Tripura High CourtDr. Anup Kumar Laha vs The State Of Tripura on 7 June, 2017Author:S. TalapatraBench:S. TalapatraIN THE HIGH COURT OF TRIPURA
                             AGARTALA

     W.P.(C) No.366 of 2017

     Dr. Anup Kumar Laha,
     son of late Kuroram Laha, resident of
     Capital Complex Officer Quarters,
     Type-IV/F/1, P.O. Kunjaban, P.S.
     New Capital Complex, District - West
     Tripura,
                                               ......... Petitioner
                             -Versus-

1.   The State of Tripura,
     to be represented by the Secretary,
     Department of Health and Family
     Welfare, Government of Tripura, Civil
     Secretariat,   New        Secretariat
     Complex, P.S. New Capital Complex,
     P.O.   Kunjaban,    Agartala,  West
     Tripura, PIN- 799010

2.   The Secretary,
     to the Government of Tripura, Health
     and Family Welfare Department,
     Government      of   Tripura,   Civil
     Secretariat,   New        Secretariat
     Complex, P.S. New Capital Complex,
     P.O.    Kunjaban,   Agartala,  West
     Tripura, PIN- 799010

3.   The Secretary to the Government of Tripura,
     Medical Education Department, Civil
     Secretariat,     New      Secretariat
     Complex, P.S. New Capital Complex,
     P.O. Secretariat Complex, Agartala,
     West Tripura, PIN- 799010


4.   Director of Medical Education,
     Government of Tripura, Bidurkarta
     Chowmuhani, P.O. Agartala, District -
     West Tripura, PIN - 799001

5.   The Principal,
     Agartala     Government     Medical
     College, Agartala, P.O. Kunjaban,
     P.S. New Capital Complex, District -
     West Tripura
                                                    [2]




                                       BEFORE
                         THE HON‟BLE MR. JUSTICE S. TALAPATRA
         For the petitioner                    :   Mr. A.K. Bhowmik, Sr. Advocate
                                                   Mr. R. Dutta, Advocate
         For the respondents                   :   Mr. S. Chakraborty, Addl. G.A.

         Date of hearing                       :   06.06.2017

         Date of delivery                      :   07.06.2017
         of Judgment & Order

         Whether fit for reporting             :    Yes   No
                                                    √


                               JUDGMENT & ORDER (ORAL)By means of this petition, the petitioner who has

         admittedly appeared in the NEET for admission in the PG Course

         in Modern Medicine as the in-service candidate, has urged this

         court for allotting him 30% additional marks towards incentive for

         serving in the remote/difficult areas in addition to marks secured

         by him in the NEET. Further, the petitioner has challenged the

         provision for upper age limit contained in the memorandum under

         No.F.7(10)-DME/ET/2012/2950-62 dated 30.10.2014, Annexure-

         R/1 to the reply filed by the respondents, and the memorandum

         under No. No.F.3(472)-HFW/2015 dated 17.12.2015, Annexure-

         R/3 to the reply filed by the respondents. By these memoranda,

         Annexures-R/1 and R/3 to the reply filed by the respondents, the

         Government has set up restriction of age for the sponsored/open

         category candidates in the following manner:„Upper age limit shall be 45(forty five) years.‟


                          However, in the memorandum dated 17.12.2015,

         5(five) years relaxation from the said upper age limit for SC and

         ST candidates has been provided.W.P.(C) No.366 of 2017                                                         Page 2 of 14[3][2]             The facts are mostly admitted. Against the ID

         No.CD1680360 the petitioner appeared in the National Eligibility-cum-Entrance Test [NEET in short] for MD/MS/Post Graduate

         Diploma Courses [NEET-PG 2017]. From the scorecard, Annexure-2 to the writ petition, it appears that the petitioner has been

         declared qualified in the said examination. Thus, the petitioner

         would be considered against the seats available in various courses

         in terms of the merit. On 29.09.2016, the petitioner urged the

         Directorate of Health Services for issuing no objection certificate

         [NOC] or the sponsorship certificate so that he can derive the

         benefit provided under Rule 9(2) of the Medical Council of India

         Post Graduate Medical Education Regulations, 2000, in short MCI

         Regulations, 2000 for the in-service candidates. The petitioner

         was given no-objection for appearing in the NEET-PG 2017 by the

         memorandum dated 18.11.2016, Annexure-4 to the writ petition,

         issued by the Director of Health Services, Government of Tripura.

