IMPORTANT POINT
Candidates belonging to SC/ST/OBC must be able to secure the minimum qualifying marks in the admission tests in order to gain admission to post-graduate medical courses.

JUDGMENT

Sen, J.-The petitioners are medical graduates. They are desirous of getting admitted to Post Graduate Courses. Some of the petitioners took the test conducted by the Government of Uttar Pradesh in January, 1995 for admission to Post Graduate Courses in Medicine and Surgery. The others wanted to take the examination to be held in January, 1996. They have moved this Writ Petition under Article 32 of the Constitution to challenge a notification issued by the U.P. Government providing for reservation for SC/ST/OBC candidates in Post Graduate Speciality and Super-speciality Courses such as M.D. and M.S. The main contention is that this notification violates the fundamental right of the petitioners under Articles 14, 15 and 21 of the Constitution.

2. It may be noted that a similar Writ Petition was earlier moved challenging the reservation of seats for SC/ST/OBC candidates for admission to Post Graduate Courses in Medicine by some other persons. That Writ Petition (W.P. No. 771 of 1994) was heard along with another Writ Petition (W.P. No. 631 of 1994-Ashok Kumar Thakur v. State of Bihar). There the challenge was to the criteria followed by the State of Bihar for determining the creamy layer among the backward classes. The criteria followed by the States of Bihar and Uttar Pradesh in determining the creamy layer was struck down by a judgment dated 4th September, 1994. In the aforesaid two cases, however, this Court did not have to consider the question of reservation to Post Graduate Courses in Medicine. Liberty was given to raise the question in appropriate proceedings in the following manner :

"Mr. Venugopal, the learned Counsel appearing for the Petitioners stated that there are various other law points of this Writ Petition which were not raised and he sought liberty to raise the same in appropriate proceedings, if necessary. We order accordingly."

3. Pursuant to the liberty granted in the aforesaid judgment this Writ Petition has now been moved. The petitioners contend that they belong to open category. They are all from the State of Uttar Pradesh. They have completed their M.B.B.S. Course. Petitioners 1, 2 and 3 have already taken their Post Graduate Medical Entrance Examination held in January, 1995. They have been successful in getting the qualifying marks in the examination and are likely to be called for Counselling . Petitioners 4 to 6 are medical graduates who intended to take the examination to be held in January, 1996.

4. In the State of Uttar Pradesh by virtue of executive instructions issued from time to time the following reservations have been made for admission to Post Graduate Degree and Diploma Courses :-

Scheduled Castes ... 21%

Scheduled Tribes ... 2%

Backward Classes ... 27%

5. This practice has been in force for some time. What gives rise to the present dispute is a circular/letter dated 31.8.95 written by the Principal Secretary, U.P. Government, to the Director General Medical Education and Training, Uttar Pradesh. In that circular, requirement of minimum qualifying marks, which was 35% for the written examination, has been cancelled for the reserved seats. The contention of the petitioners is that even if these special category candidates fail to score any mark in the test, they will be eligible for admission as long as there are vacancies in the special categories.

6. It has been contended on behalf of the petitioners that the ultimate power to fix norms and standards for admission to medical colleges vests in Medical Council of India under the Indian Medical Council Act, 1956 read with Indian Medical Council (Amendment) Act, 1993. So far as admissions to medical colleges are concerned, the Regulations framed by the Medical Council of India under Section 33 of the Act will prevail over any law or executive instructions made by any State Government.

7. The ultimate power to fix norms for admission to post-graduate medical courses ves