Deepak Gupta, J.— Applications for permission to file special leave petitions are allowed. Applications for impleadment/intervention are also allowed. Leave granted in all the special leave petitions.
2. By this order we are disposing of all the aforesaid civil appeals as well as interlocutory application(s) relating to the State of Uttar Pradesh in Writ Petition (C) No. 76 of 2015. Keeping in view the urgent nature of the dispute, the appeals and the interlocutory application(s) relating to the State of Uttar Pradesh in Writ Petition (C) No. 76 of 2015 are taken up for final hearing with the consent of the parties.
3. Two questions arise for decision in these cases:
3.1 (i) Whether the High Court 2017 SCC OnLine All 1355 was justified in setting aside the institutional preference in Aligarh Muslim University (for short “AMU”) and Banaras Hindu University (for short “BHU”) and further directing that the postgraduate seats in these institutions shall be filled up only from those students who have passed MBBS from institutions, universities and colleges in the State of Uttar Pradesh;
3.2 (ii) Whether the High Court was justified in issuing a direction that the benefit of service rendered in remote/difficult areas should be given only to those doctors of the Provincial Medical Health Services (for short “PMHS”), who have cleared MBBS examination from a college within the State of U.P
4. The impugned order 2017 SCC OnLine All 1355 has been challenged by the appellants, some of whom are persons who have been admitted in AMU and BHU and whose admissions are now sought to be cancelled on the basis of the impugned order. Some of the appeals have been filed by in-service doctors who have graduated from outside the State of U.P Appeals have also been filed by AMU and BHU.
5. Briefly stated, the facts of the case are that a writ petition being Writ Petition (C) No. 17183 of 2017 was filed by certain doctors in which their only claim was that the benefit of Regulation 9(IV) of the Medical Council of India Postgraduate Medical Education Regulations, 2000 (hereinafter referred to as “the 2000 Regulations”) was only available to those doctors serving in the Uttar Pradesh PMHS (hereinafter referred to as “in-service doctors”), who had passed their MBBS examination from a university/institution situate within the State of Uttar Pradesh. No other issue was raised in this writ petition.
6. This matter was taken up by the High Court on 15-5-2017 and in its order dated 15-5-2017 2017 SCC OnLine All 1433, the High Court made reference to various circulars issued by the State of Uttar Pradesh from time to time and the Court raised certain queries in this order. Though the High Court in the writ petition was only concerned with one issue i.e whether in-service doctors of PMHS cadre, who had obtained their MBBS degree from outside the State of U.P were entitled to benefit of Regulation 9(IV) of the 2000 Regulations, the High Court framed a number of questions pertaining to admission to postgraduate courses in medical colleges and asked the Chief Secretary to file a reply to the same. The High Court, without any material before it, also raked up the issue with regard to admissions to AMU and BHU and raised a query whether students, who had passed their MBBS/BDS final examination from colleges within the State of U.P, were entitled for admission to AMU and BHU on the basis of their merit in the competitive examination.
7. The Chief Secretary filed an affidavit stating that the medical education is governed by the Medical Council of India (for short “MCI”), which is a statutory body set up under the Medical Council of India Act, 1956. Reference was made to Regulation 9(IV) of the 2000 Regulations, which reads as follows:
“9. Procedure for selection of candidate for postgraduate courses shall be as follows.—
(I)-(III)***
(IV) The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all-India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to postgraduate courses from the said merit lists only:
Provided that in determining the merit of candidates who are in service of Government/public authority, weightage in the marks may be given by the Government/competent authority as an incentive @ 10% of the marks obtained for each year of service in remote and/or difficult areas up to the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult areas shall be as defined by the State Government/competent authority from time to time.”
8. In State of U.P v. Dinesh Singh Chauhan (2016) 9 SCC 749, (2016) 8 Scale 16, this Court held that Regulation 9 of the 2000 Regulations was a complete Code in itself to determine inter se merit of the candidates and that the State was entitled to make a provision for giving weightage of marks as incentive to those in-service candidates who have worked in notified, remote or difficult areas in the State. The challenge in Dinesh Singh Chauhan case (2016) 9 SCC 749, (2016) 8 Scale 16 was to the preference/advantage given by Regulation 9(IV) of the 2000 Regulations. This challenge was rejected. The Chief Secretary in his affidavit clearly stated that all in-service candidates, who have worked in the notified, remote or difficult areas in the State were eligible for benefit of Regulation 9(IV) and no distinction could be made between those in-service candidates, who have done their graduation from within the State of U.P or those who had done the graduation outside the State of U.P Despite the clear-cut stand of the State, the High Court held 2016 SCC OnLine All 622 that the circulars giving institutional preference to students of AMU and BHU are contrary to the 2000 Regulations. The High Court further went on to hold that weightage of marks under Regulation 9(IV) was available only to those candidates, who had passed their MBBS examination from universities/institutions situated within the State of U.P
9. Admission to postgraduate courses in medical colleges is done on the basis of NEET. 50% of the seats are filled on merit on all-India basis and 50% of the seats are filled on merit drawn on State-wise basis. Within the State merit list there is a provision for providing weightage to in-service doctors as per Regulation 9(IV) to those doctors who have worked in remote or difficult areas.