         From the memorandum dated 14.12.2011, Annexure-5 to the writ

         petition, issued by the Director of Health Services, Government of

         Tripura it appears that the petitioner had requisite the service in

         remote and/or difficult areas as defined by the State Government

         and hence, he was entitled to the benefit as provided below the

         Regulation 9(2) of the MCI Regulations, 2000 as amended by the

         notification dated 17.11.2009 adding after Regulation 9(2)(d) as

         follows:"Further provided that in determining the merit in
                           the entrance test for Post Graduate admission
                           weightage in the marks may be given as an incentive
                           @10% of the marks obtained for each year in-serviceW.P.(C) No.366 of 2017                                                       Page 3 of 14[4]in remote or difficult areas upto the marks of 30% of
                            the marks obtained."[3]             There is no dispute that the said clause was further

         amended by the notification dated 15.02.2012 and has been

         substituted by the following clause:"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 at
                            the rate of 10% of the marks obtained for each year
                            of service in remote and/or difficult areas upto the
                            maximum of 30% of the marks obtained in National
                            Eligibility-cum-Entrance Test. The remote and difficult
                            areas      shall   be    as     defined   by     State
                            Government/Competent authority from time to time."In the said notification dated 15.02.2012, it has been

         further provided that 50% of the seats in the Post Graduate

         Diploma courses shall be reserved for the Medical Officers in the

         government service, who have served for at least 3(three) years

         in remote and/or difficult areas. After requiring the PG Diploma,

         the Medical Officers shall serve for 2(two) years in remote and/or

         difficult areas as defined by the State Government/competent

         authority from time to time. So far the eligibility of the petitioner

         of coming under the said 50% quota for the medical officers in

         the government service is concerned, there is no controversy. But

         the respondents have clearly submitted that in view of the

         memoranda dated 30.10.2014 and 17.12.2015, Annexures-R/1 &

         R/3 to the reply, the petitioner cannot come under the said

         category. In Para-11 of their reply, the respondents have averred

         as under:"Accordingly, NOC was issued in favour of the
                            petitioner, but on scrutiny of records it appears that
                            petitioner has crossed the age limit of 45 years and
                            as per guidelines issued by the Government of Tripura
                            vide Memorandum dated 30.10.2014 one cannotW.P.(C) No.366 of 2017                                                            Page 4 of 14[5]appear and get a set of PG Medical Course as a
                             sponsor candidate who has crossed 45 years and as
                             such the NOC was issued to the petitioner earlier has
                             been cancelled by the vide Memorandum dated
                             25.11.2016 which was received by the petitioner on
                             14.12.2016"[4]             As referred in the reply, by the                memorandum

         No.F.13(1103)-HFW/2008 dated 25.11.2016, Annexure-R/2 to

         the reply, the petitioner's no objection certificate for NEET-PG

         issued by the memorandum dated 18.11.2014, Annexure-4 to the

         writ    petition,    has    been    cancelled    and    according     to    the

         respondents, since the petitioner had crossed the upper age limit

         of 45 years he was not eligible to be sponsored for the said

         course. In the writ petition, the said memorandum dated

         25.11.2016, Annexure-R/2 to the reply, has not been challenged.

         But     the     memoranda       dated     30.10.2014      and    17.12.2015,

         Annexures-R/1 & R/3 to the reply, are challenged by way of

         amendment of the writ petition. No doubt, if those memoranda

         are struck down the memorandum dated 25.11.2016, Annexure-

         R/2 to the reply, would be of no consequence. There is no

         controversy that the petitioner has crossed 45 years of age and

         according to the impugned guidelines as contained in the

         memoranda dated 30.10.2014 and 17.12.2015, Annexures-R/1 &

         R/3 to the reply, the petitioner is not eligible to be considered

         under 50% quota for the in-service candidates. The solitary

         question that whether the provision for upper age limit of 45

         years has been prescribed with competence or not, falls for

         consideration in this writ petition.W.P.(C) No.366 of 2017                                                           Page 5 of 14[6][5]             Mr. A.K. Bhowmik, learned senior counsel has founded

         his submission appearing for the petitioner by stating that the

         State does not have any competence to set up any restriction in

         the matter which falls within the exclusive domain of the Medical

         Council of India and the Central Government. According to Mr.

