on behalf of the MCI and counsel opposing for providing for a separate source of entry for in-service candidates.

“… it cannot be said that the Medical Council of India would have any authority or jurisdiction to   frame   any   regulations   with   respect   to   reservation   and/or making special provision like providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses.”

On the validity of Regulation 9 of MCI Regulations, 2000

Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III.

“…if   it   is   held   that   Regulation   9,   more particularly, Regulation 9(IV) deals with reservation for   in-service   candidates,   in   that   case,   it   will   be ultra vires of the Indian Medical Council Act, 1956 and   it   will   be   beyond   the   legislative   competence under Entry 66 List I.”

Regulation 9 of MCI Regulations, 2000 to the extent tinkering with reservation provided by the State for in-service candidates is ultra vires on the ground that it is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India.

On the need for in-service quota

There is a legitimate and rational basis in providing a separate channel/source of entry for in-service candidates in order to encourage them to offer their services and expertise to the State. There is a sufficient nexus with the larger goal of equalization of educational opportunities and to sufficiently prefer the doctors serving in the various hospitals run and maintained out of public funds, in the absence of which there would be serious dearth of qualified Post-graduate doctors to meet the requirements of the common public.  It is stated that the Government is facing public health crisis. The effective and competent medical treatment is not available in the rural and difficult areas.  In-service doctors who pursue higher studies would naturally serve in rural and difficult areas if such incentive in the form of reservation is provided.

“The action of the State to provide for the in-service quota is in the discharge of its positive constitutional obligations to promote and provide better health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialized health care facility. Such action is in discharge of its constitutional obligations as provided in Article 47 of the Constitution of India, which is the corresponding fundamental right of the citizens protected under Article 21 of the Constitution of India.”

On State’s power to provide in-service Quota

The power of the State under Entry 6, List II of Schedule VII to legislate in the subject matter of public health and hospital is exclusive. When the State provides a separate source of admission for in-service doctors as a distinct class and within the State quota and the object is laudable, the State is within its power to provide such separate source of admission in exercise of the powers under Entry 25 List III, read with Entry 6, List II.  It cannot be said that there is no nexus with the laudable object of meeting the requirement of qualified postgraduate doctors for the public health services, more particularly, in the rural, tribal and difficult areas.  As such, there is no conflict between the power of the Union and the State.

 The occupied field of Union legislation in exercise of power under Entry 66, List I is related to minimum standards of medical education and the State   is   providing the in-service quota without impinging the prescribed minimum standards.

“State is within its power and authority to provide such a preferential treatment to provide a better public health in the rural, tribal and hilly areas.”

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699, decided on 31.08.2020]

Case BriefsSupreme Court

Supreme Court: A vacation bench comprising of Abdul Nazeer and Indu Malhotra, JJ. granted relief to the States of Bihar, Jharkhand and Uttar Pradesh by allowing them to admit fresh batches of students in the MBBS course for the upcoming academic session 2018-2019.

Earlier, the Central Government, basing its decision on the report of Medical Council of India (MCI), had denied permission of renewal to various Government colleges in the above-mentioned three States, owing to deficiencies in infrastructure. The States challenged the decision of the Central Government. The Hon’ble Supreme Court, on 14-6-2018, had directed the concerned State Governments to file affidavits regarding the deficiencies pointed out by MCI, and the steps to be taken for removal of the same within a specified time limit.

When the matter was heard on 18-6-2018, the affidavits filed by Principal Secretaries to the three Governments were tendered across the bar. In their affidavits, all the Governments had given details about the steps being taken to rectify the deficiencies pointed out by MCI in its report, along with undertakings that the timelines mentioned in the affidavits will be adhered to. In view of the affidavit and undertaking submitted by Principal Secretary of each of the three States, the Hon’ble Supreme Court granted permission to the Government Colleges concerned to admit fresh batch of students to the MBBS course for the academic year 2018-2019. The MCI was directed to carry out inspection after three months to verify the compliance of undertakings as filed before the Hon’ble Court. Further, it was ordered that the non-compliance of the undertakings within the period specified therein, will make the concerned Principal Secretary personally liable for such non-compliance. The order was passed in peculiar facts and circumstances of the case as otherwise over 800 seats in Government Medical Colleges would have been wasted. The matter was directed to be placed before the Hon’ble Court on 25-6-2018 for further proceedings. [State of Bihar v. Medical Council of India,2018 SCC OnLine SC 614, dated 18-06-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Bharati. H.Dangre, JJ., allowed a petition filed seeking a transfer from a medical college in Miraj to a college in Mumbai/Thane.