10. As far as the first question raised before us is concerned, we are clearly of the view that the High Court has overstepped its jurisdiction and went beyond the scope of the writ petition while issuing the direction relating to AMU and BHU. This issue was admittedly not raised by the appellant-petitioners. These two universities were not even parties before the High Court. The selected candidates were not joined as respondents. Both these universities are Central universities. The State Government had issued a Circular on 31-3-2017 clarifying that students, who had done their MBBS/BDS final year from AMU and BHU would be entitled for counselling only in the seats available in their own institutes viz. AMU and BHU. It would be pertinent to mention that in the Central universities 100% admissions for MBBS course are based on all-India examination. There is no State quota for seats in Central universities like AMU and BHU or other Central institutions like All-India Institute of Medical Sciences, etc. It is, therefore, apparent that the State can have no control over the seats in those medical colleges which are part of the Central universities/institutions. These seats have to be filled up on the basis of merit and institutional preference could be given to the extent permissible i.e 50%, as has been held by a catena of decisions including the Constitution Bench judgment of this Court in Saurabh Chaudri v. Union of India (2003) 11 SCC 146, wherein this Court held as follows:
“72. Having regard to the facts and circumstances of the case, we are of the opinion that the original scheme as framed in Pradeep Jain v. Union of India (1984) 3 SCC 654 should be reiterated in preference to Dinesh Kumar (2) v. Motilal Nehru Medical College (1986) 3 SCC 727. Reservation by way of institutional preference, therefore, should be confined to 50% of the seats since it is in public interest.
***
74. Aiims is an institution of excellence. It is a class by itself and pride. We are, therefore, of the opinion that in Aiims and the medical colleges of the Central University, merit should have primacy subject of course to institutional preference to the extent of 50% of the total seats in the MBBS course. In all other respects, the decision of this Court in Students' Union v. Aiims (2002) 1 SCC 428 shall operate.”
11. The 50% institutional reservation in AMU and BHU, which had been reflected in their prospectus, was not challenged by anybody before the High Court. As stated earlier, AMU and BHU were not parties before the High Court. MCI and the Union of India were also not parties before the High Court. The High Court did not take into consideration the judgment of this Court in Saurabh Chaudri (2003) 11 SCC 146 and other cases upholding institutional preferences in Central universities. The High Court did not also take into consideration the fact that the State had no power to control admissions to these universities. Therefore, as far as the first issue is concerned, we are clearly of the view that the High Court overstepped its jurisdiction and the order of the High Court is erroneous and is liable to be set aside.
12. As far as the second issue is concerned, Regulation 9(IV) clearly provides that an incentive at the rate of 10% of the marks for each year can be provided to those in-service candidates, who have served in remote or difficult areas subject to the condition that the highest incentive will be of 30% marks. The power to notify the remote and difficult areas is vested with the State Government. This power has been upheld by this Court in Dinesh Singh Chauhan case (2016) 9 SCC 749, (2016) 8 Scale 16. It would be pertinent to mention that in this case, this Court only upheld this power and held that Regulation 9(IV) of the 2000 Regulations is a complete Code in itself. This Court was not dealing with the question as to whether the benefit of weightage of marks for having served in remote or difficult areas could be given only to local in-service doctors or to the entire category of in-service doctors.
13. In fact, Regulation 9(IV) itself only provides for weightage being given for each year of service rendered in remote and difficult areas. The purpose behind this rule is that those doctors who willingly served in remote and difficult areas should be given some preference while considering them for admission to postgraduate courses. The intention is to benefit those who left the comforts of towns and cities and are willing to work in difficult conditions in remote and difficult areas. The State of U.P had also issued a circular which inter alia reads as follows:
“9. Benefit of weightage/reservation to medical officers belonging to PMHS category.—In accordance with the judgment (2016) 9 SCC 749, (2016) 8 Scale 16 passed by the Hon'ble Supreme Court and the Regulations framed by the Medical and Health Department of the State as per MCI Guidelines, the State Department shall issue no-objection certificates to the MBBS degree holding doctors belonging to PMHS cadre for counselling by giving weightage as per rules and the merit list shall be accordingly modified and they shall be given admission in the government medical colleges/universities/private medical colleges.