         Bhowmik, learned senior counsel, the MCI Regulations, 2000 has

         been framed in exercise of the power conferred by Section 33

         read withSection 20of the Indian Medical Council Act, 1955. As

         such, the State does not have any authority to restrict or impair,

         even by implication, any of its provisions or by any manner either

         by framing rules or by framing guidelines in exercise of its power

         underArticle 162or proviso toArticle 309of the Constitution of

         India. According to Mr. Bhowmik, learned senior counsel, even

         the power underArticle 162of the Constitution is subject to the

         provisions of the Constitution and the executive power of a State

         shall extend to the matters with respect to which the legislature

         of the State has power to make laws. Thereafter, Mr. Bhowmik,

         learned senior counsel has quite stoutly submitted that the

         matter of the medical admission falls under the Entry 66 of the

         List-I [the Union List] of the Seventh Schedule [underArticle 246of the Constitution] and hence, the provision/restriction of upper

         age limit as set up by the State is without the legislative

         competence          or   any   competence         whatsoever.    Hence,   the

         impugned          memoranda     dated         30.10.2014   and   17.12.2015,

         Annexures-R/1 & R/3 to the reply, are ultravires.In support of his

         contention, Mr. Bhowmik, learned senior counsel has referred aW.P.(C) No.366 of 2017                                                         Page 6 of 14[7]decision of the apex court inState of Uttar Pradesh and

         Others vs. Dinesh Singh Chauhan, reported in (2016) 9 SCC

         749, where the apex court had occasion to observe as under:"22. Reverting toRegulation 9of the Post Graduate
                         Medical Education Regulations, 2000, which have
                         been framed by the Medical Council of India in
                         exercise of power conferred bySection 33read
                         withSection 20of the Indian Medical Council of India
                         Act, 1956, it is noticed that the same has undergone
                         amendment from time to time. The decisions pressed
                         into service have considered the stipulations as
                         applicable at the relevant time. The recent decision in
                         the case ofSudhir N. vs. State of Kerala: (2015) 6
                         SCC 685, also dealt with Regulation applicable to
                         admission process commenced in the year 2009-2010.
                         We are, however, concerned with the admission
                         process for the subsequent academic years and
                         covered by the Regulations as in force.Regulation 9,
                         as amended and lastly notified and made applicable
                         from the Academic Year 2013-2014 vide Notification
                         No.MCI-18(1)/2010-Mad/62052 dated 15.02.2012,
                         reads thus:'9. Procedure for selection of candidate         for
                          Postgraduate courses shall be as follows:(I) There shall be a single eligibility cum
                             entrance      examination   namely    „National
                             Eligibility-cum-Entrance Test for admission to
                             Postgraduate Medical Courses‟ in each
                             academic       year.   The   superintendence,
                             direction and control of National Eligibility-cum-Entrance Test shall vest with National
                             Board      of   Examinations   under    overall
                             supervision of the Ministry of Health & Family
                             Welfare, Government of India.(II) 3% seats of the annual sanctioned intake
                             capacity shall be filled up by candidates with
                             locomotory disability of lower limbs between
                             50% to 70%:Provided that in case any seat in this 3%
                             quota remains unfilled on account of
                             unavailability of candidates with locomotory
                             disability of lower limbs between 50% to
                             70% then any such unfilled seat in this 3%
                             quota shall be filled up by persons with
                             locomotory disability of lower limbs between
                             40% to 50% before they are included in the
                             annual sanctioned seats for General Category
                             candidates.Provide further that this entire exercise shall
                             be completed by each medical college/
                             institution as per the statutory time schedule
                             for admissions.(III) In order to be eligible for admission to
                             any postgraduate course in a particular
                             academic year, it shall be necessary for a
                             candidate to obtain minimum of marks at 50th
                             percentile   in    „National    Eligibility-cum-W.P.(C) No.366 of 2017                                                           Page 7 of 14[8]Entrance Test for Postgraduate courses‟ held
                         for the said academic year. However, in
                         respect of candidates belonging to Scheduled
                         Castes, Scheduled Tribes, Other Backward
                         Classes, the minimum marks shall be at 40th
                         percentile. In respect of candidates as
                         provided     in  clause  9(II)  above   with
                         locomotory disability of lower limbs, the
                         minimum marks shall be at 45th percentile.
                         The percentile shall be determined on the
                         basis of highest marks secured in the All-India common merit list in „National
                         Eligibility-cum-Entrance       Test‟     for
                         Postgraduate courses:

                         Provided     when     sufficient number      ofcandidates in the respective categories fail to
                         secure minimum marks as prescribed in
                         National Eligibility-cum- Entrance Test held
                         for any academic year for admission to Post
                         Graduate Courses, the Central Government in
                         consultation with Medical Council of India
                         may at its discretion lower the minimum
                         marks required for admission to Post
                         Graduate Course for candidates belonging to
                         respective categories and marks so lowered
                         by the Central Government shall be applicable
                         for the said academic year only.(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 candidate shall be prepared on the
                         basis of the marks obtained in National
                         Eligibility-cum-Entrance Test and candidates
                         shall be admitted to Post-graduate 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 at the rate of 10% of the marks
                         obtained for each year of service in remote
                         and/or difficult areas upto the maximum of
                         30% of the marks obtained in National
                         Eligibility- cum Entrance Test, the remote and
                         difficult areas shall be as defined by State
                         Government/Competent authority from time
                         to time.(V) No candidate who has failed to obtain the
                         minimum eligibility marks as prescribed in
                         sub-clause (II) shall be admitted to any
                         Postgraduate courses in the said academic
                         year.(VI) In non-Governmental medical colleges/
                         institutions, 50% (Fifty Per cent) of the total
                         seats shall be filled by State Government or
                         the Authority appointed by them, and the
                         remaining 50% (Fifty Per Cent) of the seats
                         shall     be    filled   by    the     medical
                         colleges/institutions concerned on the basis
                         of the merit list prepared as per the marksW.P.(C) No.366 of 2017                                                     Page 8 of 14[9]obtained in National Eligibility-cum/Entrance
                             Test.(VII) 50% of the seats in Post Graduate
                             Diploma Courses shall be reserved for Medical
                             Officers in the Government service, who have
                             served for at least three years in remote
                             and/or difficult areas. After acquiring the PG
                             Diploma, the Medical Officers shall serve for
                             two more years in remote and/or difficult
                             areas as defined by State Government/
                             competent authority from time to time.(VIII) The Universities and other authorities
                             concerned shall organize admission process
                             in such a way that teaching in postgraduate
                             courses starts by 2nd May and by 1st August
                             for super specialty courses each year. For this
                             purpose, they shall follow the time schedule
                             indicated in Appendix-III.(IX) There shall be no admission of students
                             in respect of any academic session beyond
                             31st May for postgraduate courses and 30th
                             September for super speciality courses under
                             any circumstances. The Universities shall not
                             register any student admitted beyond the
                             said date.(x) The Medical Council of India may direct,
                             that any student identified as having obtained
                             admission after the last date for closure of
                             admission be discharged from the course of
                             study, or any medical qualification granted to
                             such a student shall not be a recognized
                             qualification for the purpose of theIndian
                             Medical Council Act, 1956. The institution
                             which grants admission to any student after
                             the last date specified for the same shall also
                             be liable to face such action as may be
                             prescribed by MCI including surrender of
                             seats equivalent to the extent of such
                             admission made from its sanctioned intake
                             capacity for the succeeding academic year.23. The structure of the provision, as in force, may be
                         somewhat different. Nevertheless, the legal principle
                         stated in the earlier decisions of this Court on the
                         question of justness of reservation and/or to provide
                         separate channel for the in-service Medical Officers
                         and/or grant weightage of incentive marks to
                         candidates having served in remote and difficult areas
                         may be of some relevance.24. By now, it is well established thatRegulation 9is
                         a self-contained Code regarding the procedure to be
                         followed for admissions to medical courses. It is also
                         well established that the State has no authority to
                         enact any law much less by executive instructions
                         that may undermine the procedure for admission to
                         Post Graduate Medical Courses enunciated by the
                         Central     Legislation   and    Regulations    framed
                         thereunder, being a subject falling within the Entry 66
                         of List I to the Seventh Schedule of the Constitution
                         (See: Preeti Srivastava vs. State of M.P.: (1999) 7 SCC120). The procedure for selection of candidates for
                         the Post Graduate Degree Courses is one such area on
                         which the Central Legislation and Regulations must
                         prevail.W.P.(C) No.366 of 2017                                                         Page 9 of 14[10]25. Thus, we must first ascertain whetherRegulation
                         9, as applicable to the case on hand, envisages
                         reservation of seats for in-service Medical Officers
                         generally for admission to Post Graduate „Degree‟
                         Courses.Regulation 9is a composite provision
                         prescribing procedure for selection of candidates -