The petitioner was aggrieved by the rejection of her application for transfer from Government Medical College, Miraj to any Government Medical College in Mumbai or Thane. The petitioner sought transfer on the ground that she suffered from Allergic Bronchitis Bronchial Asthma and need to be treated in Mumbai. It was undisputed fact that one seat was vacant in Rajeev Gandhi Medical College, Thane (RGMC). It was also undisputed that she had obtained all the documents (no objection certificates) from concerned authorities. It was contended by the respondent State that the petitioner could not be granted migration as the seat in RGMC was not a clear vacancy as per the information brochure of the State Government since it arose due to the migration of a student from the said seat.

The High Court perused the record and observed that the petitioner had all the required documents necessary under MCI Regulations and also Regulations issued by Vice Chancellor of the University. The Court noted the submission made by the respondent State but only to be rejected. The Court categorically observed, the brochure issued by the State Government at most could be an administrative instruction and could not have an overriding effect over the Regulations framed by MCI which were in nature of subordinate legislation. The Court found that the petitioner had complied with all the technical requirements as per MCI Regulations and the only question left for consideration was whether the transfer was sought by the petitioner on genuine grounds. The High Court was of the opinion that the petitioner had a genuine case for seeking a transfer as she was suffering from an ailment which required proper medical attention. Accordingly, the petition was allowed and the State was directed to approve petitioner’s case for transfer to RGMC, Thane. [Pankti M. Pancholi v.  State of Maharashtra,2018 SCC OnLine Bom 1178, dated 04-05-2018]

Case BriefsSupreme Court

Supreme Court: In the case where a Medical Institution was aggrieved the Government order dated 31.05.2017, which resulted into non-renewal of the permission to admit students for the academic year 2017-2018, the 3-judge bench of Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ held that the order was non-reasoned and directed the Central Government to afford a further opportunity of hearing to the petitioners as per Section 10-A of the Medical Council Act, 1956 and also take the assistance of the Supreme Court mandated Oversight Committee. The matter will be taken up on 24.08.2017.

Stressing upon the need to have institutions which are worthy to impart medical education so that the society has not only qualified doctors but doctors with impeccable and sensitive qualities, the Court said that the objectivity of the Hearing Committee and the role of the Central Government assume great significance in this regard.  The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government and the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible.

The Court said that the direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand is not attracted. It was clarified that it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a blind eye even if they perceive certain other deficiencies. The Court said that the emphasis is on the compliant institutions that can really educate doctors by imparting quality education so that they will have the inherent as well as cultivated attributes of excellence. [IQ City Foundation v. UOI, 2017 SCC OnLine SC 842 decided on 01.08.2017]

Case BriefsSupreme Court

Supreme Court: The bench comprising of Madan B. Lokur and N.V. Ramana JJ came down heavily on Kalinga Institute of Medical Sciences (KIMS) for venturing adventurist litigation has directed the Medical Council of India to restrain it from increasing the intake of students from 100 students to 150 students for the course for the academic year 2016-17 and 2017-2018.

The Court while imposing costs of Rs. 5 crores on KIMS for playing with the future of its students said that there is something rotten in the state of medical colleges unless the concerned Ministries in the Government of India take a far more proactive role in ensuring that medical colleges have all the necessary facilities. The Court also quoted that “Quality in medical education is equally important, if not more, than quantity.”

The Court further observed that the High Court should have been more circumspect in passing interim orders directing the admission of students by its order directing Central Government to grant provisional permission to KIMS to conduct the course for the additional 50 students in the academic year 2015-16. The Supreme Court quashing the order of High Court said that under no circumstance High Court should examine the report as an appellate body. In the present case there was no ground made out at law for setting aside the report of the Inspection Team.

While disposing off the appeal, the Court issued certain directions for KIMS on observation that for the fault of the KIMS, students should not suffer but KIMS should not get away Scot Free.

  • The admission granted to the 50 students pursuant to the order of the High Court and the provisional permission granted by the Central Government shall not be disturbed.
  • The MCI or the Central Government will proceed to take action against KIMS under Clause 8(3) of the Medical Council of India Establishment of Medical College Regulations, 1999 (as amended).

Observing that there is no fixed procedure prepared by the MCI for conducting an inspection, the Court further directed MCI and Central Government as follows:

  • MCI should in consultation with the Central Government prepare a Standard Operating Procedure for conducting an inspection.
  • To introduce transparency and accountability in the medical colleges, the report of the Inspection Team should be put up on the website of the concerned medical college as also on the website of the MCI. [Medical Council of India vs Kalinga Institute of Medical Sciences (KIMS) 2016 SCC OnLine SC 439, decided on 06-5-2016]