The proceedings for PMHS category medical officers for government medical colleges/universities shall be taken in accordance with the Postgraduate Regulation, 2000 and policy framed vide Govt. Order No. 4197.med-3-16-G-179/2005 dated 23-12-2016 issued by the Medical Department.”
14. The aforesaid Circular dated 23-12-2016 clearly mentions that benefit of Regulation 9(IV) of the 2000 Regulations shall be available to medical officers belonging to PMHS cadre, who have served in remote and difficult areas. No distinction has been made between those who have graduated from within the State of U.P or those who have graduated from outside the State of U.P Once the graduate doctors, whether they have qualified their MBBS/BDS examination from within the State of U.P or from any other part of the country, are selected and join the medical health service in the State of U.P, they form part of one service i.e PMHS. Thereafter, when these doctors are posted to remote or difficult areas they are posted as doctors of PMHS and not on the basis as to which State they have done their graduation from. We, therefore, see no reason as to why the benefit of weightage in terms of Regulation 9(IV) should be limited to those in-service candidates of PMHS category, who have graduated from within the State of U.P This is a totally artificial distinction drawn up by the High Court. In fact, the State of U.P had also not made any such distinction and the affidavit of the Chief Secretary was categorical that the 2000 Regulations had not created such a divide or distinction.
15. In this regard, we may make reference to the following portion of the affidavit of the Chief Secretary:
“14. That since the Hon'ble Supreme Court has upheld (2016) 9 SCC 749, (2016) 8 Scale 16 the validity of Regulation 9 and has categorised it as a complete code and a provision for determining inter se merit and grant of weightage to in-service candidates who have worked in notified, remote or difficult areas in the State, and there is nothing in the Postgraduate Medical Education Regulations, 2000 to create a divide or a distinction between such of the in-house candidates who may have done their graduation from outside the State, therefore, no such divide is created at the level of the Director General, Medical and Health while considering the cases of in-house candidates and giving weightage to them and thereafter recommending the name to the Director General, Medical Education for counselling.”
16. We, therefore, hold that the High Court erred in deciding that only those in-service doctors who had cleared their MBBS examination from within the State of U.P, were only entitled to the benefit of Regulation 9(IV) of the 2000 Regulations.
17. We are also of the view that not only the High Court transgressed its jurisdiction and went beyond the scope of the writ petition but by the impugned order 2017 SCC OnLine All 1355 set at naught the entire selection process only two days before the last date of admissions making it virtually impossible to comply with the direction of the High Court within the short period of two days.
18. In view of the above discussion, we set aside the order dated 29-5-2017 2017 SCC OnLine All 1355 passed by the High Court and all directions issued by it. We also set aside all consequential action taken by the State of U.P or any other authority or institution pursuant to the directions of the High Court.
19. The State of Uttar Pradesh has filed IA No. 45327 of 2017 in Writ Petition (C) No. 76 of 2015 praying for extension of the last date of admission as laid down in Ashish Ranjan v. Union of India (2016) 11 SCC 225 for a period of one month to comply with the directions issued by the High Court. Since we have set aside the judgment of the High Court, there is no need to re-draw the merit list.
20. The learned counsel for AMU has urged that the time for filling up the seats be extended since on account of the confusion created by the order of the High Court, a large number of seats are still lying vacant in AMU. Similar request has also been made by the learned counsel for the State of Uttar Pradesh on behalf of the Government run medical colleges/institutions. In view of the order dated 18-1-2016, passed by this Court in Ashish Ranjan v. Union of India (2016) 11 SCC 225, normally we would be reluctant to extend the time. However, the present case has some peculiar facts of its own. The High Court has, on a totally erroneous basis, set aside a substantial portion of the counselling on 29-5-2017 which would have resulted in fresh counselling and, therefore, some seats which could be filled up on 30-5-2017 or 31-5-2017 could not be filled up. That process which would have taken only 2 days' time, would now require a minimum of 5 or 6 days' time because action will have to be taken afresh.
21. In view of the above discussion, we set aside the judgment and order of the High Court and all consequential action taken by the State of U.P and/or any other authority pursuant to that order. It is clarified that those who were counselled and granted admission prior to the impugned judgement 2017 SCC OnLine All 1355 of the High Court shall be permitted to continue in their respective courses. The time for filling up the vacant seats, if any, in AMU, BHU and Government run medical colleges/institutions in the State of U.P is extended up to 12-6-2017 in the peculiar facts and circumstances of the case. We further permit AMU, BHU and Government run medical colleges/institutions in the State to fill up the seats in the postgraduate courses in AMU, BHU and Government run medical colleges/institutions up to 12-6-2017.
22. All the civil appeals as well as the interlocutory application(s) relating to the State of Uttar Pradesh in Writ Petition (C) No. 76 of 2015 are disposed of in the aforesaid terms. Pending application(s), if any, also stand(s) disposed of.