                         both for Post Graduate „Degree‟ as well as Post
                         Graduate „Diploma‟ Courses.25.1. Clause (I) ofRegulation 9mandates
                             that there shall be a single National
                             Eligibility-cum-Entrance  Test  (hereinafter
                             referred to as NEET) to be conducted by the
                             designated Authority.25.2. Clause (II) provides for three per cent
                             seats of the annual sanctioned intake
                             capacity to be earmarked for candidates with
                             locomotory disability of lower limbs. We are
                             not concerned with this provision.25.3. Clause (III) provides for eligibility for
                             admission to any Post Graduate Course in a
                             particular academic year.25.4. Clause (IV) is the relevant provision. It
                             provides for reservation of seats in medical
                             colleges/institutions for reserved categories
                             as    per    applicable   laws   prevailing  in
                             States/Union Territories. The reservation
                             referred to in the opening part of this clause
                             is, obviously, with reference to reservation as
                             per the constitutional scheme (for Scheduled
                             Caste, Scheduled Tribe or Other Backward
                             Class Candidates); and not for the in-service
                             candidates or Medical Officers in-service. It
                             further stipulates that 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 the NEET and the
                             admission to Post Graduate Courses in the
                             State concerned shall be as per the merit list
                             only. Thus, it is a provision mandating
                             admission of candidates strictly as per the
                             merit list of eligible candidates for the
                             respective medical courses in the State. This
                             provision, however, contains a proviso. It
                             predicates that in determining the merit of
                             candidates who are in-service of Government
                             or a public Authority, weightage in the marks
                             may be given by the Government/Competent
                             Authority as an incentive at the rate of 10%
                             of the marks obtained for each year of service
                             in specified remote or difficult areas of the
                             State upto the maximum of 30% of the marks
                             obtained in NEET. This provision even if read
                             liberally does not provide for reservation for
                             in-service candidates, but only of giving a
                             weightage in the form of incentive marks as
                             specified to the class of in-service candidates
                             (who have served in notified remote and
                             difficult areas in the State).26. From the plain language of this proviso, it is
                         amply clear that it does not envisage reservation for
                         in-service candidates in respect of Post Graduate
                         „Degree‟ Courses with which we are presently
                         concerned. This proviso postulates giving weightageW.P.(C) No.366 of 2017                                                         Page 10 of 14[11]of marks to „specified in-service candidates‟ who have
                           worked in notified remote and/or difficult areas in the
                           State - both for Post Graduate „Degree‟ Courses as
                           also for Post Graduate „Diploma‟ Courses. Further, the
                           weightage of marks so allotted is required to be
                           reckoned while preparing the merit list of candidates.27. Thus understood, the Central enactment and the
                           Regulations framed thereunder do not provide for
                           reservation for in-service candidates in Post Graduate
                           „Degree‟ Courses. As there is no express provision
                           prohibiting reservation to in-service candidates in
                           respect of admission to Post Graduate „Degree‟
                           Courses, it was contended that providing for such
                           reservation by the State Government is not
                           impermissible in law. Further, there are precedents of
                           this Court to suggest that such arrangement is
                           permissible as a separate channel of admission for in-
                           service candidates. This argument does not commend
                           to us. In the first place, the decisions pressed into
                           service have considered the provisions regarding
                           admission process governed by the Regulations in
                           force at the relevant time. The admission process in
                           the present case is governed by the Regulations
                           which have come into force from Academic Year
                           2013-2014. This Regulation is a self- contained Code.
                           There is nothing in this Regulation to even remotely
                           indicate that a separate channel for admission to in-
                           service candidates must be provided, at least in
                           respect of Post Graduate „Degree‟ Courses. In
                           contradistinction, however, 50% seats are earmarked
                           for the Post Graduate „Diploma‟ Courses for in-service
                           candidates, as is discernible from Clause (VII). If the
                           Regulation intended a similar separate channel for in
                           service candidates even in respect of Post Graduate
                           „Degree‟ Courses, that position would have been made
                           clear inRegulation 9itself. In absence thereof, it
                           must be presumed that a separate channel for in-
                           service candidates is not permissible for admission to
                           Post Graduate „Degree‟ Courses. Thus, the State
                           Government, in law, had no authority to issue a
                           Government Order such as dated 28.02.2014, to
                           provide to the contrary. Hence, the High Court was
                           fully justified in setting aside the said Government
                           Order being contrary to the mandate ofRegulation 9of the 2000 Regulations, as applicable from Academic
                           Year 2013-14."[Emphasis added]


         [6]             Thus, Mr. Bhowmik, learned senior counsel has

         contended that the impugned memoranda have been issued

         encroaching the Entry 66 and hence, those are liable to be struck

         down and as corollary thereof, the petitioner be sponsored for his

         admission in the Post Graduate Course in terms of his merit under

         50% quota for the in-service candidate.W.P.(C) No.366 of 2017                                                           Page 11 of 14[12][7]             From the other side, Mr. S. Chakraborty, learned Addl.

         G.A. appearing for the respondents has submitted that there is no

         substance in the ground as projected for challenging the

         competence of the State in adopting his guidelines in respect of

         the upper age limit so far its relate to sponsoring a in-service

         candidate for admission in the Post Graduate courses in the State

         and outside the State. This does not relate to the subject under

         Entry 66 as referred by Mr. Bhowmik, learned senior counsel

         appearing for the petitioner. According to Mr. Chakraborty,

         learned Addl. G.A. State is not wholly divested of the power

         inasmuch as the said policy decision of the State is neither in

         conflict with the MCI Regulations, 2000 nor repugnant in view of

         Entry 66 of the Seventh Schedule of the Constitution.


         [8]              For appreciating the rival contentions, structured as

         above, it would be apposite to reproduce the provisions of Entry

         66 of the Seventh Schedule as Mr. Bhowmik, learned senior

         counsel has clearly made a statement that the petitioner is not

         pressing any other ground of foundation to challenge the

         impugned memoranda. Entry 66 of the Seventh Schedule reads

         as under:"66. Co-ordination and determination of standards in
                             institutions for higher education or research and
                             scientific and technical institutions."[9]              The setting up of restriction or upper age limit for

         purpose of sponsoring cannot be held as the subject matter of co-

         ordination and determination of standards in institutions for

         higher      education    or   research       and   scientific   and   technicalW.P.(C) No.366 of 2017                                                            Page 12 of 14[13]institutions. It is a policy of the State Government of sponsoring

         in-service candidates. The State Government has taken a policy

         decision that they shall not sponsor any candidate who has

         crossed 45 years of age despite he has 3(three) years of service

         in the remote and difficult areas. Since the ground of challenge is

         confined to the competence of the State in regard thereof, this

         court would not widen its consideration beyond the said ground.

         It may be noted that a Constitutional Bench of the apex court inDr. Preeti Srivastava and another vs. State of M.P. and

         others, reported in (1999) 7 SCC 120, has clearly observed as

         under:"35. The legislative competence of Parliament and the
                         legislatures of the States to make laws underArticle
                         246is regulated by the VIIth Schedule to the
                         Constitution. In the VIIth 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 42nd 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, whileW.P.(C) No.366 of 2017                                                              Page 13 of 14[14]prescribing the criteria for admission to the
                                    institutions for higher education including higher
                                    medical education, the State cannot adversely affect
                                    the standardslaid down bythe 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 Article254."[Emphasis added]


                 [10]            As this court has already observed that the setting up

                 of upper age limit for purpose of sponsoring is not a subject

                 matter ofArticle 66and since this field is not occupied by any

                 Union legislation, it cannot be held that the setting up of the

                 restriction in respect of the age as a matter of policy as notified

                 by the impugned memoranda is ultravires for being beyond the

                 competence of the State. Hence, this writ petition being devoid of

                 merit is dismissed. However, if the writ petitioner is entitled to

                 any benefit in terms ofDinesh Singh Chauhan(supra), he may

                 approach the competent authority. This order shall not create any

                 bar for the said purpose.There shall be no order as to costs.JUDGE



SujayW.P.(C) No.366 of 2017                                                                Page 14 of